Isc Services Ltd. V. Genak Continental Ltd. & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

GALINJE, J.C.A.

This is an appeal against the judgment of Dan Abutu, J. of the Federal High Court sitting in Lagos, which was delivered on the 30th of January, 2001.

The first respondent herein who was the plaintiff at the lower court claimed against the appellant and the 2nd respondent, the following reliefs:

1. Against the 1st defendant a declaration of the court that the 1st defendant was negligent in the issuance of the Import Duty Report (Henceforth to be referred to as IDR) NO. ISC 0400040/001 dated 12th February 1998, especially in describing the plaintiff’s cargo in column 21 of the said IDR as ‘other waters containing sweetners/flavours in column 22 in inflating the cost & freight value of the cargo to N1,693,446.00 in column 23; in negligently placing the plaintiff’s cargo under HS Code 2202.9000 in column 24; in arbitrary (sic) fixing the rate % (percentage) of duty to 100% and under column 25 of the said IDR fixing the duty payable on plaintiff’s cargo as N1,693,446.00.
2. A Declaration by the court that the plaintiff imported as against the first defendant’s IDR No. ISC 0400040/01; 3000 cartons of merry non-alcoholic grape juice; that the C & F value of the cargo is N948,000.00 that under the Custom and Excise Tariff etc consolidation Decree No.4 of 1995 and Pre-Shipment of Imports Decree No. 11 of 1996, the plaintiff’s cargo falls under code 2009.6000 which attracts 55% duty on the FOB value of the goods.

2(a) A Declaration that the defendants are bound by law to charge duty only on the FOB value of the goods and not on the CIF of same.

2(b) A Declaration that the FOB value of the goods, the subject matter of this suit being USD7,800.00 equivalent of N620,412.00 that the 55% of same is N341,226.60.

3. An Order of the court directing the 2nd defendant or its agents or privies to accept from the plaintiff the sum of N341,226.60 being the 55% of the FOB value of the goods as full and final duty payable over the plaintiff’s cargo – 3000 merry non-alcoholic juice as contained in the whole shipping documents, the subject matter of this suit.
4. An Order of the court against the defendants, jointly and severally awarding special damages in favour of the plaintiff as follows:
5. Demurrage paid to the Shipping Company – was a Delmas Nigeria Ltd. covering from 17th February, 1998 (when the goods arrived) till 6th November 1998 – N1,348,467.70.
6. Nigerian Port Authority charges N1,500 per day from 17/2/98 till the date of clearance of the cargo from the port 11/11/98… N486, 188.49.
7. Accumulated bank interest on the sum of N948,000.00 being the invoice value of the cargo at the rate of 21% per month from 10/12/97 till 11/11/98 when the cargo was discharged/cleared from Apapa Wharf N2,189,830.00.
8. The sum of N3,552,000 being the loss of profit by the plaintiff resulting from the cancellation of the supply orders by A. S. SAAB Nigeria Ltd… N3, 552,000.
9. General damages of N5,000,000.00

Total 12,576,536.19.

6. Cost of the action.

Pleadings having been filed and exchanged, the case was set down for trial at the lower court. The 1st respondent here who was the plaintiff at the lower court called only one witness and tendered several documents after which it closed its case. The appellant and the 2nd respondent herein were 1st and 2nd defendants at the lower court. They jointly called six witnesses, tendered several documents, after which they also closed their case.

After counsel’s addresses and in a considered judgment, the 1st and 2nd claims of the 1st respondent herein were granted.

The court also awarded to the 1st respondent the sum of N1,834,556.19 as compensation for the expenses incurred on demurrage plus port charges and N3,552,000.00 as damages for loss of profit.

The sum of N10,000.00 was awarded as general damages.

Not satisfied with the judgment, the appellant who was the 1st defendant at the lower court filed this appeal against the decision the trial court. Initially two grounds of appeal were filed for the appellant.

However, with leave of this court nineteen (19) additional grounds of appeal were filed.

The 1st respondent who was the plaintiff disagreed with certain aspect of the judgment and also cross-appealed on two grounds of appeal.

The facts that gave rise to this appeal are aptly set out in the briefs of argument of parties, albeit with different variations to suit their respective cases. However, the facts as I understood them are as follows:

The 1st respondent herein is a company registered in Nigeria and engaged in the business of importation and exportation of goods. The appellant is an Inspection Agency appointed by the Federal Government through Ministry of Finance, the 2nd defendant/respondent herein to inspect goods that were imported into the country at the material time.

The plaintiff/1st respondent ordered for 3000 cartons of merry non-alcoholic grape juice from a company in Spain in November 1997. All the documents in support of the goods indicated that the 3000 cartons contained merry non-alcoholic grape juice.

When the goods were ready for shipment to Nigeria from Spain, the appellant who was represented by Intertee Testing Services was invited to carry out inspection of the goods. After inspection the appellant issued to the 1st respondent a certificate of clean report of findings dated 12th February, 1998.

The appellant also prepared and issued import duty report dated the same 12th February, 1998. In the import duty report, it was stated that the cargo of the 1st respondent was other waters containing sweetners/flavourings instead of ‘merry non-alcoholic grape juice.’ This entry brought about a change of classification of the goods as follows: Cost Insurance and Freight value now stands at N1,693,446 instead of USD7,800 Free On Board value USD1200, HS Code 2202.9000 instead of HS Code 2009.6000, rate of 100% instead of 55%. The duty payable was jerked up from 521.400 to N1,673.446.00.

At the receipt of the IDR the 1st respondent and its bank protested to the appellant who admitted through exhibit 13, an internal memorandum that it made a mistake and assured the 1st respondent that the mistake will be corrected.

When the goods finally arrived the country, the custom services refused to clear them on the ground that the duty payable on ‘other waters containing sweetners/flavourings’ which is 100% as contained in the import duty report must be paid before clearance.

At this stage the appellant now justified the reclassification of the goods on what it said were results of test carried out on the goods by experts which showed that there was unusual addition of carbondioxide added to the fruit juice which showed that the drink became aerated or carbonated fruit juice that relegated the drink from the usual tariff book classification to a completely different heading which would attract a separate duty from what the importer used to pay.

Because the custom services could not clear the goods, the contract for the supply of the goods was cancelled and port charges and demurrage continued to grow, as a result the 1st respondent claimed he had suffered loss, wherewith it initiated this action against the appellant and the 2nd respondent at the Federal High Court Lagos from where this appeal emanates.

In line with Order 6 rules 2, 4 and 5 of the Rules of this court, parties filed their necessary briefs of argument and reply briefs.

