PAUL OKOYE & ANOR. V. BARTHOLOMEW OKONKWO & ANOR.
(2016)LCN/8459(CA)
In The Court of Appeal of Nigeria
On Monday, the 3rd day of April, 2006
CA/E/107/2001
RATIO
JURISDICTION; WHEN CAN THE ISSUE OF JURISDICTION BE RAISED IN PROCEEDINGS
It is trite law that jurisdiction is fundamental to every adjudication and it can be raised at any stage of the proceedings even on appeal. PER SULEIMAN GALADIMA, J.C.A.
PLEADINGS: WHAT SHOULD CONSTITUTE PLEADINGS
It is trite that only material facts shall be pleaded and not evidence by which such facts are to be proved at the hearing. See AJA v. ALAO (1996) 5 NWLR (pt.45) 802 and OKAGBUE v. ROMANIE (1982) (Supra). PER SULEIMAN GALADIMA, J.C.A.
PLEADINGS: AT WHAT STAGE OF PROCEEDINGS CAN PLEADINGS BE AMENDED
Amendment of the pleadings can be made at any stage of the proceedings before judgment in line with evidence that has been adduced in the course of proceedings: See OGUNTIMEHIN V. GUBERE (1964) N.M.L.R. page 55. PER SULEIMAN GALADIMA, J.C.A.
COMMERCIAL LAW: BAILMENT; WHAT SHOULD COURTS CONSIDER IN ASSESSING DAMAGES
Section 865 2(a) and (b) of the Contract Law, Anambra State (supra) imposes a duty on the bailee to redeliver the chattels to the owner at the time or in the circumstances agreed by the parties. Where the chattel is lost, the bailee shall be liable to the owner for such loss or damage. Liability is for the current value of the chattel and liability for loss of use or earning of the chattel is in respect of the period of failure to deliver.
In assessing the damages, where there is a market for that description of goods at such place, the damages are the market value of the goods there at the time when the goods ought to have been delivered. Loss of profit shall not be recovered unless the circumstances are brought to the knowledge of the carrier at or before the date of the contract. See Ss 920(b) and 923 Contract Law, Anambra State (Supra). PER SULEIMAN GALADIMA, J.C.A.
JUSTICES
JAMES OGENYI OGEBE Justice of The Court of Appeal of Nigeria
SULEIMAN GALADIMA Justice of The Court of Appeal of Nigeria
JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
Between
1. PAUL OKOYE
2. NWUWA EJI Appellant(s)
AND
1. BARTHOLOMEW OKONKWO
2. JOHN NNANYELUGO Respondent(s)
SULEIMAN GALADIMA, J.C.A. (Delivering the Leading Judgment): The “Appellants” who were the defendants have appealed against the judgment of the High Court of Onitsha Judicial Division of Anambra State presided over by Hon. Justice K.K. Keazor delivered on 3/4/2000, entering judgment in favour of the plaintiffs hereinafter referred to “the Respondents”
In their amended Statement of Claim, the respondents as plaintiffs claimed against the defendants jointly and severally as follows:
“The return of 300 bundles of ‘Swan” roofing sheets delivered to them in Lagos for delivery at the defendants’ office in Onitsha OR IN THE ALTERNATIVE
(b) The sum of N1.5 million being the value and loss of profit on hundred bundles of “SWAN” roofing sheets at N5,000.00 per bundle.
(c) The sum of N1,500 being refund of deposit paid to the 2nd Defendant.”
In reply the defendants filed a Statement of Defence, which the defendants amended, denying the claims of the plaintiffs as they are not tenable in law. The matter proceeded on trial. 1st Respondent testified as PW1. Defence also called two witnesses. At the end of the trial learned trial Judge entered judgment against the defendants jointly and severally and held them liable to pay the plaintiffs the sum ofNI.5 million being the value and loss of profit on 300 bundles of “SWAN” roofing sheets, or in the alternative return to the plaintiffs 300 bundles of “Swan brand of roofing sheets.
