NIGERIAN PORTS AUTHORITY (RESPONDENT)
(1975) All N.L.R. 151
Division: Supreme Court
Date of Judgment: 18th April, 1975
Before: Elias, C.J.N. Sowemimo and Ibekwe, JJ.S.C.
APPEAL from the High Court, Lagos.
The plaintiff/appellant sued in the Lagos High Court for a declaration that he was the owner of six cranes being unlawfully detained by the defendant corporation, also for compensation for loss of use of the cranes, and for recovery of the cranes.
Certain goods were advertised for sale and plaintiff successfully tendered for some items and duly paid for them including the six cranes. But a condition of the contract of sale was that goods not removed from the corporation's premises within seven days might be sold or otherwise disposed of by the corporation.
Plaintiff sued in detinue and had to prove that he was the owner of the cranes. Question is whether a valid enforceable contract existed between the parties, because if there was none, there could not be action for breach of contract or for loss of use or for detinue. The trial Court dismissed plaintiff's claim holding that there was no contract between the parties.
On appeal to the Supreme Court, appellant contended that while he would concede that the Statutory Corporations Service Board established by Decree in 1958 had the contractual power, it had duly delegated this power to the Nigerian Ports Authority as laid down in the Decree; all that the Statutory Corporations Service Board did was to have delegated its contractual power not to the Authority as it should have done, but to its subordinate organ over its head as it were. The respondent inter alia further submitted that the property in the cranes not having passed to the appellant because of the non-fulfilment of the condition that they should remove all goods sold to them within seven days, action in detinue was not maintainable. Supreme Court,
(1) that the action for breach of contract must fail since there was no contract between the parties.
(2) that the power to enter into a contract resides in the Statutory Corporations Tenders Board, not in the Nigerian Ports Authority;
(3) that there had been no proper delegation of the contractual power of the Board to the Authority so as to enable the latter to enter into a valid contract with appellant; and
(4) that appellant could not succeed in detinue, since he had failed to establish his ownership of the six cranes.
Case referred to:
Strand Electrical Engineering Co. Ltd. v. Brisford Entertainment Ltd. (1952 2 Q.B. 246 at 252.
Statutes referred to:
Sale of Goods Law Western Nigeria (Cap. 115 of 1959 Edition of the Laws) S. 51.
Decree No. 54, 1968, SS 4, 3 (1).
APPEAL from the High Court, Lagos.
SUIT NO. S.C. 402/74.
Mr G. O. K. Ajayi for Appellant.
Chief R. R. A. Williams, S.A.N. (with him Mr F. Olateru-Olagbegi) for Respondent.
ELIAS, C.J.N. (Delivering the Judgment of the court)-In Suit No. LD/1085/72 Kazeem, J, gave judgment in the High Court of Lagos State on February 1, 1974 against the plaintiff herein appellant. In the amended Writ of Summons, the plaintiff's claims against the defendant, herein respondent, are for:
"(a) a declaration that he is the owner of 6 No Stothert & Pitt Cranes nos. 511B, 513B 514B, 551C and 552C and that the continued detention thereof is wrongful.
(b) loss of use of the said cranes at the rate of
N2.50 for the first hour and N2.00 for each subsequent hour of each day in respect of each of the six cranes from the 15th December, 1971 till the date of writ;
(c) loss of use of the said cranes at the rate of
N2.50 for the first hour and N2.00 for each subsequent hour of each day in respect of each of the six cranes from the date of writ until the said cranes are delivered to the plaintiff; and
(d) an order for the delivery up of the said cranes to the plaintiff."
It is common ground that the defendant, by Notice No. 2352 dated July 24, 1971 and published in the Daily Times of Monday, July 24, 1971, Exhibit A, invited tenders for the sale of various condemned fixed assets of the defendant then lying at the Apapa Quays, Lagos. The plaintiff thereupon tendered for the following articles.:-
(i) Six (6) Stothert and Pitt Cranes Nos. 511B, 512B, 513B, 514B, 551C and 552c,
(ii) Two (2) Freight Lifters Nos. 202 and 203, and
(iii) Six (6) Conveyancer fork lifts.