This appeal came up for hearing on the 5th of December 2005. Mr. E. Abiodun, learned counsel for the appellant, identified the appellant’s brief which is dated 27th day of June 2002 and the appellant’s reply brief dated 17th of March 2005. In his argument he submits that the reply brief is in response to the cross appeal as well as the main appeal. He therefore adopted the two briefs and urged the court to rely on same and dismiss the appeal.

On the issue of agency which was raised suo motu by the court with respect to 1st and 2nd defendants at the lower court, Mr. Abiodun referred the court to the 2nd further amended statement of claim at pages 289 – 294 of the record of appeal, particularly paragraphs 2 and 3 of page 289 and contends that the first defendant was acting as agent of the 2nd defendant as a known and disclosed principal. According to him, a defendant who is acting for a known principal incurs no liability and no judgment can be given against such a defendant. In support of this, learned counsel cites Pwol v. Union Bank Plc. (1999) 1 NWLR (Pt. 588) 631 at 636 paras. D – E.

On the issue of any dispute arising in respect of the duty to be paid by importer, Mr. Abiodun refers the court to paragraphs 8, 13, 13(b) of the 2nd further amended statement of claim on pages 289, 290 of the record of this appeal and submits that there is no doubt the respondent is disputing the duty assessed on the import duty report. According to the learned counsel the Pre-Shipment Decree provides that the importer must first of all pay the duty before seeking any relief for variation before the court. He referred to S. 136(1) of the Customs and Excise Management Act and says the duty demanded must be paid and the importer must come to court within six months. Learned counsel further submits that the 1st respondent did not pay the duty demanded before coming to court. According to the learned counsel, payment of the duty demanded is a condition precedent and that the non-payment has far reaching implications and that is, the 1st respondent cannot file any action seeking for relief for the determination of the appropriate duty to be paid.

Finally on this issue, learned counsel submits that any action filed in disregard of this condition will be incompetent and any defect in competence is fatal to the proceedings and if concluded will be a nullity however well conducted. In support he cited Madukolu & Ors. V. Johnson Nkemdilim (1962) 1 All NLR (Pt. 4) 584 at 595, (1962) 2 SCNLR 341.

On the issue of the claim for demurrage which was also raised by the court, Mr. Abiodun submits that if the duty contained on the IDR had been paid, demurrage would have not accrued. Any ancillary claim is dependent on the payment of the duty charged.

Finally, learned counsel referred the court to S. 3(2) of the Pre-Shipment Inspection of Imports Decree of 1996 and urged the court to allow the appeal.

Mr. S. S. Liman, who appeared for the 2nd respondent identified the 2nd respondent’s brief which is dated 28th July, 2004 and submits that he adopts and relies on same.

On the issue of agency and dispute arising in respect of payment of import duty, Mr. Liman associates himself with the submissions of Mr. Abidoun, learned counsel for the appellant. On the issue of payment of duty before instituting this action, he relies on the authority of Sunday Eguamwense v. James I. Amaghizemwen (1993) 9 NWLR (Pt.315) 1, (1993) 11 SCNJ 27 at 45 ratio 10. He then urged me to allow the appeal and dismiss the claim of the 1st respondent.

Vincent Chieyine Esq. counsel for the 1st respondent identified the 1st respondent’s brief dated 5th of April 2004, and filed on the 22nd April 2004 the notice of cross appeal dated 24th September 2001 and filed on the 25th September 2001 and the reply brief dated 3rd August 2005 and filed on the 8th August 2005, and adopted the brief of arguments and urge the court to dismiss the appeal and allow the cross appeal.

On the issue of the agency which was raised by the court Mr. Chieyine submits that in contract, a principal and agent cannot be brought on the same suit, but in tort they are joint tort feasors. According to him the claim of the 1st respondent at the lower court at pages 289 – 294 of the record compiled for this appeal is an action in tort and so the principal and agent are properly joined. In aid, he cites Asafa Foods Factory Ltd. v. Alraine (Nigeria) Ltd. (2002) 12 NWLR (Pt. 781) 353 at 373 paras. C – E; Edok-Eter Mandilas v. Ale (1985) 3 NWLR (Pt. 11) 43.

On the issue of payment of duty before going to court, learned counsel submits that section 136 of the Customs and Excise Management Act is totally inapplicable to this case. According to him, what was in contention in the court below was that the plaintiff’s imported non-alcoholic grape juice, which is clearly stated in all its import documents including the Clean Report of Findings issued by the appellant and the same appellant negligently issued Import Duty Report and wrongfully describes the plaintiff’s goods as ‘other waters containing sweetener.’ According to the learned counsel these are two different goods which would have been confiscated and importer prosecuted under section 2, 3 and 7(2) of Pre-Shipment Inspection of Imports Decree No. 11 of 1996.

In a continued argument, learned counsel submits that the goods imported by the 1st respondent were governed by Customs Tariff (Consolidation) Decree No.4 of 1995 and Pre-Shipment Inspection of Imports Decree No. 11 of 1996 and that these laws codify all the goods to be imported into the country and clearly set out the duty to be paid on each goods and with respect to the year and specify that nobody should vary the duty payable on the goods which must be published in the gazette.

Before I take on the issues raised by the parties in their respective brief of argument I will like to comment briefly on the preliminary issues that were raised by the court, and counsel were invited to render address on them.

The first of such issues is whether the appellant being an agent of a known principal, which is the Federal Ministry of Finance, can be sued? The general rule is that a contract made by an agent acting within the scope of his authority for a disclosed principal is in law the contract of the principal and as such the principal and not the agent is the proper person to sue or be sued upon the contract. In other words an agent acting on behalf of a known and disclosed principal is not liable for his acts of agency. See: Pwol v. Union Bank (supra) at page 636 paras. G – H. See also Niger Progress Ltd. v. N.E.L. Corp. (1989) 3 NWLR (Pt. 107) 68; Khonam v. John (1939) 15 NLR 12.

In tortuous act however, an agent who is an independent contractor can be sued without his principal. This is so because even though the agent is employed, his employer does not control his method of work. There are however some exceptions to this rule and those are:

(a) where the employer authorized the tortuous act;

(b) where the master or principal authorized acts which are intrinsically dangerous or statutory breach of duty, then the agent and the principal will be liable to be sued jointly.

In the instant appeal, the Federal Government appointed the appellant therein as independent contractors for the purpose of inspecting goods that were imported into the country at the material time. The expenses incurred by such agents in handling, presentation, sampling, shop testing and any other thing required in connection with the inspection of the goods are borne by the overseas seller of the goods concerned.

Since the appellant was an independent contractor I hold that it was rightly sued jointly with the Federal Ministry of Finance, an organization that was in charge of the program of Pre-Shipment inspection.

