International Messengers Nigeria Limited V. A.O. Tawose (2003)

LawGlobal-Hub Lead Judgment Report

CHRISTOPHER MITCHELL CHUKWUMA-ENEH, J .C.A.

This is an appeal against the decision of the High Court of Lagos State (Coram: Thomas, J.) in an action, in which the plaintiff claimed the sum of N115,000.00 as damages for the failure and/or neglect of the defendant company to deliver the plaintiff’s goods to wit:- examination scripts to a consignee in London. The defendant admitted the non-delivery of the package, but relied on the company’s standard trading conditions to limit its liability.

By an amended statement of claim dated 7/3/88 the plaintiff claimed special and general damages as follows:
N : K
(a) cost of the two flights to London                                              1,669.00
(b) cost of board and transport in England                                      15,000.00
(c) Cost of conducting another examination and returning some fees     8,125.00
(d) resulting damage to and collapse of trade and goodwill                 75,000.00
(e) general damages                                                                   15,206.00
Total:                                                                                    115,000.00

The trial court on 28/2/92, gave judgment in favour of the plaintiff as follows:
“(a) The sum of N1,669.00 being cost of two flights to London and back in search of answer scripts.
(b) N15,000.00 for cost of boarding and transport in England; and
(c) N7,500.00 being general damages.”

Dissatisfied with the decision the defendant/appellant by a notice of appeal filed on 12/3/92, appealed to this court upon 6(six) grounds of appeal and has sought to have the decision set aside.The parties filed and exchanged their briefs of argument. The appellant in its brief identified two issues for determination.

And they are reproduced as follows:
“(a) Whether there was credible evidence to justify the award of damages for cost of the trips to London; and
(b) Whether having awarded special damages, the lower court was justified in making an award for general damages for breach of contract.”

The plaintiff/respondent also identified two issues for determination and they are reproduced as follows:
“(a) Whether evidence adduced by the plaintiff is not sufficient to justify the award of damages for cost of the trips to London and back.
(b) Whether having awarded special damages, the lower court cannot in addition award general damages for negligence in a case of contract.”

The appellant also on 27/10/03, filed a reply brief. The facts of this matter are more or less agreed by the parties. The plaintiff/respondent was the representative of an educational institution overseas and conducted examination in Nigeria for the Institution. After such examination, the answer scripts were sent to the institution overseas for assessment of the candidates. The plaintiff/respondent after one of such examinations handed over the examination scripts to the defendant/appellant, a courier company, to deliver to the institution in England. The answer scripts were never delivered in breach of the contract and the plaintiff/respondent instituted this suit.

The appellant’s argument on issue one hinged on the special damages awarded for the cost of the two flights to London and the cost of board and transport in England. The appellant submitted that the court below erred in making the award as he did. As regards the first trip which took place in January, 1984, it submitted that the trip was unconnected with the lost package as the package was despatched on 7/3/83. The 2nd trip which was made between 13/10/84 and 20/10/84 it was contended, was made after the instant suit had been instituted on 24/5/84. The appellant argued that the respondent having made the trip after the suit had commenced the award was made in error. The tickets for the said trips were as per exhibits J and K.

On the question of board and transport, the appellant submitted that there was no evidence to sustain the award of N15,000.00 for board and transport. The claim was also challenged on the ground of want of strict proof as no receipts were tendered in their support. See: Imana v. Robinson (1979 – 81) 12 NSCC 1 at 11.On issue two, the appellant submitted that the court below erred in that having awarded special damages, the award of general damages was done in error. See: Omonuwa v. Wahabi (1976) 10 NSCC 233 at 238; Kusfa v. United Bawo Construction Co. Ltd. (1994) 4 NWLR (Pt. 336) 1 at 16. The appellant urged the court to allow the appeal.

The respondent contended on issue one of his brief that as no issue was joined between the parties as to whether the respondent made any trips that the point could not be taken excepting as a fresh issue on appeal for the first time with leave. See: Osakwe v. Governor of Imo State (1991) 5 NWLR (Pt. 191) 318 at 342 – 344 G-A; Elakhame v. Osemobor (1991) 6 NWLR (Pt. 196) 170 at 176 – 177 H-A. The respondent also submitted that he gave sufficient evidence to sustain the awards and referred to McGregor on Damages, 13th edition page 167 – 168 paragraph 237 and at page 570 paragraph 840. He also relied on the case of Adeoshun v. Adisa (1986) 5 NWLR (Pt. 40) 225 at 236 A-B, to submit that non-production of receipts for board and transport in England was not fatal to the claim.