By letter dated October 25, 1971, the defendant accepted the plaintiff's offer, at the same time requesting him to pay a total sum of £820 (
N1,640.00) for all the articles within 21 days (Exhibit B) and also making the following two stipulations inter alia:
"1. The Articles will be removed by you at your expense within 7 days of payment.
2. The Authority reserves the right to resell the articles should you fail to remove them within the time stipulated."
The plaintiff paid the defendant the full amount of £820 (
N1, 640.00) within the period, that is, on November 11, 1971, and obtained thereof a receipt (Exhibit C). On December 15, 1971, the defendant's storekeeper issued an order (Exhibit D) to the storekeeper that the articles be removed from the Apapa Quays. The learned trial Judge made the following observations:
"On this point, the evidence seems to be at variance with the pleadings. Paragraph 8 of the Amended Statement of Claim dated 31st July, 1973 was silent on the date but merely averred thus:
'The plaintiff submitted the receipt of the sum of £820 to the Stores Manager of the defendant for the release of the goods.'
Whereas, in the Amended Writ date 12th January, 1974, it was stated thus:
'On or about the 15th day of December, 1971, the plaintiff went into the Apapa Quays to remove all the items.'
In his evidence at the trial, the plaintiff testified that he had called on the defendant's official several times before the 15th December, 1971 for the release of the articles, but they failed to release them to him. However, when the plaintiff's 3rd witness, Mr Amosu was recalled for cross-examination by the defendant's Counsel, he said that it was on 15th December, 1971 that the plaintiff first made a request for the release of the articles by the defendant; and that he would have known if the plaintiff did so earlier, because he had not then proceeded on leave.
The plaintiff further said that all the other articles except the six cranes had been released to him; and that he had seen those cranes in use at the Apapa Quays by those to whom they have been hired out by the defendant."
During the trial, the plaintiff gave evidence in support of his claims but the defendant did not. Apart from the general traverse, the Statement of Defence contained the following averment in paragraph 3:
"The defendant avers that at all times material to the transaction which is the subject-matter of this action the Corporations Standing Tenders Board were the body responsible for the disposal of assets of the Nigerian Ports Authority and accordingly any contract for the sale of such assets should have been made with the said Board."
The plaintiff adduced evidence to show that the Corporations Standing Tenders Board established by decree No. 54 of 1968 had under section 4 of the Decree delegated certain of its powers, especially those relating to the award of contracts, to some statutory corporations, including the defendant. Exhibit J. paragraph 8 contains the relevant portion of the delegated powers as authorized at the Board's meeting of June 4, 1969, and subsequently confirmed at its meeting of July 7, 1969 and it reads as follows:-
"8. POWERS DELEGATED BY THE CORPORATIONS STANDING TENDERS BOARD TO THE CORPORATION
(a) Not applicable.
(b) 1. CONTRACTS THE VALUE OF WHICH EXCEEDS £500 BUT IS NOT MORE THAN £2.000. These shall be dealt with by the Tenders Boards of the Managements of the Corporations and the procedure shall be as follows:"
The following detailed procedural provisions some of which are also contained in Exhibits J, J1 and J2.
The learned trial Judge then permitted himself the following observations:
"This question of delegation was not however pleaded by the plaintiff. At the close of the plaintiff's case, it was submitted on his behalf that on 25th October, 1971 when the defendant accepted the plaintiff's offer for the sale of the six cranes as per the letter Exhibit B, there was a complete and binding contract for the sale of the cranes. But in spite of the plaintiff's demand for the release of the cranes, the defendant refused and as such, that refusal constituted a detinue by the defendant for which they were liable. It was further submitted that insofar as the defendant continued to hire the cranes out, the damages payable to the plaintiff would be at the rate of the hire charges collected by the defendant. Strand Electrical Engineering Co. Ltd. V. Brisford Entertainment Ltd. (1952) All E.R. 796 at p. 800, was cited in support. Finally, it was submitted that the plaintiff was entitled to the delivery up of the six cranes."