On the issue of payment of duty assessed before going to court in case of disagreement, the question here is whether the 1st respondent’s claim was solely challenging the assessment of duty on its cargo? My answer here is in the negative. A careful perusal of the claims of the 1st respondent at the lower court, it is clear that it is not complaining against the assessment of the duty on import duty report. What it is complaining about is that the appellant was negligent in the issuance of the import duty report No. ISC 04000040/001 dated 12/2/98 in the description of the 1st respondent’s cargo. S. 136(1) of the Customs and Excise Management Act (Cap. 84) Laws of the Federation of Nigeria 1990 provides as follows:

“If any dispute arises as to whether or what duty of customs and excise is payable on any goods, the importer, exporter or proprietor of the goods shall pay the sum demanded by the proper officer as the duty payable in respect of the goods, and thereupon the sum so paid shall be deemed to be the proper duty payable in respect of the goods unless the contrary is determined by the court upon application by the importer, exporter or proprietor which application shall be made within six months after the date of payment.” (Italics is for emphasis)

The 1st respondent’s complain is that the goods which it imported into the country were 3000 merry non-alcoholic grape juice which were correctly entered into the clean report of findings. However the appellant in preparing the import duty report negligently entered other waters containing sweetners/flavourings. It is this act of the appellant the 1st respondent asked the court below to declare wrongful. The cost and other monetary claims were consequent upon the alleged wrongful act of the appellant. I therefore agree with Chieyeni Esq. of counsel that s. 136(1) of the Customs and Excise is inapplicable here, and so I hold.

In the appellant’s brief of argument, the following issues for determination were distilled from the grounds of appeal.

“1. Whether or not the rejected documents ought to have been admitted as exhibits.

2. Whether or not the appellant was negligent and/or reckless in the execution of its duty in the inspection of the respondent’s goods and the issuance of exhibit 10.
3. Whether or not the respondent ought to mitigate damages and whether damages awarded were proved.
4. Whether or not the respondent could be said to have proved its case before the lower court.

The first respondent identified four issues for the determination of the appeal in its brief of argument and they read as follows:

1. Whether or not the trial court was right in rejecting the rejected documents.
2. Whether or not the defendant/appellant was negligent in the issuance of exhibit 10.
3. Whether or not the plaintiff did all within its power to mitigate damages and whether damages awarded were proved.
4. The respondent adopts the 4th issue for determination as stated by the appellant.

For the cross appeal, the 1st respondent/cross appellant formulated the following issues for the determination of its appeal as follows:

1. Whether or not the trial court was right in refusing to award interest to the plaintiff notwithstanding the over whelming evidence before it.
2. Whether or not the N10,000 awarded by the trial court as general damages to the plaintiff was adequate considering the facts, evidence and circumstance of the case before it.

The following issues were identified by the 2nd respondent:

1. Was the interest claimed by the plaintiff proved?
2. Whether or not the lower court was right in the award of general damages.

The four issues formulated by the 1st respondent for the determination of this appeal are similar to those issues formulated by the appellant. I will therefore adopt the issues formulated by the appellant for the determination of the appeal.

For the cross appeal, I will adopt the issues formulated by the 1st respondent cross appellant for the determination of the cross appeal as I have noted that the 2nd respondent’s two issues are similar to the ones so formulated by the cross appellant.

At the risk of repetition, I will reproduce the first issue which was formulated by the appellant thus:

“Whether or not the rejected documents ought to have been admitted as exhibits.”

This issue is said to be distilled from grounds 6, 7 and 8 of the grounds of appeal. I hereby reproduce these grounds of appeal, without their particulars as follows:

6. The learned trial Judge erred in law when he held in his ruling of 5/10/00 that the photocopies of the import duty reports with the custom revenue receipts and custom pay-in forms sought to be tendered did not go to any issue and were not relevant and therefore rejected same.
7. The learned trial Judge erred in law by rejecting the tendering of the European Community Binding Tariff Information of 24/3/98 in his ruling of 11/11/99.
8. The learned trial Judge erred in law by rejecting the processes sought to be tendered to show that the plaintiff/respondent had several options to minimize the alleged damages in his ruling of 25/2/2000 and by holding therein that whether or not the plaintiff/respondent could have minimized the damages was not in issue in this case.

These grounds of appeal as they are attack the rulings of 5/10/99, 11/11/99 and 25/2/2000. There are no appeals against the rulings enumerated at paragraphs 6, 7 and 8 of the grounds of appeal before this court. The appellant’s notice of appeal is at page 331 of the printed record of this appeal. It reads as follows:

“Take Notice that the 1st defendant being dissatisfied with the decision of the Federal High Court, Lagos contained in the judgment of the Honourable Justice Dan Abutu delivered on Tuesday, 30th January 2001 doth hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the reliefs set out in paragraph 4.”

This notice of appeal is clearly against the judgment of 30th January 2001. There is nothing before me which shows that appeals from the rulings mentioned at paragraphs 6, 7, 8 of the grounds of appeal are before this court. Interlocutory applications and rulings in their generic setting are governed by their own set of rules and parties to such applications have their rights and obligations, and one of these rights and obligations are right to appeal and obligation to appeal within the time frame permitted by law.

The last of the rulings was delivered on the 25th of February 2000. Appeals against such rulings would have been filed within 14 days. The notice of appeal was filed on the 9th of February 2001, almost one year after the last ruling. By the provision of section 24(2)(a) of the Court of Appeal Act (Cap. C36) Laws of the Federation of Nigeria, Volume 4 of 2004, appeals against such rulings would have been filed within 14 days. This section provides as follows:

“The periods for the giving of notice of appeal or notice of application for leave to appeal are:

(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.”

Clearly time within which to appeal against the rulings aforesaid has elapsed. This being so, the appellant would have incorporated the grounds in its final appeal only if leave to appeal out of time against the rulings had been sought and obtained. Failure to do so has rendered grounds 6, 7 and 8 of the grounds of appeal incompetent since they are not directed against the judgment which is covered by the notice of appeal.

In International Offshore Construction Ltd. & 4 Ors. V. Shoreline Lift Boats Nigeria Ltd. (2003) 16 NWLR (Pt. 845) 157 at 177 this court held:

“The 2nd to 4th appellants were joined as parties on {sic} motion on notice dated 21st March 2000. The decision, to join the 2nd to 4th appellants was based on the motion on notice dated 21st March 2000 and is not contained in the judgment of 14th December 2000 being appealed against, therefore ground 2 of the amended notice of appeal on which issue 2 for determination is distilled is equally incompetent as it does not relate to the decision of the trial court in the judgment appealed against, accordingly it ought to be struck out and it is hereby struck out.”

