Where Lies the Duty to Keep Safe Custody of Goods

  1.  NIGERIAN PORT PLC

                                         V

1.      BEECHAM PHARMACEUTICAL LTD.

2.     SMITHKLINE BEECHAM (NIG.) PLC

Facts

The appellant, a statutory body was a bailee for reward of 5 (five) No. Containers carrying pharmaceuticals products imported from Singapore by the respondents about November, 1993. Four of the five containers were cleared and delivered to the 2nd respondent.

The container with No. KNLU 318007- 8 was allegedly broached while in the appellant’s custody in January, 1994.

After exchange of correspondences by the parties, investigation was conducted by the police. The respondent initiated their suit at the trial High Court to claim for the sum of #4, 785, 909.45 being value of the lost items of pharmaceutical products. #500,000.00 as general damages with interest at the rate of 2% per annum from November 28, 1993 until judgment and thereafter at the rate of 12% per annum until judgment sum is paid.

The learned trial judge found in favour of the respondents and entered judgment for them in the sum of #4, 785, 909.45. The claims in respect of general damages and interest were refused

The appellant appealed to the Court of Appeal, Lagos Division which dismissed the appeal with #10,000.00 costs to the respondent. Further dissatisfied, with the decision of the lower court the Appellant appealed to the Supreme Court.

Judgment

1. Section 66(2) (e) (now Section 86 (2)f) Nigerian Port Authority Act) of the Nigerian Port Decree No. 74 of 1993 provides

Section 66(2): The Company shall in no case be liable under subsection (1) of this section for a loss, misdelivery, detention or damage arising from:

(e) An act or omission of the consignor, consignee or depositor or of the servant or agent of any such person

Section 72(1) or section 66(2) or both sections of the section cannot exonerate a public authority that engages in contract outside its duty assigned to it by the statute that created it. See Compton v Council of the County Borough of Westham (1939) 1Ch. 771 at 778; 1939 LL ER page 199 .

2. In bailment, the duty to keep safe custody of the goods is on the bailee and not on the bailor. Such duty on the bailee is independent of any miniature arrangement by the bailor. The bailee cannot abdicate his responsibility and try to take umbrage under blame game canopy. The evidence discernible from the record points directly to the fact that the appellant neglected its duty of care and tried to shift same to the respondent. This clearly, is evidence of negligence on the part of the appellant.

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