Being dissatisfied with the said decision the defendants filed a Notice of Appeal, which contains EIGHT Grounds of Appeal. All the parties thereafter filed their briefs of argument. The Appellants’ brief deemed filed on 12/2/2005, distilled FIVE issues from the grounds of appeal for the determination. The issues are in the following terms:
1. “WHETHER THE COURT WAS RIGHT TO HAVE AWARDED THE SUM OF N1.5 MILLION WHEN ON THE EVIDENCE ADDUCED THE RESPONDENTS DID NOT DISCHARGE THE ONUS OF PROOF.
2. WHETHER THE TRIAL COURT WAS RIGHT IN FINDING THE APPELLANTS NEGLIGENT.
3 WHETHER THE TRIAL COURT WAS RIGHT IN REFUSING THE PLEA OF FRUSTRATION AS PLEADED AND PROVED BY THE APPELLANTS.
4. WHETHER THE TRIAL COURT HAD TERRITORIAL JURISDICTION.
5. WHETHER THERE WAS PRIVITY OF CONTRACT BETWEEN THE PLAINTIFFS AND 2ND DEFENDANT.”
The FIVE issues submitted on behalf of the Respondents by their counsel arising for determination in the brief of argument are as follows.
“ISSUE NO.1
Whether the trial judge was not right in holding on the pleading and on the evidence adduced at the trial, and by the Interpretation of Order 4 Rule 3 of the Anambra State high Court Civil procedure Rules 1998, that he had jurisdiction to hear and determine the case at the high Court of justice Onitsha.
ISSUE NO.2
Whether the award of N1.2 Million representing the value of the respondents’ goods, and loss of profit thereof was not rightly made.
ISSUE NO.3
Whether in a contract of Bailment (as in the instant case) Respondents are required to plead or prove negligence.
ISSUE NO.4
Whether it shall be necessary for respondents to establish Privity of contract with the 2nd appellant (or even the 1st appellant) before the respondents can sue.
ISSUE NO. 5
Whether the evidence and admissions of appellants particularly DW1, (driver of the said vehicle) as to the cause of loss of respondents’ goods constitute in law defense of frustration or act of GOD within the con of Section 907 (1) and 909 of Anambra State Contract Law cap, 30, Revised laws of Anambra State, 1986.”
Before I consider the issues raised by the parties, which call for our determination, I shall briefly set out the facts of this case, which are straightforward and are more or less agreed by the parties. 1st Appellant was the owner of the vehicle with Registration No. LA 8158 WB while the 2nd Appellant was the driver of the said vehicle in which the respondents’ 300 bundles of “SWAN” brand roofing sheets were loaded for carriage to Onitsha in Anambra State on 9/4/92. Up till 3/4/2000 when the lower court delivered its judgment the goods had not been delivered to the Respondents. Appellants admitted that the contract was made in Lagos, outside the jurisdiction of the Court below. It is also the argument of the appellants that the respondents’ goods were lost to thieves at Umunede en-route Onitsha and pleaded defence of the “act of God,” and as such the contract was frustrated.
My careful reading of the five issues each party has formulated in their respective brief show that the issues formulated by the Respondents set out above provide the main issues in this appeal.
The first issue in the Respondents’ brief is whether the trial Judge was right in holding that on the pleading and on the evidence adduced at the trial and by interpretation of Order 4 Rule 3 of the Anambra State High Court Civil Procedure Rules, 1998, he had jurisdiction to hear and determine the case. This also forms the basis for the appellants’ fourth issue. Placing reliance on Order 4 Rule 3 of the Anambra State High Court Rules, learned counsel for the Appellants has submitted that although the contract was for delivery of 300 bundle of “Swan” brand roofing sheets to Onitsha, yet the learned trial judge erred in law to have assumed jurisdiction, because the proper and necessary parties to the action would be those in Lagos, Lagos State, with whom the 2nd Appellant negotiated for the carriage of the goods. That none of the Appellants lived in Onitsha both lived in Abakaliki. The question of territorial jurisdiction does not therefore arise.
Order 4 Rule 3 of Anambra State High Court Civil Procedure Rules 1988 which the Appellant set down in their issue No.4 provides as follows:
“All suits for the specific performance, or upon the breach of any contract may be commenced and determined in the judicial division in which such contract was made or ought to have been performed, or in which the defendants reside.”
(underlining for emphasis).
