Ignatius Odinaka & Anor. V. Felix Nkanyichukwu Moghalu (1992)

LawGlobal-Hub Lead Judgment Report

OLATAWURA, J.S.C 

When this appeal came up for hearing on 10th February 1992. the Appellants were neither in court nor represented, but since an Appellants’ brief of argument has been filed, we exercised the powers conferred on the court under Order 6 rule 8 (6) of the Supreme Court Rules 1985 and heard the appeal. Mr Erondu who appeared for the respondent adopted his brief and offered no oral submissions in support.

The facts of this case as shown from the pleadings and the evidence led are straight forward. The Plaintiff is a businessman trading in motor cycle spare parts under the trade-name of FEN-KA-CHUMO Trading Company. The 1st defendant at the material time to this case was the owner of a Mercedes Benz Lorry registered as No. MA.5266. The 2nd defendant was at that material period the driver of the said vehicle and an employee of the 1st defendant.

On 30th April 1980, the plaintiff instructed is agents (P.W.1 and P.W.2) to clear his goods from the warehouse in Port Harcourt and to load the goods in a vehicle and convey them to 16 Iweka Road. Onitsha. These goods were in 29 cases or crates. They consisted of motor cycle spare parts of various descriptions. They were conveyed in the 1st defendant’s vehicle No.MA. 5266. The vehicle left Port Harcourt with the goods, but the goods never reached the agreed destination at Onitsha. The defendants did not deny carrying the goods from Port Harcourt. Their own version of the ill fated journey was that on the way after leaving Port Harcourt and because it was too late to travel to Onitsha the vehicle parked on the road at Ihiala. In the night they were attacked by armed bandits who drove the vehicle together with the goods to an unknown destination. A report was immediately lodged with the police; a search was made and the lorry without the plaintiffs 29 wooden cases of assorted spare parts was found at Adazi-Nnuku.

The plaintiff gave evidence and called two witnesses – P.W.1 one Alex Nwokedi a clearing agent who processed the customs documents in respect of the 29 cases or crates.

After the usual and necessary examination of the goods by the Customs Officials, the goods were loaded into the lorry driven by the 2nd defendant. Augustine Nwokedi (2 P.W.) travelled in the same vehicle. Where they parked at Ihiala and while the 2 .P.W. was sleeping inside the vehicle he heard gunshots, he i.e. 2 P.W. jumped out and the vehicle was driven away by the bandits. After a review of the evidence and consideration of the submissions made by the learned counsel, the learned trial Judge Awogu J (as he then was) dismissed the claim on the ground that the loss of the goods did not occur as a result of the negligence of the defendants. The plaintiff appealed to the Court of Appeal, Enugu Division. On 9th December 1987, the Court of Appeal allowed the appeal ; set aside the judgment of the lower court and in its place awarded the sum of N16,000.00 for loss of profit on the 29 cases and N16,246.07 being the total cost of the goods. It is against that decision that the appellants appealed to this Court.

The grounds of appeal without the particulars are as follows:-

“(1) ERROR IN LAW:- The Justices of the Court of Appeal erred in law when they overlooked the major issue of the appeal before them, namely, whether or not the loss of the 29 cases of the motorcycle spare parts was occasioned as a result of the negligence of the defendants/Appellants before finding them liable.

(2) The learned Justices of the Court of Appeal erred in law when they awarded judgment in favour of the Plaintiff/Respondent as Bailor of the 29 missing cases of motorcyc!e spare parts against the defendants/ Appellants as Bailee/Common carriers, in the sum of N32.246.07 made up as follows:-

(a) N16.247.07 being the total cost of the 29 cases of motorcycle spare parts.

(b) N16,000.00 being 100% PROFITS (Italics supplied) on the 29 cases of Motorcycle spare part, when in law they ought not to award N16.000.00 or any surn at all as loss of profits.

(3) The learned Justices of the Court of Appeal erred in law when they awarded judgment to the Plaintiff/Respondent in excess of the loss which was proved by him.

(4) The learned Justices of the Court of Appeal erred in law when they held that the Defendants/Appellants were liable to the Plaintiff as Bailes/Common Carriers or Custodians of the goods when there was no finding of fact made by the Court of first instance. Awogu J., as he then was. or by the Court of Appeal itself. Indeed the evidence was to the contrary.

