International Messengers Nigeria Limited V. Engineer David Nwachukwu (2000)

LawGlobal-Hub Lead Judgment Report

ODUYEMI, J.C.A.

By a writ of summons issued at the High Court of the Federal Capital Territory Abuja on 2nd December, 1993, the plaintiff/respondent in this case claimed against the defendant/appellant the sum of one Million Naira for the damage caused to him as a result of the negligence of duty of the defendant.

By his judgment delivered on 24th September, 1997, the learned trial Judge found for the plaintiff but held that there was contributory negligence on the part of the plaintiff. He awarded the sum of N100,000 in favour of the plaintiff. It is against that judgment that the defendant in the lower court has now appealed.

Originally, the appellant filed two grounds of appeal, which included the omnibus ground that the judgment is against the weight of evidence. However, by leave of this court granted on 2nd November, 1998 amended grounds of appeal which contained five grounds of appeal including the omnibus ground were filed.

Distilled from the 5 grounds in the amended grounds of appeal by the appellant are three issues thus:-

Whether the lower court was right when it found the appellant liable in negligence?. Subsumed in this issue is:-

Whether the lower court was right when it held that the appellant owed the respondent a duty of care to advice its Post Office Box before the 1st of November, 1998?.

(ii) Whether there was any evidence to sustain the award of damages made by the lower Court. Subsumed in this issue are two sub issues as follows:-

(a) Whether the lower court was right to have made an award for damages for lost opportunity when the evidence of injury led, is for mental and psychological shock?

(b) Whether the award for lost opportunity was based on mere speculation or a mere probability?.

(iii) Whether the lower court was right when it held that there was casual connection between the act of the appellant and the plaintiff missing the interview?”.

The appellant also filed an appellant’s reply brief.

The respondent in his brief has adopted the three issues for determination in this appeal as formulated by the appellant.

The parties at the hearing before this court adopted their respective briefs.

For the purposes of this judgment I too, shall adopt the three issues formulated by the appellant.

However, in this judgment it is necessary for reasons which shall soon become obvious to quote the summary of the facts in this case as highlighted in the appellant’s brief and such summary as highlighted in the respondent’s brief.

Appellants brief- Paragraphs 3.1 and 3.2 at pages 4 and 5 read thus:-

“3.1 on the 26th of October, 1993, at 6.15pm. IMNL accepted a package from Shell in Port Harcourt for onward transmission to the plaintiff in Abuja. There was no physical address for delivery. On the contrary, the handling instruction was to advice a Post Office Box on arrival of the package in Abuja. There was no instruction that the package was urgent and should be delivered as soon as possible.

3.2 The letter arrived Abuja on Friday, the 29th of October, 1993, at about noon. The letter to advice the Box was posted on Tuesday, the 2nd of November, 1993, and was received by the consignee on the 15th November, 1993, that same day he collected the letter from Shell from the Office of IMNL.”

Respondent’s brief – this is stated in paragraph 2 – introduction – of the respondent’s brief thus:-

“The plaintiff commenced a claim of N1,000,000.00 against the defendant/appellant due to the way and manner his mail was handled and delivered to him. The position was that a letter of interview was sent to the plaintiff by Shell Petroleum Development Company Nigeria that arrived at Abuja on 26.10.93 at 6.15 p.m. for an interview fixed for 1.11.93, wherein the appellant accepted to deliver the letter within the usual delivery time of 24 hours at page 46 line 30 of the record. But due to the fact that the mail was not marked deliver as soon as possible, which was the responsibility of the appellant to mark at no extra cost on their client Shell Petroleum Development Company Nigeria at page 46 lines 10-15 of the record. However, the appellant did not advice the respondent’s Postal Box until 2.11.93 as the letter did not suggest any urgency.

The appellant sent the advice through an unstamped envelope. Respondent having missed the interview made a claim for negligence and breach of duty against the appellant for non-delivery of the letter promptly”.

It will be seen that both parties are agreed that the letter Exh. E addressed to the plaintiff at his Post Office Box in Abuja by Shell Petroleum Development Company through the defendant which carries on business as Couriers was accepted by the defendant at its Port Harcourt branch on 26th October, 1993.

