–
THE GENERAL MANAGER, NIGERIAN RAILWAY
V.
THE UNITED AFRICA COMPANY LIMITED
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
22ND DAY OF NOVEMBER, 1954
W.A.C.A. No. 83/1954
LEX (1954) – XIV WACA 631 – 636
OTHER CITATION(S)
2PLR/1954/93 (WACA)
(1954) XIV WACA PP. 631-636
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
DE COMARMOND, Ag. C.J., NIGERIA
COUSSEY, J.A.
–
BETWEEN
THE GENERAL MANAGER, NIGERIAN RAILWAY – Appellant
AND
THE UNITED AFRICA CO. LTD. – Respondents
–
ORIGINATING COURT(S)
Appeal from a Supreme Court judgment delivered by Thomas, J., at Port Harcourt
–
REPRESENTATION
G. K. T. Amachree — for the Appellant
L. A. McCarmack — for the Respondent
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
TRANSPORTATION LAW — RAILWAY — BAILMENT:- Limitation of actions under the Railways Ordinance, section 40 — Bailment for reward — Onus in claim for goods not delivered — When cause of action arises.
–
CASE SUMMARY
Section 40(1) of the Railways Ordinance provides that:-
“No action shall be brought against a railway administration unless the same be commenced within six months after the cause of action arose “;
and section 40(2) provides that:-
“No action shall be commenced against a railway administration until one month at least after written notice of intention to commence the same shall have been served upon the railway administration by the plaintiff or by his attorney or agent. In such notice the cause of action and details of claim shall be clearly and explicitly stated.”
Goods consigned to the Company were landed at a port and stored in the Railway warehouse; they were not delivered to the Company, and the Company sued; the defence of the Railway was that they had been stolen by persons unknown and the Railway was not liable.
The Railway was paid storage dues and was thus a bailee for reward. The Company averred negligence and called evidence of it; the Railway called no evidence. The Railway relied on section 40(1) of the Railways Ordinance, but lost and appealed. The time-bar is discussed in the judgment in respect of the various goods lost. The writ of summons was issued on 19th November, 1952.
A.— Re bags of sugar: The Company wrote on 17th December, 1951, saying the bags had not been delivered and adding that if they were not, their letter stood as their claim. The Railway wrote on 31st May, 1952, saying the bags could not be traced and repudiating liability. The Company argued that time ran from 31st May, 1952, the Railway that it ran from 17th December, 1951.
B.— Turban cloth. This was landed about 22nd April, 1952; the Company gave notice of claim on 31st July, 1952; the Railway refused it on 16th October, 1952.
C.— Umbrellas. The Company gave a notice of claim on 10th May, 1952; the Railway informed the Company on 23rd July, 1952, that the goods could not be traced.
D.— Singlets. The Company gave notice of claim on 24th July, 1952.
E.— Tobacco. The Company gave notice of claim on 1st May, 1952; the Railway repudiated liability on 29th May, 1952.
–
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal in part; and varying the judgment) that:
(1) This being a contract of bailment for reward, it was for the Railway to prove that they had taken all reasonable precautions against loss and were not in default, but this onus the Railway had not discharged.
(2) As regards limitation, the contract of bailment subsisted until the Railway informed the Company, or until the Company came to know, that the goods had disappeared, or until the Company made a formal demand (as distinct from an inquiry) and was informed that the goods could not be delivered; and upon these principles being applied:-
A.— Although the Company made a claim in their letter of 17th December, 1951, the Company wrote under the impression that the sugar would be forthcoming and added the claim as a precaution for the purposes of section 40 (2) of the Ordinance; it was not until the Railway wrote on 31st May, 1952, that the sugar could not be traced, that the Company knew it was lost; therefore time began to run as from this date, which was within six months of 19th November, 1952, the date on which the action was begun;
B.— As regards the turban cloth the Company gave notice of claim on 31st July, 1952, so the action was in time;
C.— As regards the umbrellas, the Company by their letter of 10th May, 1952, giving notice of claim treated the contract as having been broken by the Railway, and time began to run from that date; the action on this claim was time-barred;
D.— For the singlets the Company gave notice of claim on 24th July, 1952, so the action was in time;
E.— The Company’s notice of claim dated 1st May, 1952, for the tobacco made it clear that they had made a formal demand before that date; the action on this claim was therefore time-barred.
Cases cited:-
(1) Reeve v. Palmer (1858), 5 C.B. (N.S.) 84, 93.
(2) Ballet v. Minguay (1943), K.B. 281.
(3) Bullen v. Swan Electric Co. (1907), 23 T.L.R. 258.