(5) ERROR IN LAW:- The learned Justices of the Court of Appeal erred in law in awarding judgment to the Plaintiff when it was commonly accepted by the parties that the loss was occasioned by unknown armed robbers with violence.

(6) The judgment is against the weight of evidence.

Before referring to the briefs and the submissions therein I will like to set out some of the paragraphs of the pleadings more so when the appellant relied on the issue of bailment and the findings made by the trial Court.

The material paragraphs of the Claims on the Writ of Summons which was later adopted as the Statement of Claim read as follows:-

“1. The plaintiff is a trader carrying on business in Nigeria under the name and style of FEN-KA-CHUMO Trading Company.

3. The 1st defendant is, and was at all times material to this action,the owner of the Mercedes Benz lorry registered as No. MA 5266.
4. The 2nd defendant is, and was at all times material to this action the driver of the aforesaid Mercedes Benz lorry registered as No. MA 5266.
5. On the 30th day of April. 1980 the defendants agreed with the plaintiffs agent to convey for the plaintiff for reward a large quantity of motorcycle spare parts from Port Harcourt to Onitsha.
6. And on the said 30th day of April. 1980, the plaintiff through his agents at Port-Harcourt loaded in the 1st defendant’s Mercedes Benz lorry No. MA. 5266 the following Motorcycle spare parts:

(i) 5.000 pieces A 100 Exhaust Kit

(ii) 5.000 pieces K 125 Exhaust Kit

(iii) 500 Sets CD 175 Engine Kit

(iv) 1,000 Sets CD 185 Engine Kit

(v) 500 Sets S 110 Engine Kit

(vi) 664 Sets CC 125 Engine Kit

(vii) 336 Sets CC 125 Engine Kit

(viii) 160 Sets CD 175 Engine Kit

(ix) 160 Sets S 110 Engine Kit

(x) 340 Sets S 110 Engine kit

(xi) 138 Sets CD 175 Engine Kit

(xii) 202 Sets CD 175 Engine Kit

(xiii) 1,000 Pieces YB 100 Ring W/Expender ETD

(xiv) 1,000 Pieces A 100 Gear Pedal W/Rubber

(xv) 1,000 Pieces YB 100 Outer Kick W/Rubber

(xvi) 1,000 Pieces S 100 Outer Kick W/Rubber

(xvii) 500 Pieces YB 100 Piston

(xviii) 500 Pieces YB 100 Piston

The Motorcycle spare parts listed hereinabove were packed in 29 wooden cases and were to be transported by the defendants from Port Harcourt and delivered to the plaintiff at the plaintiff’s warehouse at 16, Iweka Road, Onitsha.

8. The 2nd defendant in the course of his duties as the servant and agent of the 1st defendant drove the Mercedes Benz lorry No. MA 5266 loaded with the 29 wooden cases of Motorcycle spare parts from Port-Harcourt at about 6.55 p.m on the 30th day of April, 1980, but up till now the defendants have not delivered to the plaintiff the said Motorcycle spare parts or any part thereof.
9. The plaintiff imported the said Motorcycle spare parts for sale at Onitsha. The total cost of the Motorcycle spare parts including Bank Charges, Insurance, Landing Charges and Customs duty amounted to N16,246.07 (Sixteen Thousand Two Hundred and Forty-six Naira and Seven Kobo)
10. Despite repeated demands the defendants have failed to deliver to the plaintiff the Motorcycle spare parts listed hereinabove which they were bound to have delivered to the plaintiff latest on the 1st day of May, 1980.

11 Following the defendants failure to deliver to the plaintiff the said Motorcycle spare parts or any part thereof, the plaintiff has lost the profits he would have made on the sale of the Motorcycle spare parts which had and have a very good and profitable market.

4. The plaintiff therefore claims against the defendants jointly and severally the total sum of N32,246.07 made up as follows:-

(a) N 16,246.07 being the total cost of the 29 cases of Motorcycle spare parts.

(b) N16,000.00 loss of profits on the 29 cases of motor cycle spare parts.”

The defendants while not denying that they carried the goods averred in paragraphs 3, 5-7; 10-13,16-17 which read as follows:-.