Since grounds 6, 7 and 8 of the grounds of appeal are incompetent, the only issue distilled from them and all the subsequent submission of counsel are also incompetent.

For all I have said here, grounds 6, 7 and 8 of the further amended grounds of appeal as well as issue I which was formulated from these grounds of appeal and subsequent submission of counsel herein ought to be and are hereby struck out.

The next issue for consideration is issue No.2 and it reads:

“Whether or not the appellant was negligent and/or reckless in the execution of its duty in the inspection of the 1st respondent’s goods and the issuance of exhibit 10.”

This issue is distilled from grounds 2, 12, 13, 15, 16, 17 and 20.

On this issue, Emmanuel Abiodun Esq. of counsel for the appellant referred to the testimonies of DW1, DW2, DW5 and DW6, and submits that the 1st respondent failed to show that the appellant was negligent in the re-classification of the 1st respondent’s goods under Chapter 22 rather than Chapter 20 on the Import Duty Report. Having so failed, Mr. Abiodun contended that the lower court was wrong to have held that the appellant was negligent in issuance of the import duty report.

Learned counsel for the 1st respondent on this issue submits that the appellant by exhibit 3, which is the clean report of findings had confirmed after thorough testing of quality and quantity that the goods were non-alcoholic grape juice. In a further submission learned counsel says the appellant had admitted through exhibit 13, which is a result of laboratory analysis of exhibit 7, the bottle of merry non-alcoholic grape juice, that the goods were non-alcoholic grape juice. Confirming this submission, Chieyeni insisted that even if carbon dioxide were added to the product it would not affect the essential character of the product and the product would remain non-alcoholic grape juice.

Finally on this issue, Chieyeni Esq. of counsel submits that the trial court was right in its judgment when it held that the reclassification of the grape juice in exhibit 10 under Chapter 22 of the Tariff Book that is under HS Code 2202, 9000 is wrongful.

On the issue of upliftment and addition of USD10500 which the appellant added to reflect the custom value of goods Chieyeni submits that exhibit 5, the certificate, which was authenticated and filed by the Chambers of Commerce in Spain, showed clearly the prevailing market price and the value of the goods. Since the prevailing market value was satisfactorily entered in the certificate value upliftment of price of goods was unnecessary.

On the explanatory notes and the international convention, Mr. Chieyeni submits that it is not part of our local law as it is not gazette that having established that what the 1st respondent imported was non-alcoholic fruit juice and same falls under the heading 2009.6000 with 55% duty, the irresistible conclusion is that the appellant was negligent in the issuance of exhibit 10, the import duty report.

The lower court held that there was no evidence before the court to the effect that the addition of carbondioxide to the grape juice had changed the grape juice to other waters containing sweetners/flavourings. Further the lower court cited page 62 of the Customs and Excise Tariff etc. (Consolidation) Decree No.4 of 1995, particularly the explanatory notes of the International Convention of the Harmonized Commodity Description and Coding system of 14th June 1983 which forms part of Decree 4, where fruits or vegetable juices containing a greater quantity of carbondioxide than is normal present in juice treated with that product are called aerated fruit juice and are not classified under Chapter 20 of the Tariff Books. The court further held that the grape juice in this case if shown to contain greater quantity of carbondioxide than is normally present in grape juice is to be called aerated grape juice.

Finally on this issue the lower court held that the quantity of carbondioxide that was present in the grape juice was not established and there was also no evidence to show that the carbondioxide present in the grape juice contained in exhibit 7 is greater than the quantity of grape juice.

In conclusion the court below declared the description of the grape juice in exhibit 10 as “other waters contain sweetners/flavourings” and the reclassification of the grape juice, also in exhibit 10 under Chapter 22 of the Tariff Book that is under HS Code 2202.9000 as wrongful. Also declared wrongful is the description of the grape juice in exhibit 10, and the court proceeded to affirm that the grape juice contained in exhibit 7 is one properly to be described as merry non-alcoholic grape juice and to be classified under Chapter 20 of the Tariff Book, that is, HS Code 2009.6000.

On the issue of price upliftment the court below held:

“In the instance (sic) case there is no evidence as to the basis of the upliftment of the price of the goods by $10,500 U.S. dollars. There is no evidence as to whether the upliftment was based on the price fixed by the government of the country of export or by the major manufacturer of the goods in the country of export. The basis of the increase ought to be made known.

The upliftment ought to be verifiable. It should not be a unilateral and unverifiable upliftment. The importer should know why the price of the goods has been uplifted. In the instant case there be no explanation as to the basis of the upliftment, I hold that the upliftment is unjustifiable and wrongful.”

At this stage the Judge made reference to the Free On Board (F.O.B) value of the goods in question, as stated in exhibit 3 to be $7,800 U.S. dollars and the Cost & Freight value to be $12,000 U.S. dollars and held that it was the Cost & Freight value of the goods as stated on exhibit 3 that is the normal value of the goods in the case before him and the duty payable ought to be assessed on the basis of the Cost & Freight value of the goods in exhibit 3. After going through the evidence as to the exchange rate and the calculation based on the Cost & Freight value of the goods in exhibit 3, the court below came to the conclusion that the duty payable on the 3000 cartons of merry non-alcoholic grape juice is N521,400.

Section 2(1) of the Pre-Shipment Inspection of Imports Decree No. 11 of 1996 provides as follows:

“Where after inspecting the goods, the inspecting agent is satisfied that all requirements as to quality, quantity and price of the goods have been complied with, the inspecting agent shall issue the overseas seller of such goods documents to be known as a ‘clean report of findings’ and ‘import duty report’ and where the inspecting agent is not so satisfied, it shall issue a document to be known as ‘non-negotiable report of findings’ in respect of the goods.”

There is no ambiguity in the wordings of this section of the law. Clean Report of Findings can only be issued after necessary inspection of the goods has been conducted and the inspecting agent is satisfied that all requirements as to quality, quantity and price of goods have been complied with. The evidence available before the court below is that the appellant had issued a clean report of findings which confirmed that the goods imported by the 1st respondent herein were merry non-alcoholic grape juice. This evidence was never controverted by the appellant and indeed the clean report of findings which was issued by the appellant is exhibit 3. The position of the law is that where evidence is unchallenged, the court would be entitled to rely thereon in coming to its decision. See Military Governor of Lagos State v. Adeyiga (2003) 1 NWLR (Pt. 802) 589 at 618 paras. D – E; Omoregbe v. Lawani (1980) 3-4 SC 108 and Nigerian Maritime Services Ltd. v. Afolabi (1978) 2 SC 79.