Both parties are also agreed that Exhibit C which was an advice by defendant to plaintiff through the Post-Office Box of plaintiff for plaintiff to come to the Abuja Branch Office of defendant to collect his package- Exhibits D and E, was sent out by defendant from its Abuja Office on 2nd November, 1993 and duly delivered at the appropriate postal box on that day.

However, whereas plaintiff insists that the package addressed to him was received at Abuja office of defendant on the same day in which it was dispatched at its Port Harcourt office i.e. 26th October, 1993 to establish his allegation of negligence on the part of defendant; nevertheless it is the contention of defendant that there was no undue delay on its part because the package arrived its Abuja office on 29th October, 1993 and it notified the Postal Box of plaintiff through Exhibit C on 2nd November, 1993.

It becomes necessary to resolve this point because at p.2 of appellant’s reply brief appellant stated thus:-

“1.3 it is clear form the above that the negligence alleged is for the delay that occurred after the package arrived Abuja. The issue of how long it took the letter to arrive Abuja and whether that amounted to negligence was not placed before the court as an issue between the parties.

1.5 It is therefore not in doubt that the negligence alleged is for the delay after the arrival of the package in Abuja and that was what the court found in favour of the plaintiff. The court further found that the package arrived Abuja on 29.10.99. If the issue of delay, if any, before the package arrived Abuja was before the court, it would have been necessary for the defendant to go on to explain whether packages received after closing hours is treated as received on the next day for the purpose of computing the 48 hours delivery time.”

As carefully couched by the respondent in the two sub-paragraphs above quoted from the appellant’s reply brief, it would appear that the date 29th October, 1993 when, according to the evidence of DW1 for the defendant, the letter arrived Abuja is not in dispute in this suit as no issue was joined as to the time it took the letter to arrive Abuja; and further since the lower court accepted the evidence of DW1 on the point. However, a consideration of appellant’s brief would show that in attempting to exonerate itself from the finding of negligence against it by the trial court it had made much heavy weather of the fact that the package arrived Abuja on 29th October, 1993. It is therefore necessary to examine as a preliminary point whether issues were joined on the averment in paragraphs 6, 8 and 10(i) of the plaintiffs statement of claim that the package was received in Abuja on 26.1 0.93.

In effect, did the trial judge have a valid basis for his finding that the package arrived Abuja on 29.10.93 and for using that day as the basis for consideration of defendant’s alleged negligence?

I quote below in full the pleadings of the parties which consist of:-

(a) Plaintiff statement of claim; and

(b) Amended statement of defence of defendant.

In the High Court of the Federal Capital Territory, Abuja

Holden at Abuja

Between: Suit No. CV/414/93

Engineer David Nwachukwu – Plaintiff

And

I.M.N.L. – Defendant

Statement of Claim

1. The plaintiff is an unemployed Engineer and resident within the Federal Capital Territory. The plaintiff’s Engineering qualifying certificate is hereby pleaded.
2. The defendant is a limited liability Company with RC No. 27329 and carries on the business of courier service within Nigeria with an office at Ibro Hotels, Zone 5, Wuse – Abuja.
3. The plaintiff contend that sometime this year, he applied for employment at Shell Petroleum Development Company of Nigeria Ltd. Port Harcourt, as an Engineer.
4. That on 20.10.93, Shell Petroleum Development Company of Nigeria Ltd., Port Harcourt invited the plaintiff for an interview for test Trainee Petroleum Engineers via letter-dated 20.10.93 reference No. CRCE/57.41. This letter is hereby pleaded. That the aforesaid letter was sent through the defendant as they accept accepted to deliver same to plaintiff as per the address on the envelope.
5. That at the Port Harcourt Branch of the defendant, they advised their Abuja Branch to advise the Box of Plaintiff on arrival of the letter. The Airbill No.678897 addressed to plaintiff is hereby pleaded and shall be relied upon during the trial of this case.
6. The plaintiff avers that the Airbill No. 678897 to plaintiff arrived at Abuja on the 26.10.93.
7. That the defendant refused to put the plaintiff on notice immediately to collect his package. Plaintiff was written a letter dated 02.11.93 and was posted to plaintiff without any stamp. Plaintiff herby pleaded that letter and the unstamped envelope addressed to him.
8. That the plaintiff got the letter in this postal box on 15.11.93 and immediately went to their office to collect the package. That the plaintiff was told in the presence of his friend that the package arrived Abuja on 26.11.93, further that the plaintiff normally check his postal box 5453 everyday because of the letter he was expecting from Shell Petroleum Company of Nigeria Ltd., Port Harcourt.
9. That plaintiff further states that the defendant owes him a duty of care to ensure that he does not suffer any damage as a result of their negligence of duty.
10. That as a result of defendant’s negligence conduct in non-delivery of the package on time the plaintiff missed the interview slated for 1.11.93.