The Appellants, no doubt, admitted that this rule confers jurisdiction on the lower court, when they stated as follows:
“The High Court Onitsha had necessary territorial competence to try the matter… ”
At page 28 lines 17 and 18 and page 31 lines 8-11 of the record, Appellants through DW1 and DW2, admitted that the goods were loaded for carriage to Onitsha. DW1 who described the 1st Respondent as his master, testified as follows:
“He (1st Respondent) gave me 300 bundles zinc roofing sheets. ”
DW2 who told the lower court that he is a transporter in his testimony stated on page 31, lines 8-11 of the record:
“I know the 2nd defendant (2nd Respondent). On 9/4/92, 2nd defendant came to Iddo motor park. We asked him to carry a load of zinc sheets to Onitsha. The Load was 300 bundles of swan zinc sheets. He came with one Mr. Nwanne from Awka North. He agreed to convey the load … ”
It is trite law that jurisdiction is fundamental to every adjudication and it can be raised at any stage of the proceedings even on appeal.
I agree with the learned counsel for the Respondents that reference made by the learned trial judge to Order 4 Rule 5 in his judgment was merely in the alternative. He firmly held that the contract which was to be executed at Onitsha gave the court territorial jurisdiction; and that even if this were not so, provisions of Order 4 Rule 5 would apply and the Appellants would still be estopped from complaining at the stage of address when they did not plead specifically an objection to the place of trial before or at the time the suit was set down for trial. With due respect this reference to the said Order 4 rule 5 did not form the basis of the assumption of jurisdiction by the learned trial judge.
The second issue raised in the Respondent’s brief is more or less the Appellant’s complaint in their first issue. It is whether the award of N 1.5million representing the value of the respondents’ goods and loss of profit thereof was not rightly made. In other words whether the lower court was right to have awarded the sum of N1.5 million based on the evidence before it. The learned counsel for the Appellant has submitted that the evidence of PW1 that the value of zinc sheet would have “been sold for N5,000 at Onitsha” at the expected time of its arrival, but that this material fact was not pleaded contrary to Order 9 Rule 4 of the High Court Civil Procedure Rules, 1988 of Anambra State. It is argued that these facts, which were not pleaded, go to no issue. It is further submitted that on 26/1/2000 the Respondents applied to amend their Statement of Claim by deleting “current price” and substituting “value and loss of profit”. It is argued that this amendment was effected after the respondents have closed their case and PW1 was not recalled to testify. It is also submitted that the claim for loss of profit is a claim in special damages and that it should be clearly stated in the pleadings so that the Appellants would not be caught unawares. Reliance was placed on the case of IMANA v. ROBINSON (1979) 3 & 4 S.C. INCA (NIC.) LTD. v. ADEGBOYE (1988) 2 NWLR (pt.8) 453.
Learned counsel for the Respondents has submitted that the amendment set out above is a sufficient pleading. It is the contention of the Respondents that the amendment being complained about by the Appellants were evidence and not material facts, which ought to have been pleaded.
Reference was made to the case of OKAGBUE V. ROMANIE (1982) 5 S.C, 133 at pp. 154-155.
In paragraph 9(b) of the amended Statement of Claim, the amendment complained of was in respect of the sum of N1.5 million being the value of production of 300 bundles of “Swan” roofing sheets at N5,000 per bundle. At pages 18-20 of the record, in their amended statement of defence, appellants equally made consequential amendment to their statement of defence, but failed to join issue on the fact incorporated in the pleading by reason of the respondents’ amendment.
At page 22 of the printed record, respondents testified that:
“Up till now the goods have not arrived. At the time we expected the zinc sheets to arrive each bundle would have been sold for N5,000 at Onitsha.”
These averments were evidence and not material facts which ought to have been pleaded. The contention of the appellants that the averments ought to have been pleaded has no basis in law. It is trite that only material facts shall be pleaded and not evidence by which such facts are to be proved at the hearing. See AJA v. ALAO (1996) 5 NWLR (pt.45) 802 and OKAGBUE v. ROMANIE (1982) (Supra).
