Allen R. Moorjani t/a Sita's Clothiers Golf and Sport Shop v. J a S Forwarding (H.K.) Limited

HCA006978/1984

1984, No. 6978

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Hon. Macdougall, J.

Dates of hearing: 20th, 22nd, 25th-29th November, and 2nd-6th December, 1985

Date of delivery of Judgment: 19th December, 1985

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JUDGMENT

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1. The plaintiff, Mr Arjan (Allen) Moorjani, is an Indian merchant who for the past fifteen years has operated an import and export clothing business from a shop called Sita's in Chungking Arcade, Kowloon.

2. In his statement of claim he alleges that in November 1983 having entrusted to the defendant, J A S Forwarding (HK) Limited ("J A S (HK)"), a quantity of clothing valued at US$19,663 for carriage for reward from Hong Kong to Lome in Togo, West Africa, and for delivery to him there, it had either delivered the goods to some other person or persons contrary to his instructions or had converted them to its own use after their arrival in Lome.

3. He claims damages in the sum of US$22,663 being the value of the goods, US$3,000 for hotel accommodation for 30 days in West Africa, HK$56,000 in air fares incurred in making two return trips to West Africa to collect the goods, and HK$2,980 paid to JAS (HK) in respect of local handling charges.

4. The plaintiff testified that although he was aware that West African traders frequently enter into contracts with other merchants in Chungking Mansions, he personally had made no more than some ten to fifteen small cash sales to Africans during all the years he had carried on business there. It was not until November 1983 when a Nigerian named Ndefo Dilibe ("Dilibe") attended at sita and agreed to purchase the goods which are the subject of this action that he became involved in a substantial transaction with an African businessman. He acknowledged that Dilibe had been accompanied by another Nigerian, but maintained that he had not been introduced to him, that he did not come to know his name and that he did not enter into any business transaction with him.

5. Although the plaintiff said that he was aware that local merchants did not trust Africans and were therefore unwilling to do business with them otherwise than on a cash basis, he claims that he agreed to sell the goods to Dilibe on credit. According to him Dilibe had complained that someone had stolen US$4,000 from him during his stay in Hong Kong and that he had no cash with which to pay for the goods. The plaintiff also claimed that the currency control regulations in Nigeria restricted the use of letters of credit to the purchase of industrial goods and raw materials. Later in cross-examination, however, he said that it was possible to open a letter of credit in Lagos on payment of a deposit equal to 100% of the value of the goods. I have difficulty in understanding the relevance of the alleged theft of US$4,000 from Dilibe in motivating the plaintiff to agree to extend credit to him since the goods actually sold were valued at US$20,000 and could therefore have not been the subject of a cash purchase by Dilibe even if he had not suffered the loss of the US$4,000.

6. The plaintiff went on to say that having agreed to sell the goods to Dilibe they then entered into arrangements for payment. To this end Dilibe brought a Mr Gavin Lam of JAS (HK) to Sita's, where Lam told the plaintiff that JAS (HK) had an office in Lome and that arrangements could be made to send the goods to that office where they would be quite safe until he personally collected them. This proposal commended itself to the plaintiff as being a method by which he could retain control over the goods until he received payment for them from Dilibe in West Africa. He therefore agreed that JAS West Africa ("JAS (WA)") would be named as the consignee in the bill of lading.

7. According to the plaintiff the goods were originally packed into thirteen cartons, but that when it was found that it was too difficult to manhandle them onto the lorry for transportation to JAS (HK)'s warehouse prior to shipment, they were repacked into twenty one cartons which were all removed from Sits's for transportation to the warehouse one evening after 9.30 in the first week of November by a firm of carriers engaged by JAS (HK). Subsequently the goods were packed in a container and loaded aboard a ship belonging to the Maersk Shipping Line and shipped to Lome.