Particulars of Negligence

1. Failure to advise the plaintiff postal box No.5443 promptly when they received the package in Abuja on 26.11.93.
2. Keeping the plaintiff informed through an unstamped envelope, just to further delay the delivery.
3. That on 15.11.93, the plaintiff sent a telegraph No. 183552 to Shell Petroleum Company of Nigeria Ltd., Port Harcourt. But there is no reply. Telegraph No. 183552 is hereby pleaded and shall be relied upon during the trial of this suit.
4. The plaintiff further contended that the defendant had him in contemplation as the person that would be affected through their negligent conduct.
5. That the plaintiff suffered nervous shock and mental distress as a result of defendant’s conduct.
6. Whereof the plaintiff claimed from the defendant the sum of One Million Naira as general damages for the injuries that occurred to him as a result of the defendant negligence and breach of duty of care.

Dated the 2nd.. day of December, 1993.

Amended Statement of Defence

1. Save and Except as is otherwise expressly admitted the defendant denies each and every allegation of fact contained in the plaintiff’s statement of claim as if same were set out seriatim and separately denied.
2. The defendant denies paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14 of statement of claim and puts the plaintiff to strict, proof of the facts therein contained.
3. In response to paragraphs 4, 5, 6, 7, 8, and 9 of the statement of claim, the defendant avers that the document in question was received by it on the 26th of October strict, 1993 by 6.15p.m. In Port Harcourt leaving only 3 working days before the 1st of November, 1993 when the purported interview was slated.
4. Further to paragraph 3 above, the defendant avers that it is its contract with Shell that under its conditions of carriage “IMNL will not under any circumstances, be liable for delay in pick up, transportation, delivery of any shipment, regardless of the cause of the delay”. That being so, the defendant shall contend at the hearing of this suit that the contract of carriage in this case does not impose on it a duty of care to the plaintiff. The defendant shall rely on the said conditions of carriage.
5. Further to paragraph 3 and 4 above, the defendant shall further contend that even it owes the plaintiff a duty of care, it is not negligent in that the plaintiff was promptly informed on the 2nd of November, 1993 of the arrival of the parcel.

6A. Further to paragraph 5 above, the defendant avers that the letter dated 2nd of November, 1993 was posted to the Postal Box Number 5453 in a stamped white IMNL/UPS letter headed envelope on the 2nd of November, 1993 and the name and Postal Address of the plaintiff was TYPED on the said envelope.

6B When the plaintiff was informed about the facts in paragraph 6A above, he stated in the presence of two of the employees of the defendant company that he was satisfied with the explanation given and that the letter must have been tampered with by his friend who owned the Postal Box.

8. The defendant shall further contend at the hearing of this case that even if there was a delay in informing the plaintiff of the arrival of the parcel, the delay did not cause any damage to the plaintiff in that there was not enough time between the despatch of the letter and the date for the interview.
9. The defendant denies paragraphs 9 and 10 of the statement of claim and avers that the nature of the instruction for delivery which requires that the post office box of the plaintiff be advised on arrival of the package did not suggest any urgency for the letter to get to the plaintiff within 5 days.
10. Whereof the defendant will urge that the plaintiff’s case be dismissed in its entirety as vexatious, frivolous, highly speculative, a grossly misconceived afterthought and unmeritorious. Dated this………day of…………………….1994″.

It will be found that the averments in paragraphs 6, 8 and 10(1) of the plaintiff that the Airbill No. 678897 (Exhibit D) arrived at the office of defendant on 26.10.93 was never specifically denied.