Furthermore, in paragraphs 16 and 17 of their amended Statement of defence, the Appellants deny paragraph 9 of the amended statement of claim. In answer thereto the Appellants averred that the relief sought by the Respondents in paragraph 9(a) is not tenable in law. They stated that at the trial they will urge the Court to dismiss the respondents’ claim with punitive costs. I agree with the learned counsel for the respondents that this answer of the Appellants to the relief sought by the respondents is rather evasive and not proper traverse or denial of the respondents’ claim as required by law. Contrary to their denial PW1 was recalled on 26/1/2000 as shown at page 27 of the record.
Respondents admit that the amendment was made on 26/1/2006 to delete “current profit” and substitute “value and loss of profit” but deny that PW1 was not called to testify. Appellants’ counsel therefore had every opportunity to test the veracity of the witness as to the amended paragraph but he chose not to. The legal effect therefore was for the court below to admit evidence of PW1 as uncontroverted. Appellants, who did not oppose the amendment by the respondents, subsequently opened the case for defence and put their witness as DW1. At page 22 of the record respondents’ PW1 testified as to the value and loss of profit on the goods entrusted to the 2nd appellant as the driver of 1st appellant. The said amendment was consistent with the testimony of the respondents. Amendment of the pleadings can be made at any stage of the proceedings before judgment in line with evidence that has been adduced in the course of proceedings: See OGUNTIMEHIN V. GUBERE (1964) N.M.L.R. page 55.
The nature of the transaction between the parties will determine the measure of damages accruable to respondents herein. Pleadings of the parties in the printed record backed by evidence of PW1, DW1 and DW2 at the trial clearly establish a case of contract of bailment. The learned trial Judge was therefore right when he held that the issue whether the transaction was bailment does not admit of debate. He held further that by virtue of section 897 of the Contract Law of Anambra State Cap. 30 of 1986, the transaction indeed was a special bailment. Once the respondents were able to prove that the Appellants charge or undertake to convey their goods for a fee in a form of a reward for their service they fall squarely with the definition of a “common carrier”. Appellants’ contention was that the value of the goods and loss of profit were not specially pleaded and strictly proved. I do not think so. In their statement of claim, even at the risk of repetition is clearly for the return of 300 bundles of “Swan” brand roofing sheets which the appellants failed to deliver at the Respondents’ office in Onitsha or in the alternative the sum of N1.5 million being the value and loss of profit on the said roofing sheets at N5,000 per bundle. The testimony of PWI who gave the actual costs of the 300 bundles of the roofing sheet put it at N264,000. The expected gain and the loss of profit were not controverted by the appellants in their cross-examination nor did they provide any evidence in rebuttal on the basis that the amount was false or excessive. In a case of measure of damage or special damage what is required is credible evidence. The Court below was therefore right to have accepted the testimony of PW1 when it awarded Nl.5 million.
Section 865 2(a) and (b) of the Contract Law, Anambra State (supra) imposes a duty on the bailee to redeliver the chattels to the owner at the time or in the circumstances agreed by the parties. Where the chattel is lost, the bailee shall be liable to the owner for such loss or damage. Liability is for the current value of the chattel and liability for loss of use or earning of the chattel is in respect of the period of failure to deliver.
In assessing the damages, where there is a market for that description of goods at such place, the damages are the market value of the goods there at the time when the goods ought to have been delivered. Loss of profit shall not be recovered unless the circumstances are brought to the knowledge of the carrier at or before the date of the contract. See Ss 920(b) and 923 Contract Law, Anambra State (Supra).
Appellants have argued in paragraph 3 of their brief that the respondents should have specifically pleaded and proved the market, its location, the market price and cost price percentage or profit percentage. This is not the intendment of the said section 920(b) and Section 923 (supra). It is sufficient if the circumstances of the bailment were known by the appellant, as in the instant case.
The third issue formulated for determinations is whether the 2nd Appellant as common carriers did exercise reasonable care, skill and diligence to avoid the alleged theft of the Respondents’ roofing sheets. It is the contention of the appellants that they have proffered sufficient evidence negating negligence. It was therefore wrong for the trial court to find the appellants liable for negligence when the respondents failed to lead evidence to show that the said appellants were in breach of their duty.
