Miss Bunmi Omotoye V. Abc (Transport Co.) Ltd (2009)

LawGlobal-Hub Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

By writ of summons and statement of claim filed on 23/1/01 before the High Court of Rivers State, in the Port Harcourt Judicial Division, the appellant (as plaintiff) sought the following reliefs against the respondent:

a. A declaration that the defendant was negligent in handling the goods belonging to the plaintiff which the defendant was to deliver from Lagos to Port Harcourt to the plaintiff cover (sic) by receipt on 28/7/2000.

b. An order of the court compelling the defendant to way to the plaintiff the following:

1. The sum of N 117, 000.00 (One hundred and seventeen thousand naira) being the value of the goods damaged.

ii. The sum of N4, 700.00 (Four thousand seven hundred naira only) being the cost of transport to and fro Port Harcourt to Lagos.

iii. The sum of N1, 000, 000.00 (One Million Naira Only) being damages for loss of goodwill, loss of turnover on the goods and loss of profit.

The respondent filed a statement of defence in reaction thereto. The matter proceeded to trial. The appellant testified on her own behalf and did not call any other witness. She tendered various exhibits in support of her claims. The respondent called one witness but did not tender any exhibit. At the conclusion of the trial, learned counsel submitted written addresses. In a considered judgment delivered on 10th June 2004, the learned trial Judge dismissed the appellant’s case in its entirely with costs awarded against her. The appellant was dissatisfied with the decision and filed a notice of appeal containing five grounds of appeal on 20/10/04.

In compliance with the rules of this Court, the parties duly filed and exchanged their respective briefs of argument. In her brief of, argument dated 5/10/06 and filed on 6/10/06 the appellant formulated five issues for determination as follows:

1. Whether facts admitted by the Respondent need further proof from the appellant. (Ground 1)
2. Whether an unchallenged and uncontradicted direct oral evidence (sic) of the appellant needs further corroboration before the court can accept and act on it. (Ground 2)
3. Did the appellant not discharge the burden expected of her on the issue of delivery of the goods to the Respondent who still has custody of the goods. (Ground 3)
4. Whether the issue of exemption clause raised by the court suo motu and relying on same without allowing the parties address on it does not infringe on the right of the appellant’s fair hearing (sic) (Ground 4)
5. Whether the reliance the trial court placed on Exhibit A which is the ticket showing the transportation cost or contract to carry the appellant to her destination instead of Exhibit C which is the receipt evidencing the contract to carry the goods from Lagos to Port Harcourt and without considering the issue of negligence that causes damages to the goods which the respondent admitted has not occasioned miscarriage of justice to the appellant. (Ground 5)

The respondent, in its brief dated 19/3/07 but deemed filed on 3/5/07, distilled three issues for determination thus:

1. Whether the learned trial Judge was right in holding that the Plaintiff/applicant did not prove that the goods in question, the subject matter of the suit in the court below were damaged and by the defendant/respondent. (Grounds 1, 2 and 3)
2. Whether the learned trial Judge actually raised the issue of exemption clause as contained in the contract between the Plaintiff/appellant and defendant/respondent suo motu and decided on same without hearing from the parties. (Ground 4)
3. Whether the learned trial Judge was wrong in the appraisal of the evidence before the lower court.

At the hearing of the appeal on 4/5/09, Benjamin Obiora, Esq., of counsel, adopted the appellant’s brief and urged us to allow the appeal.

A.1.Nwachukwu Esq., of counsel, holding the brief of Emeka O. Nwagwu Esq., adopted the respondent’s brief and urged us to dismiss the appeal.

Having carefully considered the issues formulated by both parties, I am of the view that the issues formulated by the appellant are rather prolix, while the issues formulated by the respondent are not succinct enough. In my humble view the two issues that arise for determination in this appeal are:

1. Whether the appellant proved her claim upon a preponderance of evidence or on a balance of probabilities; (Grounds 1, 2, 3 and 5) and
2. Whether the learned trial Judge raised the issues of exemption clause suo motu without affording the parties an opportunity to address him on it and thereby occasioned a miscarriage of justice. (Ground 4)

The appeal shall be determined on the above issues. The submissions of the parties in their respective briefs can conveniently be considered under these two issues.