It is true that there is a general denial of the averments in paragraph 2 of the amended statement of defence and an evasive denial in para. 3 when defendant avers that the document was received by it on 26th October, 1993 by 6.15 p.m. in Port Harcourt leaving only 3 working days before the 1st November, 1993 when the purported interview was slated.

It is trite law and Order 25 r. 14(i) of the High Court of the Federal Capital Territory Abuja (Civil Procedure) Rules, 1990 that when a party denies an allegation of fact he shall not do so evasively but shall answer the point of substance-

See also Ebenezer Nwokoro and others v. Titus Onuma & Anor (1990) NWLR (Pt.136) 22; (1999) 9 SCNJ 63 at pp.67, 68, 78 – 80.

As there was no effective traverse of plaintiff’s averment that the package addressed to him from Port-Harcourt was received in defendant’s office in Abuja on 26th October, 1993, it was not permissible for DW1 to give evidence in contradiction of that averment by saying that the Abuja office of defendant received the package on 29th October, 1993. A fortiori, there was no basis for the learned trial judge to find that the package arrived Abuja 29.10.93.

In the event, I agree with the statements in para. 1.3 and 1.5 of appellant’s brief as previously quoted in this judgment. However, it must be clear that the negligence alleged for delay that occurred after the package arrived Abuja must be seen from 26th October, 1993 and not from 29th October, 1993.

I now go on to consider the issues for argument as formulated having regard to the established date of arrival of the package in Abuja being 26th October, 1993 and the date of addressing the notification of arrival of package to plaintiff via the Post Office Box – Exh. being 2nd November, 1993.

On Issue 1 – as to whether the lower court was right when it held that the appellant owed the respondent a duty of care to advise its Post Office Box before the 1st of November, 1993 and that the defendant was liable in negligence for failing to do so.

It is the contention of appellant in paragraph 3.0 of its brief that this issue would be resolved by answers to the questions, what duty of care, if any, does the defendant courier company owe the plaintiff and secondly was this duty of care breached?

In answer – appellant contends that the lower court in reliance on the cases of Hedley Byrne v. Heller & Partners (1964) A. C. 465 and on the doctrine of Res Ipsa Loquitur completely misunderstood the issues before it. The appellant contends that by the contract between Shell and Itself it was Shell which could rely on defendant’s skill and not the plaintiff – a stranger to the contract; that in any event it was never an issue in the case that Shell who was not a party to the suit relied on the skill of defendant.

Appellant, relying as it does that the letter arrived Abuja on Friday 29th October contends that there was no unexplained circumstance to warrant the application of the doctrine of Res Ipsa Loquitur since a letter of advise according to the instruction was sent to plaintiff on 2.11.93.

Appellant therefore contends that in such a situation the only duty of care in the appellant was to ensure that the Box is advised and that the package is delivered intact when respondent responds to the advice.

However, appellant answers that in the circumstances of this case, the position in law is as stated by Lord Wilberforce in Anns & others v. London Borough of Merton (1977) 2 All E. R. 492 at 498 when his learned Lord, relying on the triology of cases

(i) Donoghue v. Stevenson (1932) A. C. 562; (1932)

All E. R. 1;

(ii) Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. (1963) 2 All E.R. 575; (1964) AC 465

(iii) Home Office v. Dorset Yatch Co. Ltd. (1970) 2 All E. R. 294; (1970) AC 1004 established that “the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of the situation within those of previous situations in which a duty of care has been held to exist; rather it should be considered first whether as between the wrong doer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage in which case a prima facie duty of care arises; and if that question is answered in the affirmative, secondly to consider whether there are any consideration which ought to negative or to reduce or limit the scope of the duty or the class of persons to whom it is owed or the damages to which a breach of it may give rise.”

Applying those principles appellant concedes that there may be a prima facie duty to deliver the package to the plaintiff intact. However, appellant contends that there is no duty of care in it to ensure that plaintiff receives it latest by the 31st October, 1993, to enable him attend the interview on 1st November, 1993.

For this he relies on, inter alia, the following factors:-

(i) There was no physical address to which the letter will be delivered;

(ii) The letter arrived on a Friday, and two days thereafter were not working days.