The duty imposed by law of bailment in relation to a common carrier as the 2nd Appellant in the instant appeal, is that of very strict liability. It is trite that there is presumption of negligence on the part of bailee that failed to deliver goods entrusted to his care for a reward as a consideration. But in order to rebut the presumption, the appellants should show to the satisfaction of the court that the loss occurred, not through their fault, carelessness or recklessness; but in spite of all reasonable precautions taken by him in order to ensure the safety of the roofing sheets in question. See I.M.N.L. v. TAWOSE (2004) 11 NWLR (pt.88) p. 272.
In the instant case, the burden was on the Appellants to prove to the satisfaction of the lower court that the loss of the respondents’ goods at Umunede en-route Onitsha, was not due to his carelessness or negligence. I am of the view that the appellants have failed to discharge this burden of proof.
In ODINAKA v. MOGHALU (1992) 4 SCN page 43 at page 52 Supreme Court held thus:
” …. He was aware that it was unsafe to travel on that road in the night because it was common knowledge that robbers were in the habit of attacking vehicles and their passengers. It was fool-hardy and at the same time reckless of him to set out at that time he knew he could not reach Onitsha before dusk. It was negligent of him even after he had set out, to leave a place of safety i.e. Police Station, to go and park on a lonely spot on a road prone to attack and freely used in the night by armed robbers.”
This instant case is in pari materia and can be related to the case of ODINAKA v. MOGHALU (Supra). The finding of the trial court, therefore, to the effect that what happened to the respondents’ goods was not an act of God but an act of dishonesty and negligence is impeccable. The Appellants are liable to the respondents for breach of contract as bailee and in negligence. Appellants did not impress me by stating the steps they took to safeguard the respondent’s goods. In his evidence DW1 said that he arrived Umunede by 9p.m, parked his vehicle and went to eat with the Conductor. On coming out found that the vehicle with the goods were stolen. He reported at Umunede Police Station where DW1 and the Conductor were locked up. Such evidence rather than disprove negligence as required by law further confirms carelessness and negligence of the appellants.
The fourth issue raised by the parties in their brief questions whether it shall be necessary to establish privity of contract with the 2nd appellant (or even the 1st appellant) before the respondents can sue.
Appellants’ pleadings in paragraphs 4-5 of their amended statement of defence, the evidence of DW1 at page 28 lines 15-23 of the record and answers to cross-examination have settled the issue of contractual relationship between the parties. Section 907(2) of Contract Law of Anambra State (supra) States:
“Failure on the part of the common carrier to deliver the goods safely is a breach of duty and it shall not be necessary for the owner of the goods to prove a contract in order to establish liability.”
DW2 and DW3 testified that they negotiated the contract between the plaintiff (PW1) and DW1 (driver of the vehicle) at Lagos. It is trite that agency can be created by agreement whether contractual or not between principal and agent. It can be express or implied. By the acts of DW2 and DW3 and averments in the pleadings, a case of agency has been made out on which the court below relied upon when it held that “even if it is true that the DW1 and PW1 did not have an agreement, DW2 in contracting with PW1 to carry goods of the plaintiffs acted as an agent of the plaintiffs.”
Having held the opinion that the Appellants were negligent, and that the failure of 2nd’ Appellant (a common carrier) to deliver the goods to the respondents constitute a breach of duty to the respondents, I must state clearly once more that this is not the case where the Appellants would plead frustration or act of God as they have done in this fifth issue. This is a clear case of loss of respondents’ goods through theft without reasonable explanation by the Appellants. I cannot see any “intervening event” or “change of circumstances” as contended by the Appellants.
In conclusion I find that this appeal lacks merit and it is accordingly dismissed. I affirm the decision of the lower court. I award costs of N7,500.00 in favour of the Respondents.
JAMES OGENYI OGEBE, J.C.A.: I read in advance the lead judgment of my learned brother Galadima JCA just delivered and I agree entirely with his reasoning and conclusion. The appeal has no merit at all and should not have been brought at all. I also dismiss the appeal with costs as assessed in the lead judgment.
JA’AFARU MIKA’ILU, J.C.A.: I have had the opportunity of reading in draft the lead Judgment just delivered by my learned brother, SULEIMAN GALADIMA JCA. For the same reason I find no merit in this appeal. It is dismissed. I affirm the decision of the lower court. I gave thesame order as to cost as in the lead judgment.
Appearances
Appellants’ Counsel absent.For Appellant
AND
Sir Frank Molokwu, Esq.For Respondent