On issue two, the respondent submitted that the action being on bailment encompassed aspects of contract and tort, hence, the court would make awards as to special and general damages. See: Omonuwa v. Wahabi (1976) NSCC 233 at 238 line 30 and lines 47 – 51. He argued that he was not adequately compensated under the first head of claim, under special damages hence, the award of general damages which did not amount to a double compensation.

The court was urged to dismiss the appeal. The appellant on its reply, argued on whether the cost of the trips was recoverable, particularly after the writ had issued. See: Original Hartlepool Collieries Co. v. Gibbs (1877) 5 Ch. D 713 at 718 and at 719 – 770; also see, Gowon v. Ike Okongwu (2003) 6 NWLR (Pt. 815) 38 at 49. It relied on Ogundipe v. Attorney General Kwara State (1993) 8 NWLR (Pt. 313) 558 at 568 B-C; Ngilari v. Mothercat Ltd. (1999) 3 NWLR (Pt. 636) page 626 at 647 to submit that, negligence must be pleaded with particulars and proved accordingly, which it submitted were not done here. See: Adeoshun v. Adisa (supra).

This matter has raised very interesting points, although one might find no point quibbling over a couple of naira at variance between the parties in this matter. However, the gist of this appeal, turns on whether the plaintiff/ respondent can recover for pecuniary loss incurred by him in reasonable attempts to avoid loss, even though the resulting damages may appear to be greater than it would have been had the mitigating steps not been taken.

The plaintiff/respondent embarked on the trips and because the defendant/appellant knew they were important, it gave the plaintiff/respondent exhibit D to its London agents to enable him sort out the matter. This was after the telex messages of 3/8/83 and 5/8/83 marked as exhibits B and C respectively. It is in this light that the claims under paragraph 7(1), 7(2) and 7(3), 7(4) have come to be considered in this matter. Authorities agree that a plaintiff in such circumstances, can recover such pecuniary losses incurred as here provided they are not otherwise too remote.

An authoritative statement of this principle is per Lord Wrenbury in Jamal v. Moolla Dawood (1916) 1 AC 175; 179 (P.C.) wherein he stated thus:
“It is undoubted law that a plaintiff who sues for damages owes the duty of taking all steps to mitigate the loss consequent upon the breach and cannot claim as damages any sum that is due to his own neglect. But the loss to be ascertained is the loss at the date of the breach. If at that date the plaintiff could do something or did something which mitigated the damage, the defendant is entitled to the benefit of it.”I think to be properly focused in this matter one has to start off this discussion by examining the legal relationship of the parties in this suit as created by exhibit ‘A’ i.e. the way bill with receipt dated 7/3/83, from there one can then move to the question of whether the defendant/appellant under the legal relationship is liable to the loss and finally to the damages payable if any. The court below approached the matter from these perspective and stated so in not so many words at page 118 LL. 20 – 24 of the record thus:”The issues in dispute are on the facts affecting the legal character of the transportation, the legal consequences of the loss by bailee of the bailor’s goods and damages, if any, resulting therefrom.”

In this regard, the court below has showed that it was properly focused.

There can, therefore, be no misgiving as to the propriety of the finding at page 130 LL. 18 – 20 of the record to the effect “that the defendant/co are liable to the plaintiff for breach of contract, as bailees and in negligence.” But to recover damages beyond the actual value of the goods lost, he has to know the special circumstances surrounding the goods he carries.

As a follow-up, with regard to the loss of the package, the subject matter of this suit, the facts on the ground have established negligence against the defendant/appellant. And so relying on the case of Chief D.O. Ogugua v.Armels Transport Ltd. (1974) 3 SC 139; (1974) 1 A.N.L.R 130; (1974) NSCC 169 at 172, there should be, “no need, on the part of the plaintiff… to plead negligence specifically”; particularly, as it is not being denied that the package handed over to the defendant/appellant was not after all delivered to the consignee in London. See: Panalpina World Transport (Nig.) Ltd. v. M. T. Wariboko (1975) 1 ANLR 24 at 28 per Coker, JSC also, see, Broadline Ltd. v. Monterey Maritime Corporation (1995) 9 NWLR (Pt. 417) 1 per Iguh, JSC.