The facts that gave rise to this appeal are as follows: The appellant, a businesswoman, had a requisition from a, client in Port Harcourt for some specific items, which she had to source from Lagos. She travelled to Lagos on 25/7/2000 by the respondent’s night bus, purchased the items and returned to Port Harcourt also by the respondent’s night bus on 28/7/2000. It is the appellant’s case that the purchased goods were placed in one of the luggage compartments of the bus and were in good condition up to Owerri where some passengers disembarked. She contends that her items were removed from the luggage compartment at Owerri to enable the luggage of passengers disembarking to be removed. She also alleged that at Owerri one of the disembarking passengers complained that her goods got burnt in one of the luggage compartments. She stated that before the bus continued on its journey to Port Harcourt, her goods were returned to the luggage compartment and the bus attendant assured her that they were safe. Upon arrival at Port Harcourt, one of the luggage compartments, which incidentally contained her goods, could not open. When it was eventually forced open, it was filled with smoke and the appellant’s goods were damaged. It is the appellant’s contention that her goods were not kept in the faulty compartment from Lagos but transferred there after passengers disembarked at Owerri. In order to satisfy her customer that

she actually bought the goods she took the damaged goods to her but she rejected them. She (appellant) then returned the goods to the respondent with a claim for compensation. It is the appellant’s contention that the respondent was negligent in the handling of her goods. Efforts at an amicable settlement failed, thus the suit was filed at the court below.

Issue 1

With regard to the first issue, it is contended on behalf of the appellant that the respondent’s witness, having admitted during his evidence in chief and under cross examination that the appellant drew his attention to her damaged goods, the learned trial Judge erred when he held that the non-production of the damaged goods was fatal to her claim. He relied on Section 75 of the Evidence Act; also Alhaji Abubakar Suleiman Vs UAC of Nig. Plc. 1766 – 1767 G – A” Ojukwu Vs Obasanjo & Ors. (2003) FWLR (182, 182 @ 801 F – G. He submitted that there was no further burden on the appellant to establish that her goods were damaged, He submitted further that the evidence of DW1 to the effect that he saw at least one of the appellant’s goods, which was damaged and bent was sufficient evidence of the extent of damage. Learned counsel submitted that the appellant testified in line with her pleadings that the abnormal heat generated into the luggage compartment where her goods I were negligently kept between Owerri and Port Harcourt damaged them. He argued that as the respondent had admitted that the goods were damaged, the learned trial Judge ought to have inquired into the cause of the damage.

He submitted further that the learned trial Judge, in the course of evaluating the evidence of DW1 at pages 64 – 65 of the record, noted that while the respondent denied liability for the damage in its Pleading, DW1 admitted under cross-examination that one of the appellant’s goods (a baby seat) was damaged. He argued that the evidence of DW1 is at variance with the pleading in the statement of defence and therefore goes to no issue.

Learned counsel referred to the finding of the learned trial Judge that the appellant failed to discharge the onus on her of proving that the damaged goods were delivered back to the respondent after taking them to the customer who rejected them. He submitted that the learned trial Judge, in the course of the judgment, noted that DW1 testified that he was not in a position to say whether the goods were with the respondent or not because he was not stationed in Port Harcourt and because such matters are normally referred to the cargo manager. That His Lordship also noted that DW1 stated that the person who was the cargo manager at the material time was no longer in the employment of the respondents. He submitted that in the circumstances the appellant’s evidence that the damaged goods were in the respondent’s custody was unchallenged and uncontroverted and ought to have been acted upon by the learned trial Judge. He submitted that the appellant’s evidence that she delivered the goods to the respondent herself constitutes direct oral evidence of the fact. Relying on the authority of Ezemba Vs Ibeneme & Anor (2004) ALL FWLR (223) 1786 @ 1814 0 – F, he submitted that delivery of a consignment of goods is a fact provable by the direct evidence of the person who delivered them or a person who witnessed the delivery. He relied on Sections 76 and 77 of the Evidence Act and submitted that there can ‘be no better evidence as to the delivery of the goods than the evidence of the person who delivered them. He contended that the appellant testified to this fact on oath and that the onus was on the respondent to rebut the evidence by calling the station manager to deny receipt of the goods, He argued that it was only where the appellant’s oral evidence was effectively challenged that the onus would shift back to her to produce evidence of delivery by way of dispatch book or receipt. On the treatment of unchallenged evidence he cited the case of Health care products Nig. Ltd. V Alhaji Musa Bazza (2003) FWLR (162) 1937 957 H; Petroleum Special Trust Fund Vs integrated Facility Management Services Ltd. (2003) FWLR (155) 738 @ 745 G – H; Kali Bukar Tatama Vs Modu Jalomi & Anr. (2003) FWLR (181) 1682 @ 1701 B – C.