“3. The defendants deny paragraphs 5, 6, 7 and 8 of the plaintiff’s statement of claim and put the plaintiff to the strict proof of the allegations therein contained.

5. The defendants further add that on the 30th day of April, 1980, one Augustine Nwokedi contracted with the 2nd defendant to carry his loads from Port Harcourt to Nnewi on charter and on agreed transport fee. The said Augustine Nwokedi loaded one big case at Port- Harcourt wharf and other cases from the out-skirts of Port Harcourt. The contents of the said cases were unknown to the 2nd defendant, nor did the defendant see or sign for any documents relating to the loads.
6. The defendants say that at about 6.30 p.m in the evening of 30th April, 1980 the 2nd defendant, the said Augustine Nwokedi, the owner of the loads, the defendants conductors namely Charles Ulasi and Julius Anakwe, left Port-Harcourt with the loads for Nnewi at owners risk.
7. The defendants deny that up to 29 wooden cases were loaded in the said defendants vehicle and that the contents of the cases loaded were as contained in paragraph 7 of the plaintiff’s statement of claim, and puts the plaintiff to the strict proof thereof.
8. The defendants further add that at about 1.15 a.m on the 1st day of May, 1980 the 2nd defendant agreed with the owner of the loads Augusline Nwokedi to stop and sleep at Ihiala to avoid highway robbers and the bad road from Okija to Nnewi; consequently the 2nd defendant stopped and parked in front of a lorry loaded with cement near our Lady of Lourdes Hospital at Ihiala.
9. At Ihiala the owner of the loads, Augustine Nwokedi decided to sleep in front of the said vehicle, the 2nd defendant slept on top of the loads in the vehicle and the two conductors slept behind the defendant’s vehicle.
10. The defendants add that as they were sleeping, gun shots very close to the defendants vehicle woke them up, and both the owner of the loads Augustine Nwokedi and the 2nd defendant jumped down from the defendant’s vehicle and ran away, in the same direction. and immediately the defendants vehicle was driven off by the highway robbers carrying away the two conductors who slept behind the lorry.
11. The defendants further aver that the incident was immediately reported to Ihiala Police, who provided their Police Van with which the robbers were pursued, and before getting to Okija junction, the defendants’ conductors who were forced down from the defendants vehicle by the robbers and who were seen trekking to Ihiala were picked up into the Police Van, and the chase of the robbers was continued, up to Nnewi, but there was no trace of the vehicle or loads.
12. The defendants vehicle was later recovered at Adezi in a very bad condition, containing the large case loaded at Port Harcourt wharf, which the police later released to the respective owners.
13. The defendants at the trial will contend as follows;-

(a) The defendants did not know the plaintiff nor Augustine Nwokedi before this incident, and were not parties to the robbery.

(b) The said Augustine Nwokedi who contracted with the 2nd defendant and accompanied the loads in the defendants vehicle at owners risk presented himself as the owner of the loads.

(c) The defendants did not known the contents in the cases nor saw or signed any documents in respect of the loads.

(d) The defendants obligations to see that the vehicle was in good condition and to drive safely on the road were complied with and the defendants were not negligent.

(f) The plaintiff is not entitled to both special and general damages as claimed and will urge the Court to dismiss the claim with heavy Cost.”

In their brief of argument, the appellants raised the following issues:-

“3.1 Whether even if the learned trial judge erred in law by holding that there was no privity of contract between the Plaintiff/Respondent and the Defendants/Appellants and that negligence ought to be pleaded by the Plaintiff/ Respondent those errors affected the validity of his ultimate findings and judgment as held by the Court of Appeal.

3.2 Whether the Plaintiff/Respondent was entitled to a double compensation by the award to him of his claim for the loss of profit.

3.3. Whether if the answer to issue no 3.2 is in the affirmative the Plaintiff/Respondent did prove this head of his relief as held by the Court of Appeal.

3.4. Whether the Court of Appeal was justified in law to reverse the definite finding of the trial Court on the issue of negligence. Whether the Plaintiff/Respondent gave evidence and proved loss of 29 cases of the motorcycle spare parts.”