In Ike v. Mangrove (1986) 5 NWLR (Pt. 41) 350, it was held that, “failure on the part of the bailee to deliver the goods in correct quantity is prima facie evidence of negligence. In order to rebut the presumption, the bailee must show to the satisfaction of the court that the loss occurred not through his fault, carelessness or recklessness”. The onus of rebutting negligence is placed squarely on the bailee. Again, I agree with the trial court’s finding on the point.

Having so found and as this is a case of bailment and before scrutinising the heads of damages the respondent pleaded as naturally resulting from the loss occasioned him as per paragraphs 7(1), 7(2), 7(3) and 7(4) of the amended statement of claim, and the awards made thereupon, I should advert to the principles underpinning the question of damages bailee may be adjudged liable in contract. In this respect, I have to refer to the case of W.A.E.C. v. Koroye (1977) 2 SC 45 at 50 – 51, also relied on by the court below wherein Bello, JSC (as he then was) set out the principles thus:
“The law relating to the liability of a bailee for breach of a bailment is founded on the principle of restitutio in integrum, which means that the party damnified is entitled to such sum of money as would put him in as good a position as if the goods have not been lost or damaged. In other words, the law will compensate him for the actual loss he has suffered but will not enable him to make a gain as a result of the breach…”

In the practical application of the above principle to cases when the bailees were incapable of returning the goods bailed, Judges have evolved rules for compensating the party damnified. The general rule is that a bailee is liable for the value of the goods as assessed at the date of the judgment in the case… If the goods are of the types that are readily available in the market, then he is liable for their market price.

If the goods are not so available, but can be replaced he is liable for the cost of replacement… In appropriate cases where the person damnified suffered damage or loss of such a nature that it flowed directly from the breach, he may also recover such damages as may compensate his loss.”

To enable me discuss the question of pecuniary loss incurred by the respondent, I should at this stage, for ease of reference, recap the plaintiff/respondent’s claim as per special and general damages and as entered as per the judgment of the court below in this matter as follows:
“(a) The sum of N1,669.00 being cost of two flights to London and back, in search of answer scripts.
(b) N15,000.00 for cost of boarding and transport in England; and
(c) N7,500.00 being general damages.”

The award made in respect of items (a) and (b) above are as an aspect of special damages while item (c) represents general damages. The appellant has strongly opposed the awards allowed under item (a) and (b) above for lack of strict proofs and as to the amount allowed under item (c) above, that the same amounts to double compensation.

Reliance has been placed on Kusfa v. U.B.C. Ltd. (1994) 4 NWLR (Pt. 336) 1 and Ijebu-Ode Local Government v. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (Pt. 166) 136. From the above cited cases, it is settled that the assessment of damages in breach of contract is calculated on the loss incurred by the injured party, which loss is either in the contemplation of the parties to the contract or is an unavoidable consequence of the breach. See: Hadley v. Baxendale (1854) 9 EX 341; Bolag v. Hutchison (1905) AC 515 at 525; The Tojo v. Maru (1969) 3 AER 1179 at 1182 per Lord Denning and Victoria Laundary v. Newman (1848) 2 K.B. 528 (CA). It should not be overlooked that damages in breach of contract as in bailment may not readily submit to be classified into special and general damages.

Hence, a significant dictum in the case of Attorney General of Oyo State v. Fairlakes Hotels Ltd. (No.2) (1989) 5 NWLR (Pt.121) 255 as well as in Kusfa v. U.B.C. Ltd. (supra) has recognized that the court may award general damages, where there is evidence that a party so claiming has suffered damages and also per Ogundare, JSC in Kusfa v. U.B.C. Ltd. (supra), to the effect that it is not the law that general damages could not be claimed in an action for breach of contract.

I now come to the stage to consider the nitty gritty of the aforesaid awards specifically, albeit on the backdrop of the foregoing principles of law. On the award of N1,669.00, even though the appellant duly recognised the purport of its letter given to the respondent i.e. exhibit D of 10/8/83 to its London agents to enable it sort out the matter, the appellant, nonetheless, has challenged the said award as not having been based on credible evidence to justify the said award. As required by law, these being items of special damages, have to be strictly proved. See: Kusfa v. U.B.C. Ltd. (supra).

