KHATOUN V. HOLLAND WEST AFRICA LINES & ANOR

• Pages: 174-179

174

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NIGERIAN SUPREME COURT CASES [19611 N.S.C.C.

KHATOUN V. HOLLAND WEST AFRICA LINES &

ANOR.

MOHAMMED KHATOUN

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APPELLANT

V

1.

HOLLAND WEST AFRICA LINES

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RESPONDENTS

2.

BANK OF WEST AFRICA LTD.

SUIT NO. FSC 172/1960

FEDERAL SUPREME COURT.

BRETT,

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F.J.

UNSWORTH.

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F.J.

TAYLOR,

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F.J.

15th June, 1961.

Civil actions- Bailments - Whether an Action in Contract or in Tort - Test

Negligence of Bailee

Commercial Law- Parties - Agency - Bank as Clearing Agent - Banking -

Practice and Procedure- Pleading Terms of Contract.

ISSUES:

1.

How do you determine when an action lies in contract or in tort.

2.

Whether a court is entitled to infer matters not specified into the terms of a

contract.

FACTS:

The plaintiff ordered some goods from abroad, and the suppliers shipped them

on a vessel belonging to a company of which the Holland Lines were the agents.

He complained that, although the goods were manifested for Lagos, they were

discharged at Apapa, and were transferred to Lagos a good deal later; that the

Holland Lines did not notify him or the B.W.A. of the discharge at Apapa; and that

the Holland Lines were negligent.

As regards the Bank, the plaintiff alleged that as clearing agents they were in

breach of their duty to clear the goods within a reasonable time.

The plaintiff said that his claim was founded on tort for damages due to ne-

gligence; the trial Judge was of the opinion that negligence as a cause of action

is confined to claims for physical injury (of which there was none to the goods)

and dismissed the action; and the plaintiff appealed on the grounds (a) that the

Holland Lines hac the goods as bailees, with a duty to land them within a reason-

able time, and (b) that the Bank had a duty as bankers to clear them within a rea-

sonable time - and that both were liable for breach of duty, which caused him

pecuniary loss.

HELD:

1. Whether an action is in contract or in tort does not depend on what the plaintiff

pleads or states: if he, in order to maintain his action is obliged to rely upon a

contract, the action is one of contract; if he is not obliged to rely on a contract,

then the action is one of tort.