The defendant, for his own part, contended that there was never a valid contract of sale of the cranes between the plaintiff and itself, that the power to enter into any such contract was vested in the Tenders Board, and that the defendant had no power to enter into the alleged contract with the plaintiff. An alternative argument of the defendant was that, even on the assumption that there was a valid contract between the parties, the failure of the plaintiff to remove the six cranes within the stipulated period of seven days following the sale resulted in the property the stipulated of seven days following the sale resulted in the property in the cranes not passing to the plaintiff so as to enable him to sustain an action of detinue.
After reviewing the relevant provisions of Decree No. 54 of 1968 on the issue of delegation of powers and after examining the contents of Exhibit J, the learned trial Judge came to the following conclusion:
"In the circumstances, the delegation made by the Board was not in accordance with the law; and it could not have authorised the defendant to enter any contract with the plaintiff. I am therefore of the opinion that the contract between the parties (if any) was void.
Consequently, if there was no valid contract between the parties, the plaintiff' claim in detinue must fail."
In the alternative, the learned judge posed the question:
"Again, assuming that there was a valid contract between the parties, when did the property in the cranes pass to the plaintiff to enables him to maintain a claim for detinue?"
After a careful review of the law and the evidence on the point, the learned judge summed up the position in these words:
"Insofar as the plaintiff failed to remove the articles from the Apapa Quays within the time stipulated by the defendant, I am of the opinion that the property in the cranes did not pass to the plaintiff so as to confer ownership of the cranes in him.
The plaintiff has framed his claim in detinue in the erroneous belief that he became the owner of the cranes as soon as he paid for them. But since it has been shown that the property in the cranes did not pass to him in law, I am satisfied that the plaintiff' claim in detinue must fail."
In conclusion the learned judge gave the following judgment:
"Having found that there was no valid contract between the parties and that in any case the property in the cranes could not have passed to the plaintiff to enable him to maintain an action in detinue, the plaintiff's claim for a declaration that he is the owner of the cranes and that their continued detention is wrongful, has failed and it is hereby dismissed. The claim for their delivery to the plaintiff cannot also stand and it is also dismissed.
In view of any findings, supra, it is unnecessary to consider the plaintiff's claim for damages on the basis of the defendant's user of the crane whose property had not passed to the plaintiff. And in any case, that claim could not have succeeded."
It is against this decision that the present appeal has been brought on a total of ten grounds. Although all the grounds are argued, Mr Ayaji, learned for the appellant, dwelt mainly on grounds 2 and 3 which are set out thus:
"2. Error in Law:
The learned trial Judge erred in law in holding that the plaintiff ought to have pleaded that the Corporation Standing Tenders Board had delegated to the defendant Corporation when:-
(i) The plaintiff had in fact pleaded all the fact that he needed to prove to entitle him to judgment.
(ii) It was the defendant who raised a special defence to the effect that the defendant was incompetent under the statutes to enter into the contract.
(iii) The plaintiff was entitled to lead evidence to rebut the defence set up by the defendant.
(iv) Issue is deemed by rules by court to be joined on all matters raised in the Statement of Defence without the need to plead facts in rebuttal of issues raised in the defence.
3. Error in Law:
The Learned trial Judge erred in law in holding that the delegation by the Corporation Standing Tenders board was not in accordance with the law when:-
(i) The said delegation was expressed to be made to the Corporation.
(ii) The point taken by the learned trial Judge was not pleaded by the defence."