(I have already in this judgment ruled that there was no sufficient denial of the averment of plaintiff that the letter arrived Tuesday 26th October, 1993.);

(iii) The letter was not marked ”urgent or deliver as soon as possible”.

(iv) The defendant was not informed of the content or the need to deliver before 31st October, 1993.

Appellant therefore contends that it could not have been in the contemplation of appellant – a courier company that its failure to advise the Box on or before 31st October, 1993 will cause damage to plaintiff and that the advice sent out on 2nd November, 1993 was sent out within a reasonable time.

Appellant also contends that mental and psychological shock as claimed by the plaintiff/respondent is a consequence which appellant could not reasonably have foreseen if it did not advise the plaintiff’s Box earlier.

On this issue, the respondent submits as follows:-

That under cross-examination and re-examination DW1 states that the delivery time is 24 hours; that it is the duty of defendant/appellant to mark a mail ‘deliver as soon possible’ at no extra cost for urgency to their customer. Respondent contends that the 6.15 marked on the Airway Bill Exh. D as the time of receipt in Port-Harcourt could possibly have been 6.15 a.m and not 6.15p.m and that there was a clear possibility of its arriving Abuja by 6.15p.m. on 26.10.93.

Respondent also contend that the learned trial Court rightly conceived the principle in Hedley Byrne & Co. Ltd v. Heller & Partner (1964) A. C. 465 at P. 594 as well as the Res Ipsa Loquiture doctrine the latter which allows the plaintiff to treat the actual facts of a case as evidence of negligence on the defendant’s part leaving it to Defendant to produce evidence, if he can, in rebuttal. Respondent also submits that mental and psychological shock is a consequence, which appellant could reasonably have foreseen as a result of its failure to advise the plaintiff’s Postal Box promptly on the receipt of the letter.

He relies on Hambrook v. Stokes Brothers (1925) 1 K. B. 141. The learned trial Judge had this to say in his judgment:-

“This court however on a careful examination of these two submissions is of the opinion that the defendant being a courier company, by the nature of its services is governed by special rules. It is a fact, which requires no proof that a courier company like the defendant enjoys special skill to deliver packages sent through them with speed and accuracy. For that reason therefore, customers engage their services for the ultimate benefit of themselves and of those of third parties for which the packages are meant for. It is also a fact that the charges for the said services are higher than those of the general post, which more often is associated with delays and inaccuracies. In this connection therefore, the defendant cannot exempt itself form its responsibility to a third party. The position of the defendant is no different from the case of Road Users. A driver of a vehicle on the road is under a duty to take proper care not to cause damage to other road users, including drivers and passengers in other vehicles, cyclists and pedestrians.

Also the manufacturer of chattels, it was established in the leading case of the Donoghue v. Stevenson, that a manufacturer of chattel owes a duty of care to the ultimate consumer thereof and that he will be liable in negligence if the consumer is harmed by some defect in the chattel.

In the case before us, Shell entered into the contract with the defendant because of its special skill. The letter packaged from Shell left its destination on the 26.10.93, Shell was inviting the plaintiff from Port-Harcourt, who resides in Abuja to attend its scheduled interview on the 1.11.93. By coming to the defendants. Shell had relied on its skill and ability to deliver the package before the 1.11.93.

As a result of its own judgment and practice, and of the peculiar nature of the address at the back of the package, the defendant only sent the letter to this plaintiff’s box on the 2.11.93, a day after the interview. The delay no doubt was as a result of the judgment of the defendant, but the defendant forgot that Shell had relied on its care or skill, and defendant ought to have known Shell was relying on them. The Hedley Byrne & Co. Ltd v. Heller principle comes in, which established for the first time that a negligent mis-statement whether spoken or written which cause financial loss may give rise to an action in damages for negligence despite the absence of any fiduciary or contractual relationship between the parties.”

I agree with the submission of appellant that the position of the law in the circumstance of this case in the Nigerian con is the position as stated by Lord Wilberforce in Anns & Ors v. London Borough of Merton case (supra) at P 498.