The appellant has particularly deprecated the delay in embarking on the first trip as per the ticket exhibit J. of January, 1984, made about 10 months after the loss of the package. I do not see any justification for the attack on the award as the pecuniary loss so incurred inspite of the time lag has come within reasonable steps taken by the respondent to mitigate the loss consequent upon the said breach. Exhibit D, an open – ended letter has enabled the respondent to undertake the trips. Again, the pecuniary loss so incurred for the trip has otherwise arisen as an unavoidable consequence of the breach and is within the contemplation of the parties and therefore recoverable.

The second trip is covered by exhibit K and was embarked upon between 13/10/84 and 20/10/84; no doubt it has taken place about 17 months after the loss of the package and five months after the institution of this suit.

It is settled that a plaintiff should sue only in respect of cause of action which has already accrued. This is firmly settled and as the instant suit has taken effect as from the date of issue of the writ, a claim for pecuniary loss incurred as here as per exhibit K cannot stand as the cause of action has accrued after the writ was issued. It is certainly wrong for the respondent to have included in the amended statement of claim the instant cause of action. In other words, the plaintiff/respondent has commenced the instant suit prematurely. See: Eshelby v. Federated European Bank Ltd. (1932) 1 KB 254 and Halliard v. Jack Segal Ltd. (1978) 1 WLR 377.The amount claimed under exhibit K is N826.00 and subtracting that amount from N1,669.00 leaves the cost for the 1st trip undertaken under exhibit J i.e. N843.00, see: plaintiffs testimony at page 51 LL 25 – 28 of the record refers. As regards the award of N15,000.00 representing the respondent’s pecuniary loss incurred under board and transport in England covering the two trips undertaken as per exhibits J and K, following my reasoning above I agree with the appellant that the sum of N15,000.00 is meant to cover the two trips and that without itemising what has been spent on each trip it is bound to fail.

This accords with my decision to disallow the award made in respect of the 2nd trip, that is, under exhibit K. It is therefore, not justifiable for the court to get involved in apportioning amounts to each of the two trips by speculating on the loss incurred under each head of the claim, the respondent having failed to itemize by credible evidence showing the amount of pecuniary loss incurred for each of the two trips. See: Jaber v. Basma (1952) 14 WACA 140. The entire award made under this head of claim is bound to fail for want of itemisation. And I so hold.

Lastly, on item (c) above i.e. on the award of N7,500.00 as general damages; the appellant’s grouse in this regard is that having awarded special damages whether the court below is right to also award general damages. It has submitted that in breach of contract cases only damages naturally resulting from the breach and no other form or general damages is contemplated and that the respondent having been compensated under one head of damages is not otherwise entitled to recover for the same head under the guise of general damages.

The respondent has denounced the reasoning as having failed to take cognisance of the import of cases like Omonu v. Wahabi (supra). I think that appellant has got the import of the decision in Kusfa v. U.B.C. Ltd. (supra) totally wrong as Ogundare, JSC, in the lead judgment in that case, clearly has subscribed to the view that it is not the law that general damages could not be claimed in an action for breach of contract and deprecated the categorisation of damages into special and general damages in contract cases and furthermore, that, where the plaintiff has no difficulty in quantifying his actual pecuniary loss for the breach of contract – he may claim special damages, but where he has difficulty in quantifying the actual loss, he may claim in general damages. I agree with the court below awarding N7,500.00 as general damages having appreciated that the respondent has suffered damages not otherwise quantifiable as special damages.

Specifically, the respondent having failed to prove strictly his claim for the cost of conducting another examination and the damages to the collapse of trade and goodwill is otherwise entitled to be compensated in general damages and  rightly in my view based on the evidence tendered before that court on the point. I have to refer to the case of Attorney General of Oyo State v. Fairlakes Hotel Ltd. (No.2) (1989) 5 NWLR (pt. 121) 255, where the court awarded general damages where the claim for special damages on an item has not been strictly proved. For all I have said above, I uphold the award. In the final analysis, the respondent is entitled as follows:                                        N :K
(1) For the trip under exhibit J.         843 .00
(2) For general damages               7,500 .00
Total:                                       8,343.00
And I so order. Subject to the reduced special and general damages as computed above as compensation payable to the respondent in this matter, the judgment of the court below is hereby affirmed. I make no order as to costs.

Other Citations: (2003)LCN/1515(CA)