Learned Counsel's main submission was that the learned trial Judge erred in law in requiring the appellant to have pleaded that the Corporation Tenders Board had delegated its powers to making contracts to the respondent, the Nigerian Ports Authority); that it was for the respondent who had raised a special defence to establish it; that the appellant had in fact pleaded to all the facts necessary to entitle him to judgment; and that the appellant could adduce evidence to rebut the defence set up in paragraph 3 of the Statement of Defence by the respond. He argued that it was for this last that the appellant had tendered J at the trial to show that there had in fact been delegation of powers by the Corporations tenders Board. He further submitted that the learned judge was in error in looking into Exhibit J to discover that there had been non-compliance with the procedure laid down for awarding a contract where power had been properly delegated. This submission, if we may say so, seems difficult to support either in law or in logic. How is it possible to accept Exhibit J for certain limited purposes of the plaintiff/appellant in seeking to rebut the defence but to reject the same document for other legitimate purposes of the law which its very making was intended to serve? Exhibit J, tendered by the appellant himself, must be either wholly acceptable or wholly inadmissible; it cannot be served as suggested by learned Counsel for the appellant. The learned trial Judge is therefore right in reasoning as he did that, assuming that there was a valid contract between the parties, the proper procedure as can be gleaned from Exhibit J had not been followed.
Learned Counsel for the appellant's main submission is, however, that there had been a valid delegation by the Corporations tenders Board to the respondent, the Nigerian Ports Authority. He referred to section 4 of the Decree No. 54 of 1968 which provides:
"4 (1) The board may, subject to the provisions of this Decree delegate any of its powers as to award of contracts to any corporation to which this Decree relates and,
(a) to the extent that the board may continue to exercise general supervision over award of contracts; and
(b) subject to such conditions as the board may itself impose, it shall be lawful for the corporation in question to exercise the powers so delegated
(2) A delegation under this section may be made in respect of any category, or different categories, of contracts."
Mr Ajayi's interpretation of this provision is that is authorizes the Tenders Board to delegate certain of its powers, in this case the power to enter into certain contracts, to the statutory corporations of which the respondent is one;
that the Board can properly impose conditions upon the statutory Corporations as to how the powers should be exercised by the delegates of the statutory Corporation, that is to say, that the Board can direct the respondent and did so direct it to delegate its contractual powers to its own subordinate organ-namely, its own Tenders Board. If any case, it is not for outsiders dealing with the respondent to inquire into the precise internal arrangements made by the respondent with its own subsidiary as to the mode of carrying out the delegated powers once these have been shown to have been delegated to the respondent by the Corporations Tenders Board. To this submission of learned Counsel for the appellant Chief William's reply, with which we agree, is that the purported delegation To the respondent under Exhibit J was in reality to the Tenders Board of the respondent, Nigerian Ports Authority, and not the Authority itself; and that this is contrary to the real intendment of section 4 of Decree No. 54 of 1968 which does not authorize the Corporations Tenders Board to pass over the head of the Ports Authority, so to speak, and delegate its powers to the latter's subordinate organ. When section 4 speaks of conditions that may be imposed by the Board in making a delegation of its powers to a statutory Corporation, it does not envisage a situation in which it will turn its own agent-The Ports Authority-into a mere conduit pipe for the purveying of its orders to a subsidiary organ. If the Board could also tell the Authority not only that it can delegate but also how it should do it, then the whole object of the decree would have been defeated; namely, to take away the erstwhile powers of statutory corporations to enter into contracts and vest them in the Board, which could then delegate certain of these powers in appropriate cases. This seems to us to be the correct interpretation of section 4 of Decree No. 54 of 1968. In support of this view is the provision of section 3(1) of the Decree which reads:
"3 (1) The board shall subject to the section 3A to this Decree take over and supervise award of contracts in relation to any project (being a project of a value of not less than
N50,000) with which a corporation to which this Decree relates is concerned and enter into agreements or arrangements, as the case may be, pertaining to any project in which any such corporation is interested."