That case concerned the construction of the Public Health Act, 1936. In particular, local authorities were enabled through building bye-laws made under section 61 of the Act to supervise and control the construction of buildings in their area and in particular, the foundations of buildings which should be taken down to such depth as to safeguard the building against damage by swelling and shrinking of the sub-soil. In February 1962, the council approved building plans for the erection of a two-storey block of maisonettes, which were deposited under the byelaws. The approved plans showed, inter alia, the base wall and concrete foundations of the block ‘3 feet or deeper to the approval of local authority’. The written notice of approval drew attention to the requirement of the bye-laws that notice should be given to the council surveyor both at the commencement of the work and when the foundations were ready to be covered. When the foundations were ready the council had the power to inspect and to insist on any corrections necessary to bring the work into conformity with the bye-laws but were not under any obligation to inspect the foundations. On completion of the block in 1962 the builder, who was also the owner of the block, granted a long lease of each of the maisonettes, the last conveyance being made on 5th November 1965. In February 1970, structural movements began to occur resulting in cracks in the walls, sloping of floors and other defects. On 21st February, 1972 the plaintiffs, who were the lessees of the maisonettes, issued writs against the builder and the council claiming damages. Two of the plaintiffs were the original lessees of their maisonettes and the other plaintiffs had acquired their leases by assignment in 1967 and 1968. The plaintiffs claimed that the damage to the maisonettes was attributable to the fact that the block had been built on inadequate foundations, there being a depth of two feet, six inches only instead of three feet or deeper as shown on the deposited plans. As against the council, the plaintiffs claimed damages for negligence by their servants or agents in approving the foundations on which the block had been erected and/or in failing to inspect the foundations. A preliminary issue was tried on the question whether the plaintiffs’ claims were barred under S.2 (1) (a) of the Limitation Act 1939. The official referee held that the plaintiffs’ cause of action had accrued on the date of the first conveyance of each of the maisonettes, i.e. more than six years before the issue of the writs, and that accordingly the claims were barred under S. 2 (1) (a). The Court of Appeal, however, allowed appeals by the plaintiffs, holding that a cause of action did not accrue before a person capable of suing discovered, or ought to have discovered, the damage. The council appealed to the House of Lords and obtained leave to argue the question whether it was under a duty of care to the plaintiffs at all.

Held -“The appeal would be dismissed for the following reasons-

(1) The question whether the council were under a duty of care towards the plaintiffs had to be considered in relation to the duties, powers and discretions arising under the Pubic Health Act,1936. The fact that an act had been performed in the exercise of a statutory power did not exclude the possibility that the act might be a breach of the common law duty of care. It was irrelevant to the existence of a duty of care whether what was created by the statute was a duty or a power the duty of care might exist in either case.

The difference was that, in the case of a power, liability could not exist unless the act complained of was outside the ambit of the power.

(2) (per Lord Wilberforce, Lord Diplock, Lord Simon of Glaisdale and Lord Russell of Kilowen). Although the 1936 Act and the bye-laws did not impose a duty on the council to inspect the foundations, it did not follow that a failure to inspect could not constitute a breach of the duty of care; it was the duty of the council to give proper consideration of the question whether they should inspect or not.

(3) It followed that the council were under a duty to take reasonable care to secure that a builder did not cover in foundations, which did not comply with bye-laws. That duty was owed to owners and occupiers of the building, other than the builder, who might suffer damage as a result of the construction of inadequate foundations. A right of action would, however, only accrue to a person who was an owner or occupier of the building when the damage occurred. Accordingly, the council would be liable to the plaintiff if it were proved that, in failing to carry out an inspection, they had not properly exercised their discretion and had failed to exercise reasonable care in their acts or omissions to secure that the byelaws applicable to foundations were complied with, or that the inspector having assumed the duty of inspecting the foundations, and acting otherwise than in the bona fide exercise of any discretion under the 1936 Act, had failed to take reasonable care to ensure that the bye-laws were complied with and that, in either case, the damage suffered by the plaintiffs was a consequence of that breach of duty.”

Applying the principle laid down at P.498 of the report, I have no doubt that the respondent who was the addressee of the letter by Shell was as close in proximity to the appellant as was Shell with whom it had a contract and was as such in contemplation of the appellant, careless or negligence on whose part, may be likely to cause damage to the addressee/respondent thus making a prima facie duty of care to arise.