8. According to the plaintiff he received from Lam a non negotiable copy of the bill of lading which stated that the consignee was JAS(WA) and that the notifying party was Ste Wisdom Brothers International. The respective addresses of these parties in Lome also appeared in the bill. It was on the basis of presentation of this non negotiable bill to JAS(WA) that the plaintiff claims that he had been led to believe that he would be able to secure the release of the goods in Lome. He testified that Lam had informed him that, excluding local handling charges, the freight on the goods would be US$2,600 and that he would telex JAS(WA) and notify them that the plaintiff would collect the goods personally.

9. It emerged, however, during the course of the plaintiff's evidence, when, by mutual consent, the testimony of a witness from the Maersk Shipping Line was interposed, that this non negotiable copy of the bill of lading was not genuine. No reason was advanced by the plaintiff as to why Lam, who had left JAS(HK) at the end of July 1984 and was now living in Guam, would have wanted to give the plaintiff a bogus copy of the bill of exchange. Indeed it became clear towards the end of the trial, when the plaintiff's counsel required Mr Gary Lee, the general manager of JAS(HK), to tender in evidence the company file relating to this transaction, that it contained a genuine copy of the bill of lading.

10. It was noticeable that although the contents of the bogus bill and that of the genuine copy are almost identical they appear in a different format in each document. If for some unknown motive Lam had been minded to give a bogus bill to the plaintiff, there is no apparent reason why he would not simply have copied the details in such a manner as to ensure that they would be set out in the bogus bill in the same order and position as those in which they appeared in the genuine copy. Apart from any other considerations it would have been easier to have done it in this way.

11. It is clear, however, that the number of cartons specified in the bogus bill conforms with that in the genuine bill, namely twenty one. Since the plaintiff alleges that he had accepted the bogus bill as being genuine and had proposed to use it to secure the release of the goods in Lome it is apparent that, if he wished to be believed, he would have to maintain that the number of cartons he had packed and shipped to Lome was twenty one.

12. It is also evident from four debit notes in JAS(HK)'s file that the local transportation company that carried the goods from Chungking Mansion to JAS(HK)'s warehouse did so in four lots on four different days, namely, 25th and 26th October and the 3rd and 5th November 1983, and that the total number of packages it transported was thirteen. This is in direct conflict with the plaintiff's evidence that JAS(HK)'s carrier transported all the packages on the same evening in the first week of November. It was not suggested to Mr Lee when he produced these debit notes that they were other than genuine. Moreover, it seems highly unlikely that having loaded all the packages onto the lorry on one occasion the carrier would have delivered them to JAS(HK) in four lots on four different days. Such a possibility is so remote that I dismiss it.

13. The significance of this becomes more apparent when it is considered in conjunction with another matter which arose during the course of cross-examination of the plaintiff. Since he had alleged that he had sold the goods to Dilibe on credit it was not surprising that counsel for the defendant asked him whether he had taken out an insurance policy in order to protect his interest in them during the course of the sea carriage. It then came to light that although he had taken out such a policy he had failed to disclose its existence or give discovery of it. Counsel then demanded its production. Several days later when it was finally produced it was apparent that three alterations had been made to the original document on 22nd November 1983. The number of cartons had been altered from 30 to 13, the insured value from US$40,000 to $20,000, and the sailing date of the vessel. from 7th to 14th November.

14. Having produced the policy the plaintiff denied that he had been aware of these alterations. He was then asked whether on the previous day, which was several days after he had been asked to produce it, he had approached the underwriters and requested them to alter it again. He denied having done so.

15. However, Mr Clement Ho, one of the proprietors of the underwriters, testified that a Mr N.R.Moorjani, whom he had intermittently employed as a broker over the previous eleven years, had approached him on that day with a request that he re-alter the figures 13 and 20,000 so as to restore them to the original 30 and 40,000. Mr Ho told Moorjani that as the goods had long since arrived at their destination and the policy had expired, no alterations could be made. It is also clear from Mr. Ho's evidence that Mr N.R. Moorjani had been the broker through whom the policy had originally been issued.

16. Counsel for the plaintiff cross examined Mr Ho with a view to establishing that the request had simply been for information as to whether it was possible to effect alterations to the particulars in the policy. Mr Ho made it very plain, however, that the query was not one of a hypothetical nature but was a positive request to alter the relevant figures.

17. I am completely satisfied that Mr Ho was a reliable and truthful witness. In view of the time at which and the circumstances under which the existence of the policy was disclosed coupled with the fact that the person who made the request to Mr Ho to effect the alterations not only bears the same surname as that of the plaintiff but is the broker who was instrumental in issuing the policy originally, I have no doubt that the only person who could conceivably have been behind the request was the plaintiff himself.

18. Counsel for the plaintiff submitted that it must have been someone from the defendant company who had actuated Mr N.R. Moorjani to have approached Mr Ho. I have no hesitation in dismissing this as being an absurd hypothesis. Moreover, counsel failed to suggest to Mr Lee of JAS(HK), who was the last witness to testify, that he or anyone else from JAS(HK) had been responsible for the approach by N.R. Moorjani to Mr Ho.

19. An attempt by a party to tamper with a document that has been called for by the opposing party is a matter in itself of the utmost gravity and is sufficient to cast the most serious doubt on his honesty and credibility as a witness. The matter does not rest there, however, for as will become clear later, the restoration of the figures to their original state would have been of considerable assistance to the plaintiff in overcoming one of the difficulties with which he was faced during the course of the trial.

20. I now return to the plaintiff's narrative of the events Although the shipment arrived in Lome on 15th December 1983, the plaintiff did not obtain his visa to enter Nigeria, through which country he was required to pass to enter Togo, until 29th December of that year. If his intention had been as he professed it to be, namely to collect the goods personally in Lome, it seems strange that he did not arrange his trip so that his arrival in Lome would coincide with that of the goods or be shortly thereafter.

21. The plaintiff sought to explain this by claiming that Lam had told him that no demurrage would be charged on goods for the first 28 days after their arrival. Mr Lee of JAS(HK) testified that from his experience it was the practice worldwide that only between four and seven days are allowed free of demurrage. He also stated that he personally had not told the plaintiff that there was a 28 days charge free period after the arrival of goods in Lome, and that in his view it was impossible that anyone from JAS(HK) would have told him such a thing.

22. The plaintiff conceded that he now realised that the procedure of naming JAS(WA) as the consignee in the bill of lading, which, according to him, JAS(HK) had recommended as being the best method of safeguarding his goods, in fact conferred no protection at all. He contended, however, that as this was his first shipment to West Africa he had been ignorant of the existing practice and had simply accepted Lam's assurance at face value. He also agreed that he now realised that had he given instructions to JAS(WA) to act as his agent to collect from Dilibe both the money due on the goods and the freight payable in respect of their carriage, he would have been completely protected. This would simply have involved giving written instructions as to his requirements and adding the endorsement "To the order of shipper" to the bill of lading.

23. I find it very difficult to understand why, if it had been his intention to ensure that the goods did not fall into Dilibe's hands before the purchase price and freight charges had been paid, the plaintiff, a man of some thirteen years experience as an importer and exporter, would have failed to have taken these simple and obvious precautions or, alternatively, if he had intended to take delivery of the goods personally, would not have seen to it that his name had been entered in the bill of lading as the consignee and that the set of original bills had been handed to him instead of sending them to JAS(WA) as consignees.

24. Likewise, I have great difficulty in accepting that, had Lam or any other employee of JAS(HK) been told of the plaintiff's intention personally to collect the goods in Lome, he would have recommended that JAS(WA) be named as the consignees in the bill of lading and have sent the original copies to them. There is no suggestion that Lam or JAS(HK) had acted dishonestly. Indeed, in his final address, counsel for the plaintiff contended that JAS(HK) had merely been negligent in advising that the shipment be made in the manner in which they had. It was also clear that counsel accepted on behalf of his client that JAS was a reputable worldwide group of forwarding agents. The likelihood of both Lee and Lam having been ignorant or negligent strikes me as being so remote as to be negligible.

25. The plaintiff also admitted that in the first week of January 1984 he had given Lam a cheque for HK$2,980 in respect of the local handling charges, but that on 6th January he countermanded payment notwithstanding that Lam had requested him not to do so as the cheque had already been handed to one of the directors of JAS(HK). According to the plaintiff he had not paid JAS(HK) for the sea freight prior to shipment because he had wanted to ensure that he would receive the goods on his arrival in Lome, but that since the local handling charges were "only in a small amount and presented no problem" he had decided to pay for them by cheque in Hong Kong.

26. Later in cross examination he said that he had stopped the cheque because he had had a change of mind and decided to pay for them in Lome after he had received the goods and "had plenty of money". It is true that he had been operating an overdraft for some considerable period prior to and including this point of time, but he did not suggest that payment of the cheque would have caused him to exceed the limit allowed under the terms of the overdraft.

27. Since, however, he maintained that his intention had always been to collect the goods in Lome and, if his story be true, must therefore have known that he would not receive payment for them until after their delivery, it is strange that he should suddenly feel so strongly about payment of this "small amount" in handling charges that he would actually go so far as to stop payment of the cheque in defiance of an express request that he not do so. It seems to me that a more likely explanation is that not having received payment for the goods by this time the plaintiff began to fear that Dilibe might take delivery without settling with him, so he stopped payment of the cheque in the hope that JAS(HK) would take steps to hold up delivery in Lome, thus giving him time to fly there to safeguard his interests.

28. Indeed, the plaintiff did not leave Hong Kong until 16th January 1984. He explained that he had intended to depart on 1st or 2nd January but that his trip had been delayed because of a coup d'etat in Nigeria on the 1st and that he travelled via London and reached Lagos on 18th January. On arrival the plaintiff contacted Dilibe who informed him that he was temporarily unable to leave Nigeria because of the political situation but would join him in Lome some three or four days later where he would pay him for the goods. On 24th January the plaintiff flew to Lome and attended JAS(WA)'s office which was situated in the house occupied by its managing director, Mr Asante. He claims that after he had shown Asante the copy of the non negotiable bill of lading and had asked him to release the goods, Asante informed him that the freight charges were US$4,500. Since he had had already been told by Lam in Hong Kong that the charges would be US$2,600 he raised objection to paying the larger amount.

29. Eventually Asante agreed to telex JAS(HK) to clarify the matter. On the following day the plaintiff returned to the office where Asante told him that he was obliged to pay US$4,500. As the plaintiff had only brought US$3,000 with him, he was forced to return to Lagos to raise the balance through an Indian businessman. On 31st January he returned to Lome with the extra money and handed the non negotiable copy of the bill of lading to Asante who then informed him that in the meantime JAS(HK) had sent a telex instructing him not to hand the goods to the plaintiff so he had sold them.

30. The plaintiff demanded to see the documentation on which he had released the goods but Asante refused to do so and ordered him out of his office. Sometime later the plaintiff saw Dilibe in Lome and, on asking him whether he had obtained the goods, was told that he knew nothing about them. The following day the plaintiff left for Lagos and eight days later returned to Hong Kong. He immediately telephoned JAS(HK) and asked for Lam only to be told that he no longer worked there.

31. According to the plaintiff he made numerous telephone calls in an attempt to ascertain whether this was true and on each occasion he was given the same answer. Strangely, it appears that he made no attempt to ask for Mr Lee, whom he agrees was present with Mr Lam at the relevant meeting at Sita's. Nor did he attempt to ask to speak to anyone else in JAS(HK). Even stranger is the fact that he did not personally visit the defendant's office in order to demand an explanation for what had happened in Togo. I find this to be an extraordinary omission on his part. It seems to me that anyone in his situation would certainly have made every attempt to resolve the matter with a senior representative of the defendant company. Furthermore, it is clear to me on the evidence that Lam did not leave the employment of JAS(HK) until the end of July. That being so, I can see no reason why members of the staff of JAS(HK) should have repeatedly told the plaintiff over the telephone that Lam was no longer working there.

32. After a period of two and a half months in Hong Kong during which he neither made enquiries of the defendant nor instituted any legal action, he returned to Lagos on 29th April and tried without success to locate Dilibe. On 25th May he flew to Lome and enquired unsuccessfully from Asante as to Dilibe's home address in Lagos. He then returned to Lagos where he spent two months before flying back to Lome for a holiday. Two months later he again went to Lagos in search of Dilibe but was unable to locate him. Finally, a month later, the plaintiff returned to Lome in connexion with a container of goods unrelated to the present case.

33. During one of his visits to Lome he had obtained a photocopy of the original bill of lading showing that the goods had been collected and sighed for by Asante. It was not until 3rd July 1984 that the plaintiff caused his solicitors to write a letter of demand to JAS(HK). It is also curious that in that letter it is alleged that he had discovered that the goods had disappeared from the premises of JAS(WA) and that it seemed that they had been lost. This, of course, is inconsistent with his testimony that Asante had told him that he had sold the goods.

34. I consider that it is highly unlikely that even if Asante had sold the goods he would have been so foolish as to have told the plaintiff that he had done so when it would have been a simple matter for him merely to have explained that he had caused the goods to be released to the clearing agents for distribution to Okafor and Dilibe.

35. Asante in fact made the trip to Hong Kong to give evidence at the trial. He testified that in early December he had received instructions that a container of goods would arrive in Lome on a certain Maersk Shipping Line vessel for a Mr Okafor and a Mr Dilibe, and that or about 20th January 1983 two men claiming to be Okafor and Dilibe came to his office to arrange to collect the container which had by then arrived and for which he had received the bill of lading. On being told that the freight was US$5,321 they insisted that this sum was excessive and Asante agreed to telex JAS(HK) to ascertain whether that office would be agreeable to a reduction to US$4,500. On 23rd January he received confirmation that this was acceptable, and some time later Ckafor and Dilibe returned to his office with invoices from Sita's relating to the goods. Asante produced to the court the invoices that Dilibe had presented to him. He explained that he had not thought to bring those that had been given to him by Okafor because he had understood that the trial only concerned a dispute over the goods that had been sold to Dilibe. I accept this as being true. It is clear from a contemporaneous telex that the plaintiff's complaint had in fact related only to Dilibe.

36. The invoices, however, are significant in two respects. First, the plaintiff does not dispute their genuineness, and secondly, Dilibe's name and passport number are clearly typed on each of them. If the plaintiff's intention had been to collect the goods personally in Lome there is no apparent reason why Dilibe's passport number should appear on them. On the other hand, if as the defendant contends, it had been the intention of the parties that Dilibe himself should take delivery of goods, it is entirely natural that his passport number should appear on the invoices together with his name so that when he presented them to JAS(WA) to secure the release of the goods they would match the name and number on his passport and thus establish his identity.

37. In the meantime the plaintiff had also visited Asante at his office. He informed him that he had sent a container of goods for collection by some Nigerians and that he wanted to see them because one of them named Dilibe had only paid him US$4,000 in Hong Kong in part settlement of the price of the goods. He therefore requested Asante not to release the bill of lading to Dilibe. On being asked by Asante to produce documentation tosupport his claim, the plaintiff merely offered him his name card. Nevertheless, as a consequence of what the plaintiff had told him, Asante telexed JAS(HK) and informed them that the plaintiff had claimed that Dilibe had not paid for his goods and sought their advice as to whom they actually belonged. He also requested that, in the event that the plaintiff owned them, the plaintiff's main office would need to send an authorisation to him before he could release them to the plaintiff.

38. On 30th January Asante received a telex from JAS(HK) stating that there was an amount due in Hong Kong by the plaintiff in respect of the goods, and requesting him not to release them to the plaintiff unless he settled this amount. The telex then went on to state that if the plaintiff "wanted to get back his goods" Asante could debit all service charges to him.

39. The plaintiff contends that this is clear evidence that the defendant had admitted that the goods belonged to him and that it supported his case that Lam and Lee had always accepted that he would personally collect them in Lome. Mr Lee, however, indicated that although he had always assumed that Okafor and Dilibe would take delivery, and not the plaintiff, JAS(HK) was only concerned at the time when this telex was sent to ensure that, if the plaintiff was now claiming that the goods relating to Dilibe belonged to him and not to Dilibe, he should pay for the local charges represented by the amount of the stopped cheque before he received the goods.

40. Notwithstanding JAS(HK)'s telexed request, Asante took the view that as there was no dispute as to Okafor's claim to collect such goods in the container as belonged to him, the proper course was to accompany Okafor and Dilibe to the office of the agents for the shipping line so that the freight could be paid in order to secure the release of the goods to the clearing agents. The clearing agents in fact took delivery on the same day and placed the container in their warehouse at the harbour.

41. Asante explained to the court that where JAS(Wk) were named as the consignee for delivery to the actual buyer, the practice was that he would receive instructions in advance as to the buyer's identity and that when the latter presented him with the invoices relating to the goods and furnished proof of his identity by production of his passport, and paid any freight due on the consignment, he would release the original bill of lading to him to enable him to clear the goods through the Port Authority and the agents for the shipping company. Asante made it clear that he would not accept a non negotiable copy of the bill of lading as a basis for the release of the original bill.

42. There was no evidence given at the trial which contradicted Asante's testimony as to the relevant practice. If the plaintiff had in fact presented the non negotiable bill of lading to Asante, as the plaintiff alleges, I have little doubt that Asante would have realised that it was not genuine, and therefore, whether he was a truthful witness or not, would have made use of such an incident as a further justification for adopting the course which he had. A dishonest witness would not have been likely to miss such an opportunity to discredit the plaintiff's testimony. Asante's claim that the plaintiff had not shown him the bill therefore renders his evidence more credible.

43. I have already stated I am satisfied that it was the plaintiff who was responsible for the making of the bogus bill. Although it is difficult to be sure of his motivation for so doing, I suspect that he had realised that in order to give some semblance of credibility to his claim that at all times JAS(HK) had understood that he would travel to Lome to collect the goods personally, he would need to present some evidence that he had disclosed to JAS(HK) his continuing interest in the goods. A failure to obtain even a non negotiable copy of the bill would strongly suggest that he had not instructed Lam and Lee that he was the person to take delivery in Lome. It is plain that this would not sit easily with the evidence which he proposed to give at the trial. Although he must have realised that the bill would readily be seen to be false, he sought to overcome this difficulty by alleging that Lam had given it to him and so shift the blame to him. Moreover, the plaintiff would have known at the time when the action was commenced, namely October 1984, that Lam had left the defendant company and that therefore there would be every chance that he might not be available to testify at the trial.

44. Asante also told the court that on 31st January, after the release of the goods to the clearing agent but before they had been collected by Okafor and Dilibe, the plaintiff held a discussion in his office with Dilibe and had agreed that he could take delivery of the goods and that the plaintiff would accompany him to Nigeria to obtain settlement of the outstanding balance. This evidence was corroborated by Mrs. Asante who had been present during the course of the discussion.

45. Finally, Mr Lee testified that he was present with Lam when the arrangements had been made for to the shipment of the goods to Lome. This was not challenged by the plaintiff. According to Lee there had been a conversation between Okafor, Dilibe and the plaintiff during which it emerged that Okafor and Dilibe had each purchased some goods from the plaintiff and that Dilibe had given a deposit in respect of those purchased by him. The three men then made arrangements with Lee and Lam for the goods to be delivered to JAS(HK) for shipment. Okafor and Dilibe further requested that both lots of goods be shipped together in a groupage container so that they could enjoy a cheaper freight rate, called the box rate, which would not have been available to them had they decided to ship separately. They also requested that the defendant's agent in Lome, namely JAS(WA), be named in the bill as the consignee because they feared that there might be a coup d' etat in Nigeria at any time and considered that it would be safer if the goods were delivered to Lome where JAS(WA) would also arrange the inland transport procedures on their behalf. Okafor and Dilibe also gave instructions that they would attend in Lome to collect the goods and named Ste Wisdom Brothers International as the notifying party as it was necessary to nominate someone in Lome to contact them in Nigeria upon the arrival of the ship. Mr Lee told the court that the plaintiff raised no objection to these proposals.

46. According to Lee the practice is that where a shipper, in this case the plaintiff, gives instructions that he intends to collect the goods at the port of destination, either his name or the words "To the order of shipper" should appear in the consignee column in the bill of lading. He denied that the plaintiff had given any indication that he intended to collect the goods personally in Lome. Moreover, Mr Lee pointed out that the letters CY/CY had been endorsed on the bill. The first CY indicates that a full container had been loaded in Hong Kong. The second CY indicates that at the port of destination the shipping line would simply hand the whole container to the person named as consignee who would then be responsible to distribute the contents to the persons entitled to them.

47. Had the bill been marked CY/CFS, however, the shipping line would bear the responsibility of opening the container in Lome and distributing the contents to the various owners. Since this obviously involves it in additional work the shipping line would, in a CY/CFS Consignment, charge the standard freight rate which is higher than the box rate that was charged on the container in the present case. The plaintiff called no evidence to show that the rate charged was not the box rate. Indeed he called no evidence on the subject of freight charges other than to claim that Lam had informed him that they would be US$2,600.

48. I am quite satisfied from Mr Lee's evidence that the endorsement CY/CY indicated that JAS(WA) was to take delivery of the container and distribute the contents to the owners in accordance with the markings which he had personally seen on the individual cartons.

49. Moreover, the bill of lading was marked "Freight collect". This indicated that the freight was not the responsibility of the shipper but would be collected at the port of destination from the consignee named in the bill. Had the shipper given instructions that he would collect the goods at the other end, the endorsement "Freight prepaid" would have appeared on the bill and the shipper would have been debited with the relevant amount of freight in Hong Kong. It is clear from the invoice presented by JAS(HK) that there is a blank in the box provided for freight charges and that only the charge for Hong Kong handling charges had been debited to the plaintiff. Mr Lee explained that this demonstrates that there had been no intention to charge the plaintiff with the shipping freight and that it was to be paid in Lome by Okafor and Dilibe before JASWA) would release the original bill of lading to enable them to collect the goods.

50. Mr Lee said that he had explained to the parties that the benefit of sending the goods in one groupage container was that the charge for shipping freight would be US$4,500 rather than a sum in excess of US$5,000.

51. When asked whether he had told the plaintiff that the freight would be US$2,600 he explained that this was impossible because it meant not only that JAS(HK) would not receive the half share of the freight charges due to it under its arrangement with the shipping line, but would actually lose money on the transaction, because, in addition to the $2,600 half share payable to the shipping line through its agents in Lome, there were surcharges and commission also due to them. This was borne out by the receipt given by the agents for the shipping line in Lome. I therefore do not consider it is likely that there is any truth in the plaintiff's contention.

52. Mr Lee testified that he had seen the packages in his company's warehouse prior to their being placed into the container. He recalled that the carriers employed to collect goods from Sita's had delivered 12 or 13 packages to the warehouse and that these were marked with Dilibe's name and address. Another 8 or 9 packages had been delivered to the warehouse by another carrier not employed by JAS(HK) and these bore Okafor's name and address. On 9th November all 21 packages were transported by a carrier to the shipping line. A debit note in JAS(HK)'s file clearly supports this evidence.

53. I am satisfied from Mr Lee's evidence and the carriers debit notes that 13 packages had been transported from Sita's to the defendant's warehouse in four lots in late October and early November, that 8 packages had been delivered to that warehouse by another carrier, that the 13 packages related to Dilibe and that the 8 packages related to Okafor, and that all 21 packages were removed to the shipping company for transportation in one container to Lome.

54. Further confirmation of this appears on the undisputed debit note that JAS(HK) prepared on 11 November and presented to the plaintiff. It is clear from this document that 21 packages were involved in the shipment to Lome and that cartage fees had been charged by JAS(HK) to the defendant in respect of four lots of 5, 3, 2 and 2 packages respectively. It is true that insofar as Hong Kong cartage fees are concerned, this debit note reveals a total of 12 packages, not 13, but Mr Lee explained that due to a typopgraphical error one lot of 3 had been recorded as 2. 1 have no hesitation in accepting this explanation as the carrier's debit notes clearly support it and their accuracy was not challenged.

55. I have not the slightest doubt that the plaintiff in fact sold goods to both Okafor and Dilibe and that his claim that the 21 packages related entirely to Dilibe is completely false. The contemporaneous debit notes and telexes all point irresistibly to separate sales to Okafor and Dilibe.

56. It is now pertinent to refer back to the attempt to alter the insurance policy taken out by the plaintiff to cover carriage of the goods by sea.

57. As the plaintiff himself agreed, the policy had been taken out before the goods were shipped. If the only goods to be shipped had related to Dilibe, and if, as the plaintiff contends, they were valued at $20,000, there is no reason to take out a policy for an insured value of $40,000. The subsequent legitimate alteration, made on 22nd November after the ship had sailed, of the sum of $40,000 to one of $20,000, strongly suggests that in the meantime Okafor had paid for his goods and accordingly the plaintiff, no longer having any insurable interest in them, had reduced the insured value to cover only those relating to Dilibe. This reduction, of course, correspondingly reduced the amount of premium payable on the policy.

58. Having failed to disclose the insurance policy on discovery, and having been asked to produce it during the trial, the plaintiff was confronted with the problem that, unless something was done, the alteration of the number of cartons from 30 to 13 and the insured value from $40,000 to $20,000, would now inevitably come to light. He therefore sought to have the insurance company restore the figures to their original state. In so doing he had hoped to conceal evidence, which severely damaged his case, that all 21 packages in the shipment related to Dilibe.

59. I am also satisfied on the evidence that the plaintiff failed to disclose on discovery other documents that he must have known were material to the trial. I strongly suspect that had they been disclosed they would have proved either detrimental or potentially detrimental to the plaintiff's case.

60. I regret that I am compelled to find that this is one of the rare cases where the evidence irresistibly leads a court to conclude that one of the parties has been guilty of attempting to perpetrate the gravest of deceptions in order to secure a judgment in its favour.

61. It seems to me that what had actually happened is that after the plaintiff had accompanied Dilibe to Nigeria to collect the outstanding balance due to him, Dilibe failed to pay, but that some arrangement was made which led the plaintiff to believe that Dilibe would be able to settle with him at some later date. This accounts for the plaintiff's failure to make a formal complaint to JAS(HK) on his return to Hong Kong about the events that he now falsely alleges had occurred in Lome. Later, at the end of April, he returned to Nigeria in the hope that Dilibe would finally pay him the balance due. It was only after he had eventually realised that Dilibe either could not or would not pay him that he decided to recoup his losses by resorting to a completely unfounded claim against the defendant.

62. I simply do not believe the plaintiff's version of the relevant events. His testimony stands in stark contrast with that of the wholly credible and reliable witnesses for the defendant.

63. Accordingly the plaintiff's claim fails. I give judgment for the defendant.

Representation:

Mr. Nicholas Pirie istucted by M/S Barry R. Driver & Co. for the plaintiff.

Mr. K.M. Chong instructed by M/S Liang, Ng, Lie & Lai for the defendant.