We are, therefore, in agreement with Chief Williams, learned Counsel for the respondent, who submitted that the real issues between the parties are two: (1) was there a valid contract between, and (2) could a plaintiff/appellant bring detinue when he did not claim as owner? The answer to the first question is, on the basis of the foregoing analysis, clearly in the negative since there had been no delegation by the Board to the Authority as envisaged in section 4 of Decree No. 54 of 1968, which delegation could also have entitled the respondent Authority to enter into the alleged contract. Instead there had been an ineffectual delegation to the Authority's Tenders Board. The condition in paragraph 8 of Exhibit J. requiring the Authority's subordinate organ to do the contracting went beyond what is contemplated by section 4 of the Decree, and there was according no delegation to the Authority to which alone a delegation could properly be made.
As regards the second question concerning the right to sue for detinue, it is settled law that a plaintiff in such an action must first establish that he is the owner of the thing the recovery of which he is seeking. A claim for detinue can succeed only if the plaintiff has established ownership in the six cranes, the subject-matter of the alleged contract. Appellant's Amended Statement of Claim does not show that he claimed ownership; it is not sufficient for a plaintiff to say that he has brought and that there has been a breach of contract nor had the appellant in this case established by evidence that he was the owner. All he said was that he attempted to remove the cranes within the seven days stipulated when, in view of exhibit defendants, a store manager ordered the ports manager to release the cranes; but that does not mean that the latter is not in law entitled to refuse to deliver, and that release was in fact refused after the return of the money to the appellant (See Exhibit E). The learned Counsel for the appellant's argument on the question that the issue of delegation need not have been specifically pleaded by the appellant is not convincing. The learned trial Judge is right in pointing out this lapse since in paragraph 4 and 6 of the Amended Statement of Claim the contract with the Nigerian Ports Authority was pleaded. In paragraph 3 of the Statement of Defence, it was averred that the contractual powers were not vested in the Authority but in the Corporations Tenders Board. In that state of the pleadings, the issue is clearly one of law, not of facts. The plea alleged contract and it was up to the plaintiff/appellant to plead specifically his counter-assertion of a different state of things. It is surely not enough merely to traverse paragraph 3 of the Statement of Defence, as the learned Counsel for the appellant insisted he had done. The new issue as to the delegation now raised by the appellant is one of fact that should have been pleaded. It is elementary that, it there is no valid contract between the parties, there can be no action in detinue in respect of the six cranes the return of which is being sought. We think it unnecessary to consider whether property in the cranes has passed to the appellant under the sale of Goods Law of Western Nigerian (Cap. 115 of the 1959 Edition of the Laws), since we have held that there was no contract because the Nigerian Ports Authority lacked the power to contract as it purported to have done. On our analysis, the only entity with the necessary competence to enter into a binding contract was the Corporation Tenders Board which could of course delegate those powers but which had not done so effectually. We do no think it necessary to question whether the appellant might now have sued the Board rather than the respondent or at least joined the Board as co defendant/respondent since it is the Board which ultimately is the true principal of the agent, the Authority. We are content to hold that there is no contract and that an action in detinue does not lie in the present case.
It would appear that the appellant might have sued for damages for breach of contract that is, for failure to deliver the cranes which had been duly paid fro. This could be done under section 51 of the Sale of Goods Law (Cap. 115) which provides as follows:
"(1) Where the seller wrongfully neglects or refuses to deliver the goods to the buyer, the buyer may maintain an action against the seller for damages for non-delivery.
(2) The measure of damages is the estimated loss directly and naturally resulting in the ordinary course of events from the seller's breach of contract."
Even such an action might still have to overcome the problem of the existence or of whether the right defendant had been sued, or whether the original sale was a conditional or an unconditional one.
The appeal, therefore, fails in its entirety, and it is dismissed. We hereby affirm the judgment of Kazeem, J, Suit No LD/1085/72 delivered on February 1, 1974, together with the order as to costs. Cost assessed at
N140 are awarded to the respondent in this appeal.