(4) Phipps v. New Claridge’s Hotel (1905), 22 T.L.R. 49.
(5) MacKenzie v. Cox (1840), 9 C. and P. 632.
(6) Goldman v. Hilt (1919), 1 K.B. 443.
(7) Travers (Joseph) & Sons v. Cooper (1915), 1 K.B. 73, 88.
(8) Williamson v. Verity, 24 T.L.R. (N.S.) 32.
–
–
MAIN JUDGMENT
The following Judgment was delivered:
DE COMARMOND, AG. C. J.
This is an appeal from a judgment delivered by Thomas, J., at Port Harcourt on the 5th November, 1953, in favour of the plaintiffs-respondents, the United Africa Company Ltd. Judgment was given for £3,264 16s. 10d. and £250 general damages with 200 guineas costs.
The application for writ of summons was filed on the 12th November, 1952, and the writ was issued on the 19th November, 1952.
The particulars of claim annexed to the writ of summons read as follows:
“The plaintiffs’ claim is against the defendant for non-delivery of the under-mentioned goods entrusted to the Railway Administration as warehousemen but the said Railway Administration after demand for delivery repudiated liability. Thereafter the statutory notice of intention to file action was given to the General Manager. The said goods non-delivered are as follows:-
| Goods | Value £ s. d. |
| 29 bags granulated sugar | 119 0 5 |
| 1 bale turban cloth | 70 7 5 |
| 2 bales cotton | 252 7 8 |
| 3 cases umbrellas | 913 5 6 |
| 2 bales singlets | 245 4 2 |
| 20 cases tobacco | 1,664 11 8 |
| £3,264 16 10 |
“The plaintiffs therefore claim the sum of £3,264 16s. 10d. and £500 damages for wrongful conversion and non-delivery of the said goods.”
The plaintiffs, in paragraph 7 of their statement of claim, amplified the description of their cause of action thus: “The defendant was negligent and omitted to take care of the said goods and by his neglect omission to take care and default is liable for damage caused by the non-delivery of the said goods and the plaintiffs therefore claim the sum of £3,264 16s. 10d. the value of the said goods and in the alternatives the plaintiffs claim for wrongful conversion and detinue and the plaintiffs also claim £500 in name of general damages.”
I am of opinion that the plaintiff could not base his claim on wrongful conversion.
This is a case where the principle enunciated in cases such as Reeve v. Palmer (1) or Ballet v. Minguay (2) applies, namely that if a bailee unlawfully or negligently loses or parts with possession, he cannot get rid of his contractual liability to restore the bailor’s property on the termination of the bailment, and if he fails to do so he may be sued in detinue. It is the duty of a bailee for reward to take all reasonable precautions for the safety of the goods bailed to him (see Bullen v. Swan Electric Co. (3)) and-the onus of proving that reasonable precautions have been taken lies on the bailee (see Phipps v. New Claridge’s Hotel (4)).
The learned trial Judge based his judgment, given in favour of the plaintiff, on the contract of bailment.
The statement of defence of the General Manager, Nigerian Railway, who was the nominal defendant by virtue of section 39 (2) of the Railways Ordinance (Cap. 191), contained denials that the cause of the non-delivery of the goods was due to negligence or omission to take care, or that the goods had been wrongfully converted or detained. The statement of defence also set out that the goods were stolen by unknown persons and that the defendant, as warehouseman, was not liable at common law.
The defendant also relied upon section 40 of the Railways Ordinance which reads as follows:-
“(1) No action shall be brought against a railway administration unless the same be commenced within six months after the cause of action arose.
“(2) No action shall be commenced against a railway administration until one month at least after written notice of intention to commence the same shall have been served upon the railway administration by the plaintiff or by his attorney or agent. In such notice the cause of action and details of claim shall be clearly and explicitly stated.”
Hereinafter, I propose to refer to the plaintiffs-respondents as the U.A.C. and to the defendant-appellant as the Railway.
It is not disputed that the Railway acts as warehouseman at Port Harcourt by receiving goods unloaded from ships, and storing them until the importers take delivery. The Railway is paid storage dues for this service which is therefore a bailment for reward.
In 1951 and 1952 certain goods consigned to the U.A.C. were landed at Port Harcourt and stored in the Railway warehouse, but the U.A.C. have not obtained delivery thereof. The Railway has pleaded that the goods were stolen by persons unknown and that the Railway is not liable for the loss.