It is the further contention of the appellant that the learned trial Judge relied on an exhibit that was not relevant to the complaint in reaching his decision. It is contended that the learned trial Judge relied on an exemption clause contained in Exhibit A to hold that the respondent was exempt from liability; He argued that Exhibit A was the ticket for the appellant’s outward journey from Port Harcourt to Lagos and that she had no complaint arising from that leg of her journey. He submitted that the relevant exhibit IS Exhibit C, which represents the contract between the parties for the carriage of the appellant’s goods from Lagos to Port Harcourt. He submitted that Exhibit C does not contain an exemption clause. He contended that there is an implied condition in Exhibit C that the respondent would deliver the appellant’s goods to her destination in as good a condition as they were when they were received at the point of departure. He argued that the implied condition creates a duty of care. Relying on the case of: Oluigbo 1 & Ors. Vs Umeh (2004) ALL FWLR (196) 823 @ 840 G – H, he submitted that where goods belonging to one person are unconditionally entrusted to the care of another for whatever purpose, and whether gratuitously or for reward, there is a clear understanding that the goods would ultimately be returned to the owner and that failure to do so raises a presumption of negligence against the defaulting party.

He submitted that the appellant gave direct oral evidence in proof of the allegation of negligence. He submitted that not only did the appellant tender Exhibits C and E to show that there was a contract between the parties, she also testified that her goods were in good condition up till the time they reached Owerri. He stated further that having observed that a passenger disembarking at owerri had complained about her goods being burnt in a particular luggage compartment, the fact ought to have increased the degree of caution and care employed by the respondent to avoid a reoccurrence. He submitted that their failure in this regard resulted in the damage to the appellant’s goods.

He argued that the appellant had shown that the goods were under the management and care of the respondent. She had tendered Exhibits C and E as evidence of the contract between the parties and Exhibits D, D1 – D3 (photographs) to show that the damage to the goods occurred while they were under the care and management of the respondent. He submitted that damage by fire does not occur in the ordinary course of the respondent’s business. Learned counsel submitted that the appellant had established all the ingredients of a claim for negligence viz (a) that the respondent owed her a duty of care; (b) that the respondent breached the duty; and (c) that there was damage resulting from the breach of duty. He relied on the case of Diamond Bank Ltd. Vs Partnership Investment Co. Ltd. & Anor. (2003) FWLR (152) 1@ 12 E – G. He submitted that the onus shifted to the respondent to explain what happened to the goods under its care and it failed to do so. He contended that the principle of res ipsa loquitur applies in the circumstances’ of this case and urged us to resolve this issue in the appellant’s favour

In reply to the submissions of learned counsel for the appellant, learned counsel for the respondent submitted that the appellant failed to prove on a preponderance of evidence that the respondent damaged her goods a alleged or that her goods were damaged at all. He referred to the respective pleadings of the parties’ on the issue. He submitted that the respondent denied the allegation of negligence and denied that its buses generate heat in the boot compartment. He submitted that the appellant failed to prove that she sent her goods back to the respondent as alleged. He agreed with the learned trial Judge that the fact could only be established by the tendering of written acknowledgment of receipt by the respondent or by evidence of registered postage or by the evidence witnesses who saw the delivery. He relied on: Nlewedim Vs Uduma (1995) 6 NWLR (402) 383 @ 388. He submitted that the appellant failed establish negligence, which is an issue of fact not law. He relied on: Kalla v Jarmakani Trans Ltd (1961) ALL NLR 747: Nailari Vs Ngilari v Mothercat Ltd (1999) NWLR (636) 628.