The respondent’s brief posed two questions for determination. They are:

“(a) Was the Court of Appeal right in setting aside the judgment of the learned trial judge

(b) (i) Did the plaintiff/respondent prove the loss of his 29 cases of motorcycle spare parts which he entrusted to the defendants/appellants for transportation from Port-Harcourt and delivery to him at Onisha

(ii) Did the plaintiff/respondent prove his claim for loss of profit and was the award of this head of claim an award of double compensation”

The Appellant’s brief though not strictly prepared in accordance with the rules, e.g. the arguments in respect of the issues raised and submissions made therein, the arguments and submissions should refer specifically to the issues in any manner the appellants preferred to set them out but must state whether it is issue 1,2 and 2 or 3 as the case may be. In this case one will have to read the submissions before deciding which issue is being discussed. The sub-headings are not very helpful.

I think the submission on privity of contract relates to issue No.1. Since the appellants have agreed there is a privity of contract between the plaintiff and the 1st defendant as a result of the amendments to paragraphs 6 and 7 of the Amended Statement of Claim, I agree with the Appellants in their submissions that the “Court of Appeal was therefore right in holding that the learned trial judge was in error by ignoring the legal effect of the amendments”. In my view it follows from that submission that the issue of bailment has been made out. The learned trial judge had no basis for dismissing the plaintiff’s claim on the ground that “no such contract existed between him (i.e. the plaintiff) and the defendants”. See page 51 lines 25-27 of the printed record. The learned trial judge dismissed the claim on the ground that negligence was neither pleaded nor proved. Here again the Appellants disagreed with the learned trial Judge as there is a presumption of negligence on the part of a bailee that failed to deliver the goods entrusted to his care for valuable consideration by the owner. This much was made clear in the case of OGUGUA V. ARMELS TRANSPORT LTD: (1974) 3 S.C. 139; (1974-75) NSCC 169/172 this Court per Ibekwe J.S.C. said:

“Dealing with the first point first, we think there was no need on the part of the plaintiff in this case to plead negligence specifically. Once it is admitted by the parties (as was the case here) that the car was delivered to the defendants and that they failed to return it to the owner, we think the onus was on them to deliver the car to the plaintiff or satisfy the court its loss was not due to their carelessness.It is settled law that, in bailment, the onus of proving that there is no negligence is on the bailee (See Phipson on Evidence (eleventh edition) p.93 paragraph 94). In other words, provided the claim is properly worded, the onus of proof is always on the bailee to show that the loss of or damage to the goods entrusted to him occurred without negligence or default on his part.”

It is submitted by the Appellants that the Judge, on a calm appraisal of the evidence offered on negligence, was right in his conclusion that negligence was not established. With due respect and on the facts before the learned trial Judge, this was a wrong conclusion. The second defendant who at the material time was the servant of the first defendant was quite aware of the nature of the road from Port Harcourt to Onitsha. He was aware that it was unsafe to travel on the road in the night because it was common knowledge that robbers were in the habit of attacking vehicles and their passengers. It was fool-hardy and al the same time reckless of him to set out at that time because he knew he could not reach Onitsha before dusk. It was negligent of him even after he had set out to leave a place of safety i.e. the Police Station to go and park on a lonely spot on a road prone to attack and freely used in the night by armed robbers.

It was diversionary on the part of the learned trial judge and a complete disregard of the effect of Exhibit A – the Way-bill duly signed by 2nd defendant to say that the 2nd defendant was not in possession simply because P.W.2 was in the vehicle. P.W.2 was to show the driver (2nd defendant) where the goods were to be delivered. I agree with Mr. Egonu the learned Senior Advocate of Nigeria in his respondent’s brief where he said:

“The learned trial Judge did not for one moment consider whether the defendants/appellants took all or any necessary steps to ensure that the plaintiff’s cases of motorcycle spare parts were not stolen or lost. The defendants/appellants did not even make any attempt to show what steps. if any, they took to safeguard or protect the goods bailed to them. As the defendants/appellants failed to discharge the onus on them by disproving negligence on their part ………………….”

Senator Annah has submitted that the Appellate Court should not interfere with findings of fact made by the trial Judge unless it can be shown to be perverse. This is true, but it is however subject to certain exceptions that the Court of Appeal, in the interest of justice, will set aside the lower Court’s findings where the evidence shows that the findings cannot be supported and/or not the proper conclusions and inferences to be drawn from the evidence. This exception is apparent in this case; KUFORIJI v. V.Y.B LTD. (1981) 6-7 S.C. 40.