Having issued the clean report of findings, dated 12th of February, 1998, there was no reason for the issuance of import duty report on the same date which carried a different endorsement from the clean report of findings. If the appellant was not satisfied that all the requirements as to quality, quantity and the price of the goods were met, it was required to issue a non-negotiable report of findings as provided for by the law. There is no evidence that such a report was issued. The issuance of clean report of findings and import duty report which carried different endorsement was surely a negligent act and the Court below was right when it held that the act of the appellant was unlawful.

The action of the Federal Government that brought about pre-shipment inspection of goods that were imported into the country was to bring sanity to the economy of this country. Therefore agents who are appointed to carry out this assignment owe this nation and all those involved in the exportation and importation of goods to and from this country a duty of care in the performance of their duty. A situation where inspection agents create confusion which ultimately leads to loss of income and profit is not a healthy development for this country.

The evidence for the appellant was that it revisited the inspection of the 1st respondent’s goods where the product underwent further analysis both at home and in the United Kingdom. The results of the analysis have not been established. Even if they were, there was no evidence that the appellant was not satisfied with the quality, quantity and price of the goods as this was not made known to the 1st respondent through the issuance of the non-negotiable report of findings.

The endorsement of the clean report of findings shows the description of goods to be 3000 cartons of merry non-alcoholic grape juice, the Free on Board value to be USD7,800 and the CFR value to be USD 12,000. This document is presumed to be correct and the import duty report which is issued for the purpose of custom duty in Nigeria must conform with this. In the instant appeal it is my belief that the import duty report which was issued, which endorsement is at variance with the endorsement on the clean report of findings, was done in bad faith and so I hold.

On the price upliftment, it is my firm view that upliftment of the price was done without justification. Having accepted the price as highlighted on the proforma invoice number 12 of 14th November 1997 which is endorsed on the clean report of findings, and uncontroverted evidence of the prevailing exchange rate of N79.54 to 1 U.S. dollar, the appellant was wrong when it unilaterally uplifted the price of the goods.

On the whole I resolve this issue in favour of the 1st respondent and hold that the appellant was negligent in the execution of its duty in the inspection of the 1st respondent’s goods and the issuance of exhibit 10.

The 3rd issue which is formulated by the appellant reads thus:

“Whether or not the respondent ought to mitigate damages and whether damages awarded were proved. This issue covers grounds 4, 9, 14, 18, 19 and 21 of the amended grounds of appeal.”

On this issue, Abiodun Esq., of counsel submits that the 1st respondent did not take reasonable steps to mitigate the loss it suffered, According to him others who were issued import duty report similar to exhibit 10 did not complain. The 1st respondent’s complaint and failure to pay the duty before the complaint in line with section 140C of the Customs and Excise Management Act. Cap, 84 Laws of the Federation of Nigeria 1990 was one of the reasons the 1st respondent suffered the loss, Mr. Abiodun further submits.

After this, Mr. Abiodun went into hypothesis of how the 1st respondent finally paid demurrage and port charges of N1,834,656.19 instead of N1,693,446.00 on exhibit 10. Continuing his argument, Mr. Abiodun submits that the 1st respondent claimed N1,348,467.70 representing the total sum paid as demurrage, what would have been the bill for clearance if the goods were cleared in time, learned counsel queried.

Again learned counsel says exhibit 16 a WASA DELMAS document, shows that the money paid for demurrage was by Automotive Connectives Limited and not the 1st respondent, and that the breakdown of the money paid on exhibit 16 showed that the sum of N1,348,467.70 may not be for demurrage only as there were several items on it. According to him, even if the goods were cleared early, some of the items would still be paid for. He listed these items as payment for container under SLTC N20,100.00. Terminal handling charges, charges for documentation, container clearing and commission on turnover and VAT.

Learned counsel also found fault with the award of N486,188.49 for port charges because other charges that would have still been paid had the goods been cleared early were not taken into account. These he said were shoreline charges, terminal delivery, customs examination unstuffling, direct delivery and VAT charges.

Also challenged by Abiodun Esq. is the award of N3,552,000.00 as damages for loss of profit. This learned counsel submits was without justification. According to him, the fruit juice was ordered to satisfy exhibit 15 dated 23rd of February 1998. The order for the juice was made via exhibit 8. Form M in 1997 and not 1998. The demurrage was claimed from 17th February, 1998 when the goods had arrived. It therefore follows that the fruit juice was not ordered to satisfy the LPO placed by A. S. SAAB Nig. Ltd. as claimed in paragraph 16(b) of the 2nd further amended statement of claim.

Arguing further, Mr. Abiodun took the court through the method the award was arrived at, that is deducting N948, 000.00 which was the value of the goods from N4,500,000.00 being the expected earning from the 3000 cartons of the juice and the difference of N3,553,000.00 was awarded to the 1st respondent without taking into account port charges, handling charges and other incidental expenses like evacuating the goods from the Port. In aid of this submission, learned counsel cited the authority in Boshali v. Allied Commercial Exporters Ltd. (1961) 1 All NLR (Pt. IV) 917 at 920 para. 2, (1961) 2 SCNLR 322.

On the award of N10,000.00 general damages that was awarded to the 1st respondent, Mr. Abiodun submits that this award for transport cost to and from Abuja could have been claimed as special damages and not a general one.

Finally, Mr. Abiodun asked the court to resolve this issue in favour of the appellant. In reply to issue number 3, Vincent Chieyeni, learned counsel for the 1st respondent treated the issues which were raised by the appellant’s counsel in the order in which they were raised.

On whether the 1st respondent took reasonable steps to mitigate the loss it suffered, Mr. Chieyeni submits that the 1st respondent had taken steps to mitigate the loss. According to him after the 1st defendant discovered the anomaly on exhibit 10, it protested and by exhibit 13 the appellant admitted its error and apologized. After apology the appellant promised to correct the error and it never did. In a further argument Mr. Chieyeni submits that the delay on the release of the goods was occasioned by the appellant and not on the 1st respondent.

On the payment of duty before resorting to court action, Mr. Chieyeni submits that this is a total misconception of the 1st respondent’s claim. According to the learned counsel, the 1st respondent’s action is not only on inflation of duty to be paid, but among others on the misrepresentation of the cargo as “other waters containing sweetners/flavouring” instead of non-alcoholic juice, and that S. 140 of the Customs and Excise Management Act Cap. 84 Laws of the Federation of Nigeria 1990 referred to by the appellant in its brief is a limitation period for claims of over payments made to Nigeria custom and excise and not a defence for the negligence of the defendants.

