ABUKAR V. THE STATE

• Pages: 313-317

313

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NIGERIAN SUPREME COURT CASES

[1969] N.S.C.C.

liability for the consequences of it excepted under any other term

The shipowner' general liability in respect of damage due to the ship's

unseaworthiness, accordingly, remains where the law places it, Underlying the

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whole contract of affreightment there is an implied condition upon the operation

of the usual exceptions from liability - namely, that the shipowners shall have

provided a seaworthy ship. If they have, the exceptions apply and relieve them;

if they have not, and damage results in consequence of the unseaworthiness,

the exceptions are construed as not being applicable for the shipowner'

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protection in such a case."

On the issue of estoppel, there is no doubt in our mind that the plaintiffs can-

not be estopped by the offer made in the letter (exh.C) when the defendants did

not accept it in full but made a counter-offer which the plaintiffs in turn did not ac-

15 cept.

Finally, we do not see any merit in the contention that there was no proof of the

special damage claimed by the plaintiffs. In the first place, the letter containing

the particulars of the special damages claimed (Exh. E) was admitted as evidence

with the defendants' consent, during the proceedings on 8th February, 1966. In-

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deed, it is perhaps significant, and Mr. Awopeju conceded as much, that the de-

fendants' counsel did not advert 10 this point during the trial in the court below. It

seems to us, therefore, and as Mr. Oyero rightly pointed out, that once the esti-

mated damages had been properly put before the court and admitted in evidence

by consent without challenge or comment, the court was entitled to adjudicate on

25 it by adopting the estimated amount and fixing the

quantum

of damages on that

basis.

Having heard all the arguments put forward on behalf of the defendants, we

are quite satisfied there is nothing which would justify interfering with the decision

of Sowemimo, J., in suit No.LD/556/1964 given on 30th March, 1966, in the Lagos

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High Court, and the appeal against the decision is accordingly dismissed with

costs to the respondents assessed at thirty-five guineas.

Appeal dismissed

35

ABUKAR V. THE STATE

40 TOM ABUKAR

V

THE STATE

SUPREME COURT OF NIGERIA

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ADEMOLA,

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C.J.N.

COKER,

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J.S.C.

MADARIKAN,

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J.S.C.

31st October,

1969

APPELLANT

RESPONDENT

SUIT NO. SC 158/1969

50

Criminal Law - Culpable homicide punishable with death - Accused had

pre-meditated mind to kill and found not provoked by words of his wife

that he was impotent - failure to take accused's confession before police officer

for confirmation not automatically fatal - Report of medical witness properly

put in by defence could not be challenged later by defendant.