ASSOCIATED BUS CO. PLC v. ANYANWU (2020)

ASSOCIATED BUS CO. PLC v. ANYANWU

(2020)LCN/13962(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Monday, February 10, 2020

CA/OW/374/2017

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

ASSOCIATED BUS COMPANY PLC APPELLANT(S)

And

CHIEF AMBROSE ANYANWU (Suing By The Attorney-Nze Lawrence Obilor) RESPONDENT(S)

RATIO

WHETHER OR NOT THE APPEAL COURT CAN INTERFERE WITH THE AWARD OF DAMAGES BY A TRIAL COURT

I do not understand the position of the law to be that an award of damages by a trial Court in an action in which damages are claimed, is sacrosanct. There is every power in an Appellate Court to interfere with an award of damages by a trial Court upon an appeal against the award in question; once a defendant or an appellant shows (i) that the Trial Court or learned trial Judge acted upon some wrong principles of law or (ii) that the amount awarded, was so extremely high or very low or small as to make it an entirely erroneous estimate of the damage to which the plaintiff or respondent, is entitled. See the case of ODUWOLE V. WEST (2010) LPELR-2263(SC) wherein the Supreme Court cited and applied the pronouncement of Iguh, JSC: in the case of Nzeribe V. Dave Engineering Co. Ltd. This case can be found in (1994) LPELR-2141 (SC). Also see the case of GUARDIAN NEWSPAPERS LTD V. AJEH (2011) LPELR-1343(SC) wherein the Supreme Court stated thus: – “… In the words of Adekeye JCA (as she then was):
“A Trial Court has discretion to exercise as to the quantum of damages it would award in a claim for damages… In order to justify reversing the findings of a Trial Court on the question of amount of damages, it will generally be necessary that an Appellate Court should be convinced that:
“(a) The trial Court acted under a mistake of law or upon some wrong principle of law or
(b) The award is arbitrary
(C) The amount awarded is so extremely high or low as to make it, in the judgment of the Appellate Court an entirely erroneous estimate of the damages to which the plaintiff is entitled.
(d) There has been a wrong exercise of discretion in the award or
(e) The Trial Court acted in disregard of principles or
(f) The trial Court acted under misapprehension of fact
(g) The trial Court took into account irrelevant matters or failed to take account of relevant matters.
(h) Injustice will result if the appellate Court does not interfere.” PER LOKULO-SODIPE, J.C.A.

DAMAGES TO BE AWARDED IN CASES OF BREACH OF CONTRACT

The position of the law as it relates to award of damages in a case/claim founded in contract, is in my considered view very settled; and has been so for long. It is that in cases of breach of contract, the damages that would be awarded, are the pecuniary loss that may fairly and reasonably be considered as either arising naturally from the breach itself or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach. To bring out what I am saying more clearly, I consider it pertinent to re-produce the pronouncements of the Supreme Court in some cases dealing with award of damages for breach of contract. Hereunder are the said cases:
1.ARMELS TRANSPORT LTD. V TRANSCO (NIG) LTD (1974) LPELR-557(SC) wherein the Supreme Court stated thus:- “We note that, when dealing with the same principle of law as that raised in this appeal in the EZEANI V. EJIDIKE case (Supra), Brett J.S.C. in delivering the judgment of this Court at page 405 of the report observed thus: “Where, as has happened here, a plaintiff asking for damages begins by setting out specific items of damages and then adds a claim under the heading of general damages for a sum which will bring the total claimed to a round figure, his claim should always be carefully scrutinised both by the defendant and by the Court in order to see whether he is in fact asking to receive compensation more than once for the same cause of action. An instance of this occurred in ONAGA & Ors V. MICHO & Co. (1961) ALL NIGERIA LAW REPORTS p. 324, where this Court held that having awarded damages for his actual loss under various specific headings a plaintiff in an action for breach of contract could not receive any further award under the heading of general damages. The measure of damages in an action in tort is not the same as in an action in contract, but the rule against double compensation remains the same.”
2. KUSFA V. UNITED BAWO CONSTRUCTION CO. LTD (1994) LPELR-1721(SC) wherein the Supreme Court stated thus:.
“The law is that in cases of breach of contract, the damages that would be awarded are the pecuniary loss that may fairly and reasonably be considered as either arising naturally from the breach itself or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach.
The law however, goes on to lay down that in an action for breach of contract a plaintiff who is well compensated under one head of damages for a particular claim cannot also be compensated in respect of the same claim under another head of damages as this will amount to double compensation. See Nigeria Railway Corporation V. Odemuyiwa (1974) 1 ANLR 388 (Reprint); Onaga & Ors V. Micho & Co. (supra) where the award of general damages by the trial Court was set aside by this Court on the ground that by the award of special damages the loss sustained by the plaintiff was adequately taken care of. The law frowns against double compensation whether in contract or tort. …”
On the principles of law reviewed above and having regard to the facts of this appeal, I can find no legal basis whatsoever for the award of general damages made by the trial Court. In my considered view, the Court below is right in setting aside the award of general damages. On the facts, the plaintiff in my respectful view has been adequately compensated by the award of special damages made by the trial Judge. Having been awarded virtually the entire contract sum, I cannot see the necessity for the award of general damages …”
3. G. CHITEX INDUSTRIES LTD V. OCEANIC BANK INTERNATIONAL (NIG) LTD (2005) LPELR-1293(SC) wherein the Supreme Court stated that:.
“In cases of breach of contract a plaintiff is only entitled to damages naturally flowing or resulting from the breach. See… The measure of damages, in such cases of breach of contract, is in the terms of the loss which is reasonably within the contemplation of the parties at the time of contract. See… When considering damages arising from a breach of a Contract there is no room for damages which are merely speculative or sentimental unless these are specifically provided for by the express terms of the contract. See… The appellant’s claim for N3.5 million naira for “loss of credit facilities, goodwill, profits and future prospects”. PER LOKULO-SODIPE, J.C.A.