One of the points argued at the hearing of this appeal was whether the onus of proof of the defendant’s negligence lay upon the plaintiff. I am of opinion that it is for the bailee for reward to prove that he had taken all reasonable precautions to guard against the loss of goods entrusted to him and that, in case of loss of the goods, he was not in default (see MacKenzie v. Cox (5), Goldman v. Hill (6), Travers (Joseph) & Sons v. Cooper (7) ). In the present case, the U.A.C. averred that the defendant had been negligent, and led evidence to show that the Railway did not have at the material time a sufficient staff to ensure proper supervision and that the gate pass system was lax. Moreover, one of the witnesses called by the U.A.C. was the Acting Senior Superintendent of Police for Rivers Province, who stated that he did not consider that the security measures in the wharf area were adequate.
At the hearing of the appeal, learned counsel for the U.A.C. was told by the Court that he need not submit arguments on the question of negligence.
As the defence called no evidence at the trial of the action, I am of opinion that the Railway has not discharged the onus of establishing that the cause of the loss of the goods claimed by the U.A.C. was not due to the negligence of the Railway.
The only remaining issue is whether the cause of action in respect of each of the claims made by the U.A.C. arose more than six months before action brought. The learned trial Judge rejected the defence based on section 40 of the Railways Ordinance (limitation of actions) and relied on a statement of the law on the subject appearing in Volume I of Halsbury’s Laws of England, Hailsham’s Edition, page 778, paragraph 1270, which reads as follows: “The Statute of Limitations, therefore, runs against the bailor from the date of demand and wrongful refusal to redeliver and not from any earlier date, even though the bailment was determined and a complete cause of action raised by a wrongful sale or other tortious act of the bailee committed more than six years before the date of the demand, for the bailee cannot set up his own wrongful act in answer to the demand for redelivery by the bailor.”
Williamson v. Verity (8) is one of the cases which support the statement of the law set out above. Another authority is Coldman. v. Hill (6) where the Court went so far as to say that in case of loss by theft without the bailor’s fault and where notice of the loss is not given to the bailor within reasonable time, then the bailee is liable unless he can show that even if he had given notice the goods could not have been recovered.
I would here point out that although the defendant (i.e. the Railway) pleaded that the goods were stolen by an unknown person or persons, there was no evidence whatever as to ·when the alleged thefts occurred.
The contention put forward on behalf of the U.A.C. is that time did not begin to run for the purposes of section 40 of the Railway Ordinance until the Railway supplied the information that the goods could not be traced.
It is not disputed that the U.A.C. paid storage dues in respect of the goods which form the subject matter of the claims. This was averred in paragraphs 2, 3, 4, 5, and 6 of the statement of claim and was admitted in paragraph 1 of the statement of defence.
It has not been suggested that the U.A.C. had to take delivery of the goods at any particular time.
It is therefore clear that the contract of bailment was a continuing one and subsisted up to the time when the goods concerned were delivered to the U.A.C.; or until the Railway informed the U.A.C. (or until the U.A.C. came to know) that the goods had disappeared; or until the U.A.C. made a formal demand for the goods (as distinct from an inquiry) and was informed that the goods would not or could not be delivered.
I will now proceed to apply the principles enunciated above to the facts of the case.
The first item of claim is in respect of twenty-nine bags of sugar.
The twenty-nine bags of sugar mentioned in the particulars of claim were landed at Port Harcourt ex S.S. Mendi Palm on or about the 25th July, 1951. They formed part of a larger consignment, and the first witness called by the plaintiff said that it was probable that the sugar (except twenty-nine bags) was taken delivery of by the U.A.C. between the 30th July and the 10th August, 1951. On the 17th December, 1951, the U.A.C. wrote the letter, exhibit H, to the Railway pointing out that twenty-nine bags of sugar had not yet been delivered and adding that the said letter “stands as our claim against the Nigerian Railway in the event of your failure to furnish the whereabout”. On the 12th March, 1952, the Railway wrote letter J to the U.A.C., informing the latter that the twenty-nine bags of sugar were still being traced. On the 31st May, 1952, the Railway wrote letter A which conveyed the information that the twenty-nine bags of sugar could not be traced and that the Railway repudiated liability for the loss because the Railway acted as warehouseman and all reasonable precautions had been taken to protect goods in their care. Under cover of letter A the Railway returned the debit note presented by the U.A.C. On the 26th February, 1953, after the U.A.C. had begun their action, the Railway wrote letter K stating that all efforts to trace the sugar had failed and declined to accept the claim made in respect of the sugar ex Mendi Palm: this belated reply was addressed to Palm Line Ltd. and attracted so little attention at the trial that no one inquired about the connection, if any, between Palm Line Ltd., and the U.A.C. I disregard exhibit K.