On the issue of joinder of the Nigeria customs service, Mr. Chieyeni submits that this was never canvassed at the lower court as it was not pleaded. In aid, he cited Okeke v. Aondoakaa (2000) 9 NWLR (Pt. 673) 501 ratio 3 to buttress the contention that parties are bound by their pleadings.

On prove of special damages, Mr. Chieyeni submits that the 1st respondent had specifically pleaded demurrage of N1,348,467.70 to WASA DELMAS Nigeria Ltd. and the Nigerian Ports Plc. Charges of N486,188.49. In a further argument, learned counsel submits that the plaintiff also pleaded loss of profit of N3,552,000.00 in paragraphs 16(6) and (7),17,22(9) and (10), 23(4) of the amended statement of claim.

In continuation of his submission on special damages learned counsel says not only were the damages pleaded but evidence was also led in proof of the special damages and the facts set out in the paragraphs aforementioned were never controverted or challenged by the appellant. In support of this submission learned counsel cited the following authorities: Okeke v. Aondoakaa (2000) 9 NWLR (Pt. 673) 501; Iriri v. Erhurhobara (1991) 2 NWLR (Pt. 173) 252; Boshali v. Allied Commercial Exporter Ltd. (1961) 2 SCNLR 322; Odulaja v. Haddad (1973) II SC 357; Obembe v. Wemabod Estates Ltd. (1977) 5 SC 115. Mr. Chieyeni further submits that if the clearance of goods were not delayed as a result of the issuance of exhibit 10, the 1st respondent would have paid the sum of N633,192.90 only, comprising of N521,400 import duty and N111,792.90 handling charges.

On the loss of profit of N3,552,000.00 Mr. Chieyeni submits that the appellant did not deny this claim in its defence and none of the witnesses challenged or contradicted the same during their evidence as such it is therefore deemed to have been admitted. On this he referred the court to the authority of Saipem SPA v. India Tefa (2002) 16 NWLR (Pt.793) 410, (2001) FWLR 377, where he said this court ruled thus:

“Where the plaintiff’s testimony is on the damages he has suffered by way of loss of profit and such claim is absolutely uncontroverted neither by cross-examination nor evidence in rebuttal, he is entitled to that head claim under loss profit.”

On how the loss of N3.55 million was arrived at, Mr. Chieyeni submits that the 1st respondent showed on exhibits 15 and 15A that he imported 3000 cartons of fruit juice at the cost of N1,500.00 per carton. He then multiplied N 1,500.00 by 3000 and the result is N4.5 million. He further deducted the sum of N948,000.00 being the cost of the goods and the balance being N3.55 million and this, Mr. Chieyeni says is the loss profit which was awarded by the lower court.

On the award of N10.000.00 as general damages Mr. Chieyeni submits that the award is grossly inadequate considering the traumatic experience which his client went through. He recounted the traumatic experience as, the trouble and expenses suffered by the plaintiff from 17th February, 1998 when the goods arrived Nigerian Port to 11th November, 1998 when the goods were actually discharged, 17th February, 1998 to 30th January, 2001 when the judgment was delivered, refusal of the customs service to release its goods which brought its business to a halt, the appellant’s failure to effect correction and the bank charges it had to contend with.

In the reply brief of the 1st respondent, Mr. Vincent Chieyeni, while arguing on points of law pointed out that the Customs and Excise Tariff etc. (Consolidation Amendment) Decree No. 20 of 1998 specifically amended HS Code 2201.1000 and 2202.9000 which apply to other waters containing sweeteners and flavouring and increased the duty payable there to 100%, and all the HS Code amended are listed in the said Decree, Decree No. 20 1998 never amended HS Code 2009.6000.

Mr. S. S. Liman, learned counsel for the 2nd respondent in his argument agreed that clean report of findings and the import duty report must be issued simultaneously and that the plaintiff failed to prove negligence. He further submits that all the heads of claim were special damages and that the 1st respondent did not prove any of them strictly. On the assessment of damages, the court below did not take into account handling charges and there was no evidence on how much the 1st respondent realized on the goods after clearance and all the items that must be excluded before arriving at the net profit were never proved in evidence or considered in the judgment. Finally Liman Esq. of counsel asked the court to set aside the claim for special damages.

On the issue of special damages, this is what the court below said at page 328 of the record:

“The description and classification of the grape juice in exhibit 10 appears to me to have been recklessly made and the plaintiff having suffered injuries as a result thereof is entitled to damages and I so hold. The damages claimed in sub-paragraphs 4(a)(b) and (d) of paragraph 23 of the further amended statement of claim are compensatory damages. The damages are the natural result of the 1st defendant’s wrongful description and classification of the grape juice. The damages are approximately caused by the wrongful description and classification of the grape juice. I hold that the special damages have been strictly proved as required by law. The plaintiff is entitled to be compensated for the expenses on demurrage, Port charges and for loss of profit of N3, 552,000.00…”

It was on the basis of this ruling the court proceeded to make the following orders:

“3. The sum of N1,834,556.19 is hereby awarded to the plaintiff as compensation for the expenses on demurrage and Port charges. While the sum of N3,552,000.00 is awarded to the plaintiff as damages for loss of profit.

Total special damages N5,386,556.19.

4. The sum of N10,000.00 is awarded to the plaintiff as general damages.”

Generally an appellate court has no business in disturbing an award of damages made by the trial court, except where it is shown that, that court proceeded on a wrong principle of law. In U.B.A. Plc. v. Ogunsanya (2003) 8 NWLR (Pt. 821) 11 this court held at page 128 as follows:

“Before an appellate court can temper with an award of damages made by the trial court, it must be clearly shown that the trial court in assessing the damages proceeded upon a wrong principle or on no principle of law as a result of which he made an award which is manifestly unwarranted, excessive, extravagant and unreasonable in comparison with the loss suffered by the plaintiff in the case …”

See also Garba v. Kur (2003) 11 NWLR (Pt. 831) 280 at 299 paras. C – F; Shell Petroleum Development Co. Ltd. v. Tiebo VII (1996) 4 NWLR (Pt.445) 657.

In a claim of damages, the onus of proving such damages is on the claimant, and he can only discharge this burden by showing credible evidence that he is indeed entitled to such damages claimed.

In the case of Garba v. Kur (supra) at page 295, this court set out the guiding principle governing award of special damages in the following words:

“An award of special damages, unlike an award of general damages, is not based on the discretion of the trial court, but on credible evidence adduced before the trial court which strictly proves the plaintiff’s entitlement to the award …”

In the instant appeal, the court below awarded the following special damages to the 1st respondent as follows:

1. N1,348,467.70 as demurrage.
2. N486,188.49 as Port charges.
3. N3,552,000.00 as loss of profit.

Were these damages strictly proved by the 1st respondent as required by law? Special damages must be specially claimed and proved strictly. This proof is not subject to the claim being controverted or challenged.