I now consider, whether there are any consideration which ought to negative or to reduce or limit the scope of duty or class of persons to whom the duty is owed or the damages to which a breach may give rise?-

As to negativing circumstances-

I am quite satisfied with the finding of the learned trial Judge that even were the 29th October, 1993 to be the accepted date of arrival of the letter in Abuja, it was an act of negligence for which appellant would be liable that by an error of judgment it did not consider it necessary to communicate the Postal Box address of the respondent until 2nd November, 1993.

The position of the appellant becomes even less tenable when it is considered that from the pleading of the parties the letter for the respondent was received at its Abuja office on 26th October, 1993. This is because it is the evidence of DW1, its own witness that in such circumstance the normal time when such notification should have taken place was 24 – 48 hours of the acceptance of the letter at its Port-Harcourt office.

The appellant goes on to contend on this issue on the second limb of the dicta of Lord Wilberforce in the St Anns Case – in respect of circumstance which may negative or reduce or limit the scope of the duty or class of persons to whom it is owed or to the damages to which a breach of it may give rise – that mental or psychological shock is a consequence which it is impossible for the defendant to foresee.

The defendant is reminded that the question is not one of impossibility to foresee but one, which is not a reasonably foreseeable consequence.

The plaintiff gave evidence that the negligence of the defendant placed him at a disadvantaged position in consequence of which he suffered mental and psychological depression; that he felt deprived of an opportunity for which he was making a claim of N1 Million.

It is also obvious from the testimony of DW1 that when respondent received the letter of Shell from her he made a series of enquiries from her from which it was obvious that the plaintiff was agitated because he did not receive in time the letter which invited him for interview and which he had long been expecting.

In such circumstance, and subject to the reasons given by the learned trial Judge for finding contributory negligence on the part of the plaintiff, I am of the opinion that the learned trial Judge rightly held that the delay of defendant in sending the notification before the date of the interview was a natural and direct cause of plaintiff’s loss of opportunity.

The plaintiff gave evidence that the loss of opportunity in turn caused him mental and psychological shock for which he claimed one Million Naira. The appellant questions whether mental and psychological shock is a reasonably foreseeable consequence of their proved negligence.

One wonders if the appellants are unaware of the rule at common law which the learned trial judge quoted that “the defendant must take the victim as he finds him”.

The law is that once the kind of damage viz – physical injury to person or property could have been foreseen in a general way, the defendant is liable for the full extent of the harm, even though that extent was unforeseeable – Hughes v. Lord Advocate (1963)A.C. 837.

As to personal injuries the law is that one who is guilty of negligence to another must put up with idiosycrasies of his victim that increase the likelihood or extent of damage to him; “it is no answer to a claim for a fractured skull that its owner has an unusually fragile one” – Per Mackinon L. J. in Owens v. Liverpool Corporation (1939) 1 K.B. 394,400-1.

Also Smith v. Leech Braint & Co. Ltd. (1962) 2 Q. B. 405.

See also Charlesworth & Percy on Negligence 7th Ed. At pp. 243-245 Arts. 4-17 to 20.

In the circumstance, I find no reason to disturb the finding of the learned trial Judge that appellants were liable in negligence to the respondent. What I have said in this judgment in answer to Issue 1 is enough to dispose of both Issue 2 and 3 as formulated by the appellants.

However, with respect to the arguments of appellants on Issue 2 that the award was based not on facts but on a speculative possibility, I add for the sake of clarity that the chances of the respondent in gaining the employment with Shell was as good as that of any other candidate selected for interview he, having possessed such qualifications to warrant Shell inviting him for interview. Again it is contended by appellant on this issue that there were no evidence of financial benefits of the job which the plaintiff has now lost nor of evidence as to how long it took him thereafter to secure another job.

Perhaps appellants need be reminded that plaintiff’s claim before the lower court was for general damages for the tort of negligence and not for special damages either in tort or in contract.

In so far as arguments of appellant on Issue 3 are based mainly on the inadmissible evidence that the letter exhibits D and E were received on 29th October, 1993, such arguments as they may proffer have no leg to stand on.

In the circumstance, I find that the appeal lacks merit.

I dismiss it with cost of N10,000 in favour of the respondent.

---

Other Citations: (2000)LCN/0763(CA)