On the issue of the delivery of the goods to the respondent after the damage occurred, learned counsel submitted that based on the appellant’s evidence under cross examination, her customer who allegedly rejected the damaged goods was a witness who ought to have’ been called to testify at the trial. He submitted that the appellant also failed to produce any evidence to substantiate her oral testimony that she wrote letters to the respondent, which letters were said to have been delivered through DHL He distinguished the case of Ezemba Vs Ibeneme (supra) cited by learned counsel for the appellant from the facts of the present case on the ground that in that case there was corroborative evidence of an independent witness on the issue of delivery, He submitted that the doctrine of res ipsa loquitur does not apply to this case as tile appellant was in a position to explain the incident by credible evidence, He cited the case of: Onwuka Vs Omogui (1992) 3 NWLR (230) 393 @ 398, He urged us to resolve this issue against the appellant.

The law is settled that negligence is a question of fact, not law. Each case must be determined on its own facts, See: Kalla Vs Jarmakani Transport Ltd. (1961) All NLR 747 @ 785; Ngilari Vs Mothercat Ltd. 1999 13 NWLR 636 628′ Osigwe Vs Unipetrol (2005) 5 NWLR {918} 261 @ 283 F.

In order to establish a claim for damages for negligence, the claimant must plead and prove the following:

a That the defendant owed him a duty of care;

b. That the defendant failed to exercise due care; and

c. That the damage was as a result of the negligence of the defendant.

See: Ngilari Vs Mothercat (supra); Osigwe Vs Unipetrol (supra); Umudje Vs Shell Petroleum Co. (Nig.) Ltd. (1975) 11 SC 155.

The particulars of the breach of duty must be set out in the pleadings and the decision would turn not only on causation but also on responsibility. See: Unipetrol (Nig.) Plc, Vs Adireje (W.A.) Ltd. (2005) 14 NWLR (946) 563 @ 610- 611 H – B; Mandilas Ltd. Vs Ale (1985) 3 NWLR (11) 43; Umudje Vs Awaijene (1973) 9 -11 SC 155 @ 166.

Bearing: the above stated principles in mind, the first issue to consider is whether the appellant proved damage to her goods. The relevant paragraphs of the amended statement of claim are paragraphs 4, 5, 6, 7, 8, 9, 10 and 11 wherein the appellant averred thus:

4. “The plaintiff avers that on the 25th July 2000 she had a requisition from her customer for an urgent Supply of the following items at the following rates:

(a) One No. Landslide N35, 000.00

(b) One No. Stage 3 car seat N45, 000.00

(c) One No. Foreign pool ball N 7, 000.00

(d) Two Nos. Educational Truck at

N15, 00000 x 2 N30, 000.00

To this extent she travelled on board the defendant’s business class sleeper (night) bus from Port Harcourt to Lagos with ticket no. 013114 to buy the goods at Lagos for prompt delivery. The plaintiff shall at the trial rely on the ticket to prove her case.

5. The plaintiff avers that she also returned with the defendant’s business class sleeper bus on the 28th July 2000 from Lagos to Port Harcourt with the ticket No 0188106. The plaintiff shall rely on the said ticket to prove her case.
6. The plaintiff avers that she returned form Lagos to Port Harcourt with the goods she purchased for delivery to her customer and the defendant issued receipt to cover the goods accompanying her. The plaintiff shall at the trial rely on the receipt to prove her case.
7. The Plaintiff avers that she returned from Lagos to Port Harcourt at the defendant’s station at Owerri, as they were off-loading some luggage from the defendant’s vehicle, it was observed that some of the goods packed at the cabin were affected by the heat from the engine compartment.
8. The plaintiff avers that the defendant (sic) staff were speaking in Igbo language of what happened, but seeing what had happened to the other luggage’ she inquired about her luggage and they confirmed that they were alright, same having been brought down to enable them discharge the other luggage.
9. The plaintiff avers that it was when the staff of the, defendant were re-packing her luggage they negligently packed them at the place where the heat from the engine affected them.
10. The plaintiff avers that the defendant was negligent because:

(a) Its staff knew the system of the vehicle where it generates heat most

(b) The heat from the engine compartment impacted on some goods discharged at Owerri which suggests need for duty of care.

