This is an appeal against the judgment of the Court of Appeal sitting at Ibadan in appeal NO.CA/I/186/2000 delivered on 5/4/2001 allowing the appeal of the present Respondent against the ruling of the trial Court delivered on 3/3/2000 dismissing the demurrer application of the said Respondent.

Sometime in 1996 the present Appellant entered into a contract with the Respondent for the carriage by sea of S.T.C. Photo processing machine from Canada to Nigeria for valuable consideration. Later on, Appellant entered into yet another contract with the Respondent, this time for the carriage by sea of a photo plotter MIVA 25 machine from Belgium to Nigeria.

In May, 1997 the Respondent by fax notified the Appellant that the goods have been placed on board the M.V. KAGORO, which was expected to berth in Nigeria on or before 25 May 1997. Along with the fax message came a copy of the Bill of Lading No. 30504 - MTL - LAG which did not include the photo plotter MTVA 25 machine; the Bill of Lading only contained the S.T.C. Photo processing machine. Appellant immediately notified the Respondent of the omission.

When the ship arrived in Nigeria, Appellant discovered that the photo plotter MIVA 25 machine was not included and the Respondent was duly notified and it was later discovered that the photo plotter MIVA 25 machine was misplaced by the Respondent in its warehouse. The Respondent admitted liability in letters dated 16th and 3Oth January, 1998 and offered monetary compensation which the Appellant rejected by letter dated 18th January, 1998 and 13th February, 1998 because, according to the Appellant, it was below the replacement cost of the machine. By a letter dated 7th October, 1988 the Appellant's solicitors demanded payment of US $98,520.00 as compensation for the loss but the Respondent replied on 19th October, 1998 expressing sympathy but contended that the claim was statute barred. The Appellant therefore instituted an action in the Federal High Court, Ibadan in suit No.FHC/IB/CS/10/99 claimingN14,925,639.00 being the money payable by the Respondent to the Appellant for breach of contract of carriage of goods by sea and negligent loss of goods. The Appellant contended in the Statement of Claim that the photo plotter MIVA 25 machine was misplaced within the Respondent’s warehouse and that no Bill of Lading was ever processed for its shipment; that it was never loaded on board the M.V. KAGORO and that the Respondent could therefore not avail itself of the defence of limitation of time under the Hague Visby Rules for the bringing of an action in respect of carriage of goods by sea.

The Respondent did not file a Statement of Defence but filed a demurrer for the dismissal of the action on the ground that the action was time barred on the provisions of the Carriage of Goods by Sea Act, Cap.44 Laws of the Federation of Nigeria, 1990 and/or the Contract of Affreightment evidenced by the relevant bill of lading pleaded by and/or upon which the Plaintiffs claim is founded.

In deciding the application, the learned trial Judge held that the action was not statute barred and dismissed the application. The Respondent was not satisfied with the ruling and appealed to the Court of Appeal which set aside the ruling of the trial Judge. The Appellant is dissatisfied with that judgment and has consequently appealed to this Court.