WHETHER OR NOT THE COURT CAN AWARD DAMAGES FOR THE BREACH OF A CONTRACT WHEN THE INNOCENT PARTY HAS BEEN COMPENSATED FOR THE ITEMS CALIMED AS SPECIAL DAMAGES

Hence, the position of the law that in cases of contract, is that it is wrong for a trial Court to award general damages for the breach of a contract when the innocent party has been fully compensated for the items he has claimed as special damages. See the case of AGU V. GENERAL OIL LTD (2015) LPELR-24613(SC) in which the case of Ijebu-Ode Local Government V. Adedeji Balogun (1991) 1 NWLR (Pt. 166) 136 at 142 was applied. PER LOKULO-SODIPE, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Imo State High Court in Suit No. HOW/563/2012, delivered on 30th May 2017, wherein the Learned Trial Court held for the plaintiff (now Respondent) and granted the reliefs sought, as follows:
a) That the Claimant established by credible cogent and satisfactory evidence that he lost two luggages out of the fourteen luggages in the custody of the Defendant.
b) That the two luggages contained the sums of money and his belonging.
c) That the defendant was in breach of the contract to convey the claimant and his luggages from Lagos to Owerri safely and without any loss;
d) That the claimant is not bound by the exclusionary/exemption clause as contained or printed in Exhibit 1;
e) That no notice or adequate notice of the exemption clause was given to the claimant;
f) That as a result of the loss, the claimant was forced to make alternative arrangements sourcing for fund for the ceremony and his stay with his family in Nigeria;
g) That the claimant suffered pain, agony and was traumatized by the loss of his luggages containing

his valuables;
h) That Exhibit 6, the complaint of the claimant was received by the defendant, and they had no defence for the fundamental breach;
i) That DW1 was not a witness of truth and only came to say what he was asked to say by his employers and, as he claimed, he did not know anything about the claimants Journey on 18/12/2008;
j) That the action of the Defendant in this matter is atrocious and unconscionable having lost two luggages belonging to the claimant, and turned round to avoid liability;
k) That the activities of Defendant’s staff and action towards the claimant on 18/12/2008 left a sour taste. vide the administration of its Lagos terminal;
Having made these findings and bearing in mind that in assessment of damages for breach of contract it is based on Restitution (sic) in intergum and not Restitutio in Opuleritium, this case succeeds.
The claimant is entitled to the reliefs sought as special damages, per Paragraph 9(a)(1) and(11). On damages for breach of contract, I award to the claimant the sum of N5 Million.
The defendant to pay cost assessed at N50,000, in favour of the Claimant.
(See pages

110 to 111 of the Records of Appeal).

The claims of the Respondent (as plaintiff) was founded on breach of contract to deliver goods (luggages) by the Appellant, 2 of which luggages missed in transit from Lagos to Owerri, on 18/12/2008. He claimed special and general damages, as follows:
“i) $16,620 dollars
ii) N150,000
iii) N50 Million, general damages for breach of the contracts (Page 8 of the Record of Appeal).”
The contract to take care of the claimant’s luggage. (page 8 of the Records of Appeal).

Dissatisfied with the decision, the Appellant filed Notice of Appeal on 16/6/2017 and formulated 7 grounds of Appeal (See pages 112 to 117 of the Records).

Appellant filed its brief of argument on 12/3/2018 which was deemed duly filed on 26/6/2018. It filed a Reply Brief on 5/7/2018, upon receipt of the Respondent’s Brief filed on 25/6/18 and deemed duly filed on 26/6/2018.