(c)The defendant’s staffs in loading back the plaintiff’s luggage at Owerri, with the knowledge of what had happened to the other luggage from that particular area of the luggage cabin did not observe duty of care to avoid a second effect.

d) The defendant’s staff assured the plaintiff that her goods were safe when she inquired how the goods were placed.

(e) The damages on the goods were caused by direct impact of the heat generated by the vehicle engine.

11. The plaintiff avers that as a result of the damages caused to the plaintiff’s goods by the negligent acts of the defendant, the person who requested for the goods rejected them, hence the plaintiff sent them back to the defendant who now has custody of them.”

It is pertinent to note that although the appellant amended her statement of claim pursuant to an order made by the trial court on 17/6/2003, the respondent did not make any consequential amendments to its statement of defence. The numbering of the paragraphs in the original statement of claim and the amended statement of claim are the same save that the amended paragraph 17 contains additional facts to those pleaded in the original paragraph 17. The respondent’s reaction to the above pleadings is contained in paragraphs 4, 5, 6 and 7 of the statement of defence thus:

4. “The defendant denies paragraphs 4 and 5 of the statement of claim and shall subject the plaintiff to strict proof of these facts at the trial.
5. The defendant admits (sic) paragraph 5 and 6 of the statement of claim only to the extent that the plaintiff travelled from Lagos to Port Harcourt via the Sleeper Service of the plaintiff:
6. In further answer to the said paragraphs, the defendant avers as follows:

(a) The plaintiff in addition to her ticket paid a charge on some load item which was not disclosed to the defendant.

(b) The defendant deny (sic) that it received the alleged goods for the purpose or on the term alleged in the statement of claim.

(c) The defendant deny (sic) that the alleged goods were damaged whilst being carried upon (sic) during the said journey as alleged or at all.

(d) The defendant shall contend at the trial that the goods were delivered to the defendant insufficiently and negligently packed and it had no notice of its actual contents. The damage complained of arose solely from the packing before the journey.

7. The defendant denies paragraphs 7, 8, 9, 10 and 11 of the plaintiff’s statement of claim. In answer to the said paragraphs the defendant avers as follows:

(a) The defendant denies that it is guilty of the alleged or any negligence or breach of duty of care as contained in the plaintiff’s statement of claim.

(b) The defendant denies any injury, loss or damages which the plaintiff sustained as alleged.

(c) The defendant asserts (sic) that the alleged loss or damage was caused without any negligence or default on the part of the defendant.

(d) The bus with which the defendant made the journey from Lagos to Port Harcourt did not have any exhaust pipe problems or leakage.

(e) The buses used by the defendant for its business do not generate heat at the boot compartment.”

It is noteworthy that while the respondent in paragraph 6 (c) of its statement of defence denied that the appellant’s goods got damaged during the journey or at all, it averred in paragraph 6 (d) that the damage complained of arose as a result of the manner in which the goods were before the journey. In paragraph 7 (c) it averred that the alleged loss or damage was not caused by its negligence. In other words, the respondent, by its pleading, admitted the fact of damage but denied liability therefore.

At the trial the appellant testified in line with her pleadings. In addition to her oral evidence she tendered the following exhibits:

a. Exhibit A – ticket no. 013114 from Port Harcourt to Lagos.

b. Exhibit B – ticket no. 0188106 from Lagos to Port Harcourt.

c. Exhibit C – receipt no. 09386 for N700 for carriage of goods.

d. Exhibit D – letter of claim addressed to the respondent;

e. Exhibits D1. D2. and D3 – photographs of damaged goods attached to Exhibit D.

f. Exhibit E – purchase receipt issued by Green Ville Ventures Ltd. Allen Avenue. Ikeja. Lagos for the items listed in paragraph 4 of the amended statement of claim (supra).

g. Exhibit F – letter of demand written by appellant’s solicitor to the respondent.

h. Exhibit G – hand written note of respondent’s Port Harcourt manager with complimentary card of respondent’s Senior Manager Cargo Operations attached inviting appellant for a meeting with the Senior Manager.