Exhibit 16 which the court below relied upon in award of N1,348,467.70 contains payments for SLTC, demurrage, documentation and others. For SLTC, the sum of N20,100.00 was paid, for demurrage N1, 167,000.00 was paid. For documentation N64, 155.00 was paid and others took N97,212.70. There was no evidence before the lower court by the 1st respondent on the other claims. What the 1st respondent claimed as special damages were those expenses he incurred on demurrage and from the evidence before the court as per exhibit 16 is N1,167,000.00.

The award by the court is not supported by evidence and it is manifestly unreasonable in comparison with the loss suffered by the 1st respondent. To this end, I find it necessary to interfere here because I am of the view that the lower court proceeded on a wrong premise in the award of this head of the damages. There is evidence on record that the 1st respondent paid N1,167,000.00 as demurrage as a result of the non-clearance of the goods due to the negligence of the appellant. I find this proved and the 1st respondent is entitled to N1,167,000 as special damages.

On the award of damages for Port charges, the 1st respondent claimed that he was paying N1,500.00 everyday as Port charges from 17th February 1998 till the date of clearance of the goods which is 11th November 1998. The court below found the amount to be N486,188.49. Certainly this cannot be the amount contemplated by the 1st respondent. If the 1st respondent paid N1,500.00 per day between 17th February 1998 to 11th November 1998. The number of days would be 268 and this multiplied by N1,500 will give N402,000 and the 1st respondent is entitled to and no more as the appellant did not challenge this claim effectively.

On the award of N3,552,000.00 there is clear evidence that the 1st respondent finally cleared the goods on the 11th of November 1998. No evidence was given as to what happened to the goods.

Were the goods destroyed or they were sold? If they were sold how much did the 1st respondent realize from each carton of the non-alcoholic grape juice? Whatever was realized from each carton would have been deducted from the price of N1,500.00 in order to ascertain the loss margin. The lower court neither took this process into account nor did it take into account the cost of clearing and transportation of the goods to their destination. The lack of evidence on what happened to the goods is fatal to the claim of the 1st respondent. Even though the contract of supply of the goods was revoked, the goods were not confiscated and sold by any authority other than the 1st respondent. The award N3,552,000.00 to the 1st respondent would amount to double compensation!

In U.B.A. Plc. v. Ogunsanya (supra) at page 128 this court defined what ‘strict proof of special damages’ is in the following words:

“What amounts to strict proof would depend on the facts of each case and the character of the acts which produce the damage as well as the circumstances under which the acts were done. But generally the strict proof required in special damages means no more than that the evidence led must clearly show the same particularity as is necessary to support the pleadings. The evidence led must clearly consist of the particular loss. The term therefore does not mean an unusual proof, but simply implies that the plaintiff who had the advantage of being able to base his claim upon a specified calculation must give the court the precise facts which make such calculation possible…”

I am therefore of the view that the award of N3.55 million as loss of profit was without basis as same was not proved by the respondent.

On the issue of mitigation of damages by the 1st respondent, I have discussed the issue else where in this judgment that the 1st respondent was challenging the negligent act of the appellant and so it was not in its contemplation that the import duty report will not be corrected as was promised by the appellant. It was therefore not within his contemplation also to pay the amount reflected on the import duty report as he would be paying for products which it did not import.

If other importers who were issued the same import duty report did not complain because they decided to waive their rights, the 1st respondent cannot be tied to their action. Furthermore, the other importers were not called as witnesses to state their reasons for failure to complain.

The fact that the respondent and its bank protested clearly shows that the respondent was not satisfied with the reclassification of its goods. At this stage the appellant would have acted as promised, that is by correcting the entry on exhibit 10. Its failure to do so has occasioned some loss to the respondent for which the appellant must be held accountable.

This therefore brings me to the award of ten thousand naira (N10,000.00) general damages.

The lower court, after defining general damages as the natural, necessary and usual result of the wrongful act of the defendant went ahead to examine exhibits 20, 20A and 20B which were air tickets and bus ticket all representing the evidence of PW1 that he travelled to Abuja several times in his effort to get the 1st respondent’s goods released. The amount shown on exhibits 20, 20A and 20B all amounted to N8,750.00. However the lower court concluded that this sum was not claimed as special damages and that the expenses of transportation in this case are consequential expenses to which the plaintiff is entitled under general damages. The lower court then proceeded to award the sum of N10,000.00 to the 1st respondent as general damages.

Special damages are damages or losses that are ascertainable and their value known. They are the type which the law will not infer from the nature of the act and they are not the type that will normally follow in the ordinary course of events. The law therefore requires they must be claimed specially and proved strictly. The amount of money that is set out on exhibits 20, 20A, 20B were not claimed by the 1st respondent. Their particulars are known and documented. I am of the firm view that this type of claim is within the ambit of special damages which the 1st respondent did not claim at the lower court. The lower court was therefore wrong to have awarded the N10,000.00 which the 1st respondent did not claim.

In the result, the appeal in respect of the award of damages succeeds only in regard to the award of special damages which I vary as follows:

1. The sum of N1,167,000.00 only is awarded to the 1st respondent as compensation which he incurred on demurrage; and
2. N402,000.00 is also awarded as compensation for Port charges.

I set aside the award of N3,552,000.00 and N10,000.00 because these classes of special damages were not proved.

Issue number four reads as follows:

“Whether or not the respondent could be said to have proved its case before the lower court.”

This issue clearly calls for assessment and evaluation of evidence before the trial court. An appellate court has no jurisdiction to interfere with the assessment and evaluation of evidence of a trial court in the absence of special circumstances warranting such interference. See: Eki v. Giwa (1977) 11 NSCC 96, (1977) 2 SC 131: Fashanu v. Adekoya (1974) 1 All NLR (Pt. 1) 35 and Balogun V. Labiran (1988) 3 NWLR (Pt.80) pg 66, (1988) 19 NSCC (Pt. 1) 1056.

However, I have found in the brief of argument of the appellant, one issue that has been overflogged and that is other importers who were issued the same import duty report as that which was issued to the 1st respondent did not complain and found the appellant’s explanation in its report easy to accept. This argument is of no consequence. If other importers who were issued the same import duty report, chose to waive their lights of complaint, that will not constitute a bar to whoever wanted to complain. The importers who did not complain were not called as witnesses to give evidence of their satisfaction with the appellant’s explanation. So many decided to leave things as they are, perhaps they did not want to go through the rigours of litigation.