Appellant had donated 4 issues for the determination of the Appeal, as follows:
(a) Whether the Lower Court was right to have granted reliefs sought, in view of conflict in pleadings, evidence set up by the claimant at the trial.

Grounds 1, 2, and 3.
(c) Whether the Lower Court was right, when it held that the exemption clause in Exhibit 1 did not avail the defendant in this suit. Ground 4
(d) Whether the Lower Court was right to award double or multiple and excessive compensation to the claimant in this suit, Ground 6

It should be noted that Appellant omitted to list the issue (b) when it listed the issues for determination on pages four and five of Appellants Brief, and had numbered the issues as (a) (c) and (d) Appellant, however, disclosed the issue (b) when it argued it together with the issue (a). See page 5 of the Records, where he stated the issue (b) as follows:
(b) Whether the Lower Court was right when it placed the burden of proof on the defendant, instead of the claimant and held that the defendant failed to prove that it was not negligent in this case.

On his part, the Respondent distilled three issues for the determination of the Appeal, namely:
1) Whether the plaintiff proved his case to warrant grant of the reliefs sought? Grounds 1, 2, 3 and 4.
2) Whether the Trial Court rightly found that exemption clause at the back of Exhibit I did

not avail and exculpate the defendant in the suit? Ground 4.
3) Whether the reliefs granted to the Respondent were excessive and amounted to double compensation.”

Arguing the Appeal on 27/1/2020, Counsel for Appellant, Emeka O. Nwagwu Esq., on Issues, (a) and (b) (which he argued together), said that the phrase “burden of proof” is used to describe the duty which lies on one (a party) to establish a case or fact of a particular issue; he said that the burden of proof (or onus of proof) is twofold, thus:
1) The ability of the plaintiff to establish and prove the entire case, or reasonable and prove of his claim, before a Court can give judgment in his favour; or
2) As relates to a particular facts or issues, which a party claims exists; that this burden oscillates from one party to another.

Counsel said that while the first type of burden of proof is called legal burden or burden of establishing a case, the second is called evidential burden. He relied on the case of F.M.F. Ltd V. Ekpo (2004) 2 NWLR (Pt.856) 100, Ogwule Ankpa Agatu Co-Opt. Society Vs Nigeria Agricultural & Co-Opt. Bank (1999) 2 NWLR

(Pt.590) 234. Counsel also relied on Sections 131, 132 and 133 of the Evidence Act, to the effect that, he who alleges has the burden to prove his allegation or assertion.

Counsel said the pleadings and evidence of the plaintiff were not consistent; that whereas in the pleadings, as per the statement of claim, the plaintiff stated that the defendant’s agents insisted that he must weigh and load all the fourteen luggages, including the carryon and bag, and he stated that he surrendered the two of them and paid for all the 14 luggages, including the carryon and bag, in the Reply to the statement of defence, the plaintiff pleaded “that paragraph 5 of the statement of defence is inaccurate. The hand luggage the claimant was forced into handing over to and allowing the defendant’s agent (loaders) to load into the parking hole/boot got missing, as none could be seen upon arriving Owerri.” Counsel added that the cross-examination of the plaintiff on the issue produced another conflicting evidence, suggesting that an agent of the Appellant collected the carryon and bag at the point he was to enter the bus, but that he did not

identify the said agent and did not complain to Appellant until he reached Owerri. He argued that the Respondent did not prove his case; that the trial Court was wrong to hold for Respondent, particularly as he (Plaintiff) failed to produce the tags of the 12 luggages he claimed he received; Appellant said that the Respondent did not prove the loss of the two luggages or any bag.

Counsel relied on Nyamco Plc v. All Motors Nig Plc (2001) All FWLR part 60D 1226 at 1246 to say that a party is expected to be consisted in his evidence and not to change his colour like a chameleon. He also relied on Sokwo V. Kpongbo (2008) 7 NWLR (Pt.1086) 342; Arase Vs Arase (1981) 5 SC 33, Elias V. Omo-Bare (1982)5 SC 25.

On Issue 3, Counsel said the trial Court was not right, when it held that the exemption clause in Exhibit 1 did not avail the Appellant. He referred to Paragraph 7 (f)(g) and 8 and 9 of the statement of defence, which stated that announcement was made at the terminal to the effect that “all accompanied luggages are at owners risk and consequently must be observant, and on arrival Passengers collect their goods with their tags under the watchful

eyes of the staff” Counsel referred us to the exemption clause at the back of Exhibit 1.