In reaction to the appellant’s testimony, DW1. Amadi Polycap Chinedu, a bus attendant with the respondent company testified in chief at page 40 of the record thus:

“I remember 28th July 2000. I was on duty on the defendant bus from Lagos to Port Harcourt through Owerri… I recall that the plaintiff travelled with us on 28th July 2000. I recall the only contact I had with the plaintiff was when she drew my attention that her goods were damaged. The plaintiff had several luggages (sic). The damaged luggage looked like a baby seat. The luggage was wrapped with nylon and cellophane bag. As I didn’t touch the damaged luggage, I don’t know the exact damage.”

Under cross-examination at page 41 record he stated:

“I did not see the plaintiff’s goods in Lagos so I don’t know the state of the goods …. I only know of one of the goods of the plaintiff that were damaged. The item damaged had a little bent (sic).”

In the course of evaluating the evidence regarding the alleged damage to the appellant’s goods, the learned trial Judge observed at pages 64 – 65 of the record:

“A pleaded in the statement of defence, the witness denied liability in every material respect. He in his evidence admitted that the Plaintiff drew his attention that her goods were damaged. He admitted that he did not touch the damaged goods and hence could not know the exact damage. … Under cross-examination he admitted that it was the baby sitter (sic) that was damaged.”

At pages 68 and 69 of the record His Lordship held:

”The goods allegedly damaged were not produced before this court for this court to appraise the damage if any and the extent of the damage. What is before the court are Exhibits D1, D2 and D3, which are colour photographs of the plaintiff’s alleged goods. From the photographs one cannot easily appreciate the fact of damage by heat. Furthermore the plaintiff is alleging the goods as being in the custody of the defendant which the defendant has denied. The onus is on the one who asserts to prove his/her assertion. The burden lay on the Plaintiff to establish that the goods were in fact delivered back to the defendant having taken them to fire Customer who rejected them. Plaintiff could have established this fact by either producing before this Court evidence of dispatch book, receipt, dispatch by registered post or evidence of another witness or a person that actually received the goods. This was not brought to the attention of this court and this lacuna is fatal to the plaintiff’s case.”

After a careful examination of the evidence of the appellant (PW1) and the respondent’s witness (DW1) I am of the view that the finding of the learned trial Judge on the issue of damage to the appellant’s goods is at variance with the evidence before him. The appellant clearly established through Exhibit E that the items listed therein were I purchased prior to boarding the respondent’s night bus on 28th July 2000. DW1 stated that he did not see the goods in Lagos and therefore could not testify as to the condition of the goods at the beginning of the journey. The presumption, based on Exhibit E therefore, is that all the items listed therein were new and in good condition when they were loaded into’ the luggage compartment of the respondent’s bus in Lagos on 28th July 2000. It was the appellant’s contention that the damage occurred between Owerri and Port Harcourt. DW1 admitted, as found by the learned trial Judge, that the appellant drew his attention to her damaged property when they arrived in Port Harcourt. He stated that he saw that the baby car seat was damaged. He stated that some of the appellant’s luggage was wrapped with nylon and cellophane and that he did not touch it. The learned trial Judge also observed that the appellant I tendered coloured photographs of the damaged goods, although he was unable to ascertain the extent of damage from the photographs.

The standard of proof in civil cases is on the preponderance of evidence or on the balance of probabilities. In the instant case the appellant had established by a preponderance of evidence that her goods got damaged in the respondent’s bus on the night journey from Lagos to Port Harcourt on 28th July 2000. It was for the respondent to rebut the prima facie evidence adduced by the appellant, which it failed to do. Although it denied liability for the damage, it admitted the fact of the damage through the testimony of DW1. The learned trial Judge was not called upon at that stage to determine the extent of damage. What Exhibits D1, D2 and D3 established was the fact that damage had occurred.