ENANG v. ADU (1981) 11-12 S.C. 25.

OKUOJA v. ISHOLA (1982) 7 S.C. 314.

It is not being contested that the 29 crates of motorcycle spare parts entrusted to the appellants were not lost. The issue which the appellants are contesting now is the loss of profit. For the purpose of clarity and easy understanding of this issue, it is desirable even at the risk of repetition to set out paragraph 14 of the Statement of Claim. It reads thus;

“14. The plaintiff claims against the defendants jointly and severally the total sum of N32.246.07 made up as follows:-

(a) N16,246.07 being the total cost of the 29 cases of Motorcycle spare parts. –

(b) N16.000.00 loss profit on the 29 cases of Motorcycle spare parts.”

The plaintiff/respondent in his evidence after referring specifically to the contents of the 29 cases said:

“The goods were shipped from Taiwan. The total cost was NI6,246.07. I imported the goods for sale. If I had sold the goods, I would make a profit of N16,000.00.”

He was cross-examined in respect of the profit only. The plaintiff/respondent said:-

“I make 100% profit because I buy the parts at Taiwan where they are cheaper. Those from Japan are dearer.

I have been in the motorcycle business since 1974. The defendants are liable to me.”

The defendants/appellants did not call any evidence in rebuttal. What is required in a case of this nature is credible evidence.

Counsel are always carried away in respect of claims tagged special damages. A host of witnesses if not reliable cannot sustain a claim based on special damages. Once their credibility is in doubt, the claim will be rejected. The truth of any claim does not depend on the number of witnesses except where the law requires more than one witness, then the claim will fail without that specified number of witnesses. The probative value of the evidence is the guiding principle in the award under this head: OSHINJINRIN v. ELIAS (1970) 1 All N.L.R. 153. See the case of WEST AFRICAN SHIPPING AGENCY (NIG) LTD &ANOR. v. ALHAJI MUSA KALA (1978) 3 S.C. 21/31 where this court agreed with the Privy Council decision in ADEL BOSHALI v. ALLIED COMMERCIAL EXPORTERS LTD. (1961) 2 SCNLR 322 (1961) 4 All NLR. 917 where their Lordships of the Judicial Committee said:

“The Federal Supreme Court took the view that the figure of 6d per yard for loss of profit on the sale of the goods awarded by the Trial Judge res led on the ipse dixit of the appellant that he would have made a profit of 6d and that this was not sufficient proof of his actual loss of profit. The only evidence as to loss of profit came from the appellant who was an expert in the trade and whose evidence was accepted by the Trial Judge. He was not cross-examined on the basis that his claim was excessive. The Trial Judge was in their Lordships view fully entitled in the absence of any contrary evidence to take the figure of 6d per yard as the appellants’ loss of profit.”

It is wrong in law to regard this award as double compensation. The case of EZEANI v EJlIDIKE (1964) 1 All NLR.402 relied upon by the appellants does not apply. That was a case where a tenant who was allowed to put up a building on a piece of land granted to him by the community was given notice to leave the site and remove all his belongings from the site. He instructed a contractor to demolish the building and remove the materials. The Community prevented the tenants from removing the materials from the site. The members of the community on their own removed both the materials from the site and other materials the tenants stored within the premises. The tenant sued for conversion and also claimed general damages. The trial judge granted the amount claimed in full. On appeal the Federal Supreme Court said:

“The measure of damages in an action in tort is not the same as in an action in contract, but the rule against double compensation remains the same. In an action for conversion it is well settled that the normal measure of damages is the market value of the goods converted though in certain cases, of which this is not one, the plaintiff may be able to recover damages for consequential losses as long as the damage is not remote”.

In this appeal it is a case of bailment. The delivery of the goods, rightly expected by the plaintiff, was based on the contract. The respondent’s evidence of profit was not controverted, nor could it be said it was false. Definitely the profit in this case is completely outside the rule against double compensation.

I will therefore dismiss this appeal with costs assessed at N1.000.00 in favour of the respondent.

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SC.70/1988