Before concluding my remarks on the claim relating to the twenty-nine bags of sugar I would mention that paragraph 1 of the statement of defence contains an admission that “on demand for delivery from time to time”, defendant stated that goods were being traced, until the 31st May, 1952, when defendants informed plaintiffs that the bags could not be found.
On the facts above set out, learned counsel for the Railway submitted that the cause of action arose on the 17th December, 1951, which is the date when the U.A.C. wrote letter H.
I am of opinion that, in the circumstances set out above, time began to run on the 31st May, 1952. My reason for so holding is that it is clear from exhibit H that the U.A.C. did not know that the goods were lost. In fact, there is no evidence whatever that they were lost at that time. The U.A.C. obviously wrote letter H while under the impression that the goods would be forthcoming but they took the precaution to add that if and when the Railway failed to find the goods, letter H would stand as their claim, that is to say, as their notice of claim under section 40 (2) of the Railways Ordinance.
Being given that the writ of summons was issued on 19th November, 1952, I am of opinion that the claim in respect of the twenty-nine bags of sugar was not time-barred.
The claim in respect of turban cloth is the next that has to be examined. The letter, exhibit L, dated 31st July, 1952, refers. The turban cloth was landed from the ship Eboe on or about the 22nd April, 1952. In their letter, exhibit L, the U.A.C. clearly state that the said letter is their notice of claim.
The Railway admitted in their statement of defence that the U.A.C. had paid for warehousing the turban cloth and that demand for delivery of same was refused on the 16th October, 1952, and the 3rd January, 1953, respectively (see paragraph 3 of statement of claim and paragraph 1 of statement of defence). As the writ was issued on the 19th November, 1952, i.e. less than six months after the 31st July, 1952, it seems to me to be beyond question that the claim was not time-barred.
The next item is three cases umbrellas. These cases were landed ex S.S. Winkleigh on or about the 8th December, 1951. The U.A.C. averred in the statement of claim that it was not until the 23rd July, 1952 (exhibit D), that then Railway informed the Company that the three cases could not be traced and that, prior to the 23rd July, the Railway had given plaintiff to understand that the goods were being traced. These averments were admitted by the Railway. However, in this instance, I note that the U.A.C. had given a notice of claim to the Railway by letter, exhibit E, of the 10th May, 1952. The aforesaid notice of claim was repeated on the 16th June, 1952 (see exhibit N2).
I am of opinion that exhibit E establishes that the U .A.C., on the 10th May, 1952, treated the contract as having been broken by the Railway. Time must therefore be reckoned from that date for the purposes of section 40 of the Railway Ordinance, and the claim was therefore time-barred.
I now pass to the next item, namely the two bales of singlets landed on or about the 29th April, 1952, ex S.S. Kamba. The Railway admitted paragraph 5 of the statement of claim which was to the effect that the goods had been received by the Railway and that two bales had not been delivered to the U.A.C. There is no other date mentioned in the pleadings. At the trial, the letter, exhibit F, of the 24th July, 1952, was put in by the U.A.C. That letter conveyed a notice of claim against the Railway in respect of certain goods including five bales of singlets. As the mark on the packages mentioned in the statement of claim and the mark given in exhibit F are the same, I conclude that the date of letter F is the date of the formal claim in respect of the two bales of singlets. The Railway has not adduced any evidence to the effect that a formal demand was made prior to the 24th July, 1952, for delivery of the two bales of singlets and I therefore hold that time began to run on that date and that the action was not statute-barred so far as the singlets are concerned.
The last item is twenty cases of tobacco. According to paragraph 6 of the statement of claim these cases were landed and delivered to the Railway on the 17th January, 1952. Repeated inquiries about the goods were made by the U.A.C. and evoked the reply that the cases were being traced. This went on until the 29th May, 1952, when the Railway repudiated liability.
I am of opinion that the U .A.C. cannot escape the implication of their letter (exhibit G1), dated the 1st May, 1952, in which they gave notice of their claim in respect of the twenty cases of tobacco: it seems obvious that such notice would not have been given unless a formal demand had been made prior to the 1st May, 1952. This being so, the action, in respect of the tobacco, must be held to be time-barred.
I would therefore allow this appeal to the extent of varying the decision of the Court below by directing that judgment be entered for £686 19s. 8d. and £50 general damages, and 100 guineas costs instead of £3,264 16s. 10d., £250 and 200 guineas respectively.
In all the circumstances of this case I would allow the appellants their costs on this appeal fixed at £53 1s. 0d.
–
FOSTER-SUTTON, P.
I concur.
–
COUSSEY, J. A.
I concur.
Appeal allowed in part; judgment varied.