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  • R. Benkay (Nig.) Ltd v. Cadbury Nig. Plc
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  • 2000-09-04
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R. Benkay (Nig.) Ltd v. Cadbury Nig. Plc

R. BENKAY NIGERIA LIMITED

V

CADBURY NIGERIA PLC.

COURT OF APPEAL

( LAGOS DIVISION )

G. ADESOLA OGUNTADE, J.C.A. (Presided and Read the Lead Judgment)

SULEIMAN GALADIMA, J.C.A.

KUMAI BAYANGA AKKAHS, J.C.A.

CA/L/320/98

MONDAY, 17TH APRIL, 2000

CONTRACT - Breach of terms thereof - Whether mitigation of loss sustained by a party thereto  enough to excuse breach.

CONTRACT - Enforcement of agreement - Need for plaintiff to abide by all clauses of contract  to succeed

CONTRACT - Terms of Contracts - Interpretation  thereof by Court - Need to reflect intention of parties to agreement

COURT - Interpretation of contractual terms by court - Need to reflect  the intention of parties to agreement

Issues:

  1. In view of the contract between parties to this suit and in the circumstances of this case, whether the trial judge was right in law to have held that the respondent’s action was not premature and that a cause of action had arisen against the appellant.
  2. Whether the learned trial judge was right to have dwelt extensively on the issue of Goods-in-Transit Insurance Policy (a substantive issue in the matter) and made a finding thereon at the interlocutory stage of the proceedings.

Facts:

The Plaintiff/Respondent who was the plaintiff before an Ikeja High Court, claimed from the Defendant/Appellant, the sum of N5,108,210.30 being the value of the goods given to the appellant, a transporter, to convey for the respondent from its depot at Agidingbi Lagos to one M. O. Okoro in Aba.

The defendant had earlier registered six vehicles with the plaintiff on the understanding that the defendant would convey the respondent’s manufactured goods to different locations to be nominated by the respondent from time to time.

The agreement of the parties was reduced into writing and clauses 1(a) and 5 of the said agreement read as follows:

1.             SECURITY OF OUR GOODS/PROPERTIES

(A) must  possess current Goods-In-Transit Insurance policies on all his registered vehicles from a reputable insurance company approved by Cadbury Nigeria PLC.

5.             TOTAL LOSS OF CONSIGNMENT

In the event of total loss of consignment or damage partly or wholly to the company’s products or goods through means of theft, hijacking, fire, water, accident, riot, strike, demonstration or any civil commotion for which  there is no insurance cover, the transporter would pay the total cost of the goods within 12 months. If there is insurance, the maximum amount recoverable shall be the total amount of loss/damage suffered. The transporter shall be called upon to  make good any difference between  the insurance settlement of the loss/ damage suffered. In  cases where  losses cannot be recovered within 12  months, the company reserves the right to take legal action to recover all the debts owed to Cadbury  Nigeria Plc. by the transporter.”

On the 11th of October, 1996 the appellant received the said goods on its vehicle with registration No. ECN 147  on the above terms. The appellant, however, lost the goods in transit and the respondent thereby filed an action to recover the value of the goods.

In reaction, the defendant filed a notice of  preliminary objection praying that the plaintiff’s claim be either dismissed or struck out on the premise that it was premature because no cause had arisen in view of clause 5 of the agreement as set out above.

In its ruling, the lower court struck out the objection for being  incompetent. The appellant thereby appealed to the Court of Appeal.