Appellant relied on the case of MTN Comm. Ltd v. Amadi (2012) LPELR 21276 CA and said that Appellant had fulfilled all the conditions listed by the Court, i.e. test for exclusion clause and that the clause 6 was incorporated into Exhibit 1. He said that the Respondent arrived Owerri safely with his family and luggage and there was no breach of a fundamental condition in the contract listed in Exhibit 1; Counsel said that Respondent had asserted that he was a frequent user of the Defendant’s Services. He relied on Iwuoha V. Nigeria Railway Corp. (1997) 4 NWLR (Pt. 500) 419 and said that, it was beyond doubt that the Respondent had clear knowledge of the terms and conditions for the journey, as per the Exhibit 1.

On issue 4, whether the Court was right to award double or multiple and excessive compensation to Respondent, Counsel answered, in the negative. He argued that a claim of general damages in contract is generally inappropriate, relying on Eagle Super Pack Nig. Ltd Vs ACB Plc (2006) 19 NWLR (Pt.1013) 20 at 50; that in consideration of the claim

for, as well as in consideration of an award in consequence of breach of contract, the measure of damages is the loss flowing naturally from the breach and incurred indirect consequence of the violation; he said that the damages recoverable are those losses reasonably foreseeable by the parties at the time of the contract, as inevitably arising, if one of them broke the faith with the other; he said that in contemplation of such loss, there can be no room for claims founded on speculation or sentiment.

Counsel argued that, in this case, the Respondent and appellant had agreed that the contents of the alleged two luggages he lost were not declared. Thus, there was no proof of the special damages and the judge cannot make his own individual and arbitrary assessment of special damages, but must act strictly, on the evidence accepted by him as establishing the amount to be awarded. Counsel said, in this case, the claimant could not even prove the loss of luggages with legal evidence, let alone the contents of the two luggages, to justify the basis to hold that he had $16,620 and N150,000 on him. Counsel relied on the Moghalu V. Ude (2001) 1 NWLR (Pt.693) 1 at 13

– 14. He also relied on Oshinjinrin & Ors v. Elias & Ors (1970) 1 All NLR 153 at 156, on the need to prove the heads of claim in special damages, strictly. He relied on other cases, including SBN Plc V. Opanubi (2004) 15 NWLR (Pt. 896) 437 UBN Ltd V. Odusote Bookstores Ltd (1995)9 NWLR (Pt.421) 558.

Counsel urged us to interfere with the findings of the trial Court in respect of the assessment of damages, because according to him, the trial Court acted under misapprehension of facts or law, and failed to take into account relevant matters. He relied on Cameroon Airline V. Otutuizu (2011) LPELR – SC 217/2004.

He argued that the award of N5 Million general damages was most inappropriate and excessive. He urged us to resolve the issues for Appellant and to allow the appeal.

Responding, Counsel for the Respondent E.C. Mere Esq., on his issue one, said he proved the case to warrant the grant of the reliefs sought. He referred us to paragraphs 4,5 a-j, 6,7,8 and 9 of the deposition and the evidence given on same; that on 18/12/2008, he was in Lagos, from the United State of America, with some of his family members; that upon arrival in Lagos,

he booked the Appellant for the journey to Owerri; that among other luggages, he had hand bag and a carry-on luggage, which the Appellant agents insisted that they must also be weighed and loaded in the boot; he had no option than to surrender the two items to them (Appellant’s agents); he paid seven thousand Naira (N7,000.00) for fourteen luggages, which included the bag and the carry on luggage; he said that the bags contained the following:
a) $10,000 cash
b) N150,000 cash
c) One Rolex watch valued $4,000
d) One selko watch $270
e) 5 citizen watch $200
f) 2 digital cameras #350
g) One video camera $700
h) 6 deodorants, 3 towels, 3 sleeping gowns, 4 tooth pasts (sic) books invitation cards (for his Son’s Iwakwa) 6 perfumes, Chieftaincy gowns, gold necklaces, ivory task (elephant) beads, jewelries and many other miscellaneous items.
i) His bank statement revealing he withdrew huge sums of money in preparation for the journey. He added that the advance withdrawal, were made to avert security suspicion.

The Respondent also said that paragraphs 2,3,4,5 (a) -(g) of his further sworn deposition also gave

succinct evidence in proof of his (Respondent’s) case. He referred us to the exhibits:
1) Exhibit 1 being passenger ticket & baggage check;
2) Exhibit 2 – Receipt of payment for 14 luggages;
3) Exhibit 3 – Letter of 16/1/2009 from E.C. Mere & Associates, Legal Practitioner to the Managing Director of the Appellant;
4) Exhibit 4 – Letter by the Appellant to E.C. Mere Esq., dated 24/1/2009;
5) Exhibit 5 – Letter of 3/4/2009 by E.C. Mere Esq., to the Managing Director of Appellant;
6) Exhibit 6 – complaint of claimant dated 19/12/2008 to the Station Manager of the Appellant in Owerri;
7) Exhibit 7 – Statement of Account of Claimant and his wife viz Citi Bank USA;
8) Exhibit 8 – statement of Account of claimant and his wife