This issue is resolved in favour of the 1st respondent also as same has received my attention in the previous issues I have treated in this appeal.

The 1st respondent cross appealed against the decision of the lower court. The notice of appeal is dated 24th day of September 2001. Three grounds of appeal were filed. These grounds, without their particulars read as follows:

“1. The learned trial Judge erred in law in refusing to award interest as special damages to the plaintiff.

2. The learned trial Judge misdirected himself in fact when he held that the plaintiff is not entitled to N2,189,830.00 which is 21% compound interest on N948,000.00 borrowed from Chartered Bank.
3. The N10,000.00 general damages awarded by the trial court is against the weight of evidence”

From these grounds of appeal, two issues were distilled and they read:

“‘1. Whether or not the trial court was right in refusing to award interest to the plaintiff not-withstanding the overwhelming evidence before it.

2. Whether or not the N10,000.00 awarded by the trial court as general damages to the plaintiff was adequate considering the facts, evidence and circumstance of the case before it.

The appellant who for the purpose of this cross appeal I will refer to as cross respondent also formulated two issues for the determination of the cross appeal. These issues read as follows:

“1. Whether or not the plaintiff proved its claim for interest as special damages to the satisfaction of the trial court?

2. Whether or not this Honourable court should interfere with the award of general damages by the lower court?

The 2nd respondent, who I will refer to as the 2nd cross respondent is represented by, S. S. Liman Esq. of counsel. In its brief of argument, two issues have been formulated for the purpose of determining this cross appeal. These are:

“1. Was the interest claimed by the plaintiff proved?

2. Whether or not the lower court was right in the award of general damages.

The issues formulated by the 1st cross respondent and 2nd cross respondent are similar with the issues formulated by the cross appellant; I will therefore adopt the issues formulated by the cross appellant for the purpose of this cross appeal.

The first issue is that the trial Judge erred in law in refusing to award special interest as special damages to the cross appellant.

At page 328 of the record, the learned trial Judge held:

“The claim of N2,189,830.00 as the accumulated bank interest on the loan of N958, 000.00 has not been strictly proved as required by law. There is evidence which I accept that the plaintiff was granted import facility to finance the importation of the merry non-alcoholic grape juice. See exhibit 9. There is also evidence which I accept to the effect that the plaintiff paid as the Cost Insurance Freight value of the goods the sum of N948,000.00. The rate of interest on the loan stated in exhibit 9 is 21% per annum. The interest on the loan per annum at the rate of 21% should be N198,080.00. The plaintiff has however claimed the sum of N2,189,830.00. The sum of N2,189,830.00 has not been proved strictly as required by law.”

It is not the business of this court to interfere with the award of damages by the lower court. However, this court can only interfere with such an exercise if the lower court proceeded on the wrong principle of law.

The claim of the cross appellant was that the loan facility was granted to it at the interest rate of 25%. This is the averment contained at paragraph 16(4) of the further amended statement of claim dated 6th of September 2000 and it reads:

“The capital with which the plaintiff used in financing the importation of the said cargo was borrowed from Chartered Bank at the interest rate of 25% per month which continued to accumulate interest.”

However the court below found that the interest rate on the loan facility was 21% and that even that interest was not proved by the cross appellant.

Exhibit 9 is an offer which was addressed to the managing director of the cross appellant. There is no evidence that the money was signed and collected by the cross appellant. Exhibit 9 ended with the following:

“Please note that although the facility is granted to expire at a specific period, the bank in accordance with normal banking practice, reserves the right to recall the facility or to cancel and/or alter the terms and conditions under which the facility is granted at its discretion if circumstances warrant such a line of action.”

Clearly this document here is not evidence that the cross appellant took loan to facilitate the importation of the merry non-alcoholic grape juice. There being no evidence that the cross appellant took loan it cannot claim interest on non existing loan. I am satisfied that the court below was right in refusing to award the interest which the cross appellant claimed. The only document which the cross appellant tendered to show that he took loan from Chartered Bank is exhibit 9. No one was called as a witness from Chartered Bank. The cross appellant claimed interest from 10/10/97 – 11/11/98.

The goods imported by the cross appellant arrived Nigeria on the 17/2/98 and that was when the problem started. Mr. Chieyeni admitted at page 25 paragraph 2 of the cross appellant’s brief of argument that the cross appellant’s money was tied down between 17/2/98 when the goods arrived and 11/11/98 when the goods were cleared. Why then was the demand for interest back dated to 10/12/97?

The cross appellant clearly did not prove the interest it is claiming and so I resolve this issue in favour of the 1st and 2nd cross respondent.

On issue 2 which reads:

“Whether or not the N10,000 awarded by the trial court as general damages to the plaintiff was adequate considering the facts, evidence and circumstance of the case before it.”

On this issue Mr. Vincent Chieyeni Esq. of counsel for the cross appellant submits that the cross appellant went through psychological, traumatic experience, trouble and expenses from the 18/2/98 when the goods arrived in the Nigerian Port up to 11/11/98 when the goods were discharged. Learned counsel also referred to the fact that the cross appellant was always in court, and the bank interest which the cross appellant had to contend with and finally submit that these were enough to move the lower court to award to the cross appellant. N5,000,000 which was claimed.

In aid of his submission, learned counsel cited Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623 ratio 14 and West African Shipping Agecy (Nig.) Ltd. v. Kalla (1978) 3 SC 21.

In reply Mr, Abiodun, learned counsel for the 1st respondent submits that it would be wrong for the trial court to award as general damages what should have been considered under an award of special damages in aid he cites Comet Shipping Agencies (Nig.) Lid. v. Babbit (Nig,) Ltd, (2001) 7 NWLR (Pt. 712) 442 at 454 paras. C- E.

The N10,000 award of general damages was wrong. The amount on the flight and bus tickets was ascertainable.

Once the amount claimed is ascertainable, the claim ceases to be in the class of general damages. See Union Bank of Nigeria Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt. 421) at 586 where the Supreme Court said:

“The award of general damages is improper where the quantum of loss is ascertainable.”

The court below found the total amount on exhibits 20, 20A and 20B to be N8,750.00 it converted this to be general damages and in its final ruling on this it awarded N10,000,00. Since the amount reflected on exhibits 20, 20A and 20B were special damages, they ought to have been claimed and proved strictly. The cross appellant did not reflect this on its claims at the lower court. The award therefore was without basis and so I hold.

On the whole, the appeal partially succeeds, the cross appeal is hereby dismissed. Each party shall bear its own costs,

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Other Citations: (2006)LCN/1905(CA)