A lot of heavy weather has been made of the non-production of the damaged goods. Having regard to the facts of this case, I am of the humble view that the non-production of the goods was not fatal to the appellant’s claim. This is because she had established by evidence that the good were purchased pursuant to a requisition by a customer. Exhibit E established the fact that the goods were in fact purchased. Exhibit C showed that the goods were carried on the respondent’s night bus on 28th July 2000. The respondent’s witness admitted that the damaged goods were brought to his attention. I have held that upon a preponderance of evidence the appellant established the fact that her goods were damaged by the time they reached Port Harcourt. The learned trial Judge noted that photographs of the damaged goods were indeed tendered. Exhibit G is a hand written not signed by one Ben Eke on behalf of the appellant and addressed to the respondent. Attached to the note is the complimentary card of IFEANYI AZUKA, Senior Manager (Cargo Operations).

It reads:

“Dear Madam Bunmi,

I came to inform you that our Snr. Mgr. (Cargo Ops) visited our terminal, and directed that I should come and notify you his intention to have a brief discussion with you, in respect of your item, which was damaged while coming back from Jibowu to PHC. It is his intention that you please make chance and’ visit ABC Transport office (PHC) between 8-9 am tomorrow, 27th Sept. 2000.”

The respondent testified that efforts to reach an amicable settlement were unsuccessful. Her evidence in this regard was unchallenged. In light of all the above facts there was no further burden on the appellant to physically produce the goods to prove that they were damaged.

Furthermore, I am inclined to agree with learned counsel for the appellant that in the circumstances of this case, the ipse dixit of the appellant that she personally delivered the damaged goods to the respondent company, being the direct oral evidence of the ‘person who delivered the goods, is sufficient proof of that fact. Section 76 of the Evidence Act provides that all facts, except the contents of documents, may be proved by oral evidence. Section 77 (a) – (c) of the Act provides:

77. Oral evidence must, in all cases whatever, be direct-

(a) If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw that fact;

(b) If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard that fact;

(c) If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner.

I have taken cognizance of the proviso to Section 77, which provides that if oral evidence refers to the existence or condition of any material thing, other than a document, the court may if it thinks fit require the production of such material thing for its inspection. However, no such order was made in this case.

The appellant pleaded in paragraph 11 of her amended statement of defence and further testified on oath that she returned the damaged goods to the respondent and that they were still in the respondent’s custody. In reaction to this averment, the respondent in paragraph 7 of its statement of defence denied the averments in paragraphs 7, 8, 9, 10 and 11 of the amended statement of claim. While the averments in sub paragraph (a) to (e) specifically address paragraphs 7 – 10 of the appellant’ pleading, the denial of paragraph 11 remains a general denial. There is nowhere in the statement of defence that the respondent specifically denied that the appellant returned her damaged goods to its Port Harcourt office. DW1, the respondent’s only witness stated under cross-examination at page 42 of the record:

“I am not stationed in Port Harcourt – if they have cargo in Port Harcourt I would not know.

… Anything about luggage is directed to the Cargo Manager. Station Manager is the overall man in charge. The Cargo Manager in Port Harcourt at the time is Abraham Amadi and he is no longer with the defendant’s company.”

From the evidence of DW1 it is clear that the evidence of the appellant that she returned the damaged goods to the respondent was uncontroverted. As stated earlier, the standard of proof in a civil suit is on a balance of probabilities and not proof beyond reasonable doubt. There is nowhere in the judgment appealed against that the appellant’s credibility as a witness was challenged. Her oral evidence, which was unchallenged, ought to have been accepted and acted learned trial Judge. See; Onwuka Vs Omogui (1992) 3 NWLR (230) 393; American Cynamid Co. Vs Vitality Pharmaceuticals Ltd. (1991) 2 NWLR (171) 15.

Having established that her goods got damaged while in the luggage compartment of the respondent’s bus, the appellant had a further duty to prove that the respondent owed her a duty of care, that it breached that duty and that she suffered damage as a result of its negligence. It is the appellant’s contention that having regard to the facts of this case, the respondent owed her a duty of care to ensure that her goods reached their destination in Port Harcourt in the same condition as when she boarded the bus in Lagos. It is also her case that the respondent breached that duty of care in failing to take necessary precautions after the discovery at Owerri that a passenger’s goods got damaged in one of the luggage compartments, by ensuring that her goods, after being offloaded at Owerri for the removal of disembarking passengers’ luggage, were not placed in the same faulty compartment. The appellant tendered Exhibit C, a receipt for carriage of goods, to prove that there was a contract between her and the respondent for the transportation of the goods enumerated in Exhibit E. Having accepted to carry the goods, the respondent owed the appellant a duty of care to ensure that the goods arrived at their destination in good condition. See: Oluigbo Vs Umeh (2004) 6 NWLR (870) 621 @ 645 – 646 H – C; Panalpina World Transport (Nig.) Ltd. (1975) 24 @ 29; Ogugua Vs Armels Transport Ltd. (1974) NSCC (Vol. 9) 169 @ 172.

The Supreme Court in Panalpina World Transport (Nig.) Ltd. (supra) @ 29 held thus:

“We think that whenever goods belonging to one person are unconditionally entrusted to the care of another person for safe keeping or for other purposes, whether gratuitously or for reward, on the clear understanding that the goods in question shall ultimately be returned or delivered to the owner, that failure to return or deliver the said goods as agreed upon raises a presumption of negligence against the defaulting party.”

Their Lordships further held thus:

“We take the view that in order to rebut the presumption; the party concerned should show to the satisfaction of the court that the loss occurred not through their fault, carelessness or recklessness but in spite of all reasonable precaution taken by them in order to ensure the safety of the goods In question. To hold otherwise would in our view work hardship on the owner of such goods.”

The damage to the goods having been established by the evidence of the appellant and the admission of the respondent, the onus was on the respondent to show that the damage did not arise as a result of its own fault, carelessness or recklessness. In paragraph 7 (d) of its statement of defence, the respondent alleged that the damage was caused by the insufficient and negligent manner in which the goods were packed before being delivered to it. No evidence was led in support of this averment. DW1, the respondent’s only witness testified that he did not see the goods in Lagos before they were loaded onto the bus. The respondent’s station or cargo manager at the Lagos office did not testify. From the totality of the evidence before the court, the appellant led credible evidence in support of her claims, which was not discredited by the respondent. The respondent failed to explain how, in the absence of negligence on its part, goods entrusted to its care in good condition arrived at their destination damaged.

The other issue raised by the appellant is whether the reliance by the lower court on Exhibit A, particularly the exemption clause contained therein did not occasion a miscarriage of justice. As observed earlier in this judgment, Exhibit A, which the learned trial Judge referred to and relied on in his judgment at page 69.of the record was the receipt for the appellant’s outward journey from Port Harcourt to Lagos. It was not a return ticket. She had no complaint about that leg of the journey. Her complaint arose from her return journey from Lagos to Port Harcourt, evidenced by Exhibits Band C respectively. Exhibit B is the receipt covering the return journey, while Exhibit C is the charge for the extra luggage. I agree with learned counsel for the appellant that the learned trial Judge erred when he referred to and relied on Exhibit A and thereby came to a wrong conclusion. The only relevance of Exhibit A was to show that the appellant travelled to Lagos on the respondent’s bus.

It follows from all that I have said in the course of this judgment that this issue must be and is hereby resolved in favour of the appellant.

Issue 2

The second issue for determination is whether the learned trial Judge raised the issue of exemption clause suo motu without affording the parties an opportunity to address him on it and thereby occasioned a miscarriage of justice.

Having held in the course of resolving the first issue that the learned trial Judge erred in relying on Exhibit A (which contains the exemption clause) in determining the case before him, the issue as to whether he raised the issue of exemption clause suo motu or not has become otiose.

In conclusion, the appeal succeeds and is hereby allowed. The judgment the High Court of Rivers State, in the Port Harcourt judicial division in suit no PHC/133/2001 delivered on 10th June 2004 is hereby set aside. Claims (a) and (b) sub paragraphs (i) & (ii) of the further amended statement of claim are hereby granted. Claim (b) sub paragraph (iii) is hereby refused on the ground that no evidence was led to substantiate it.

The appellant is entitled to the costs of this appeal, which I assess at N50, 000.00 against the respondent.

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Other Citations: (2009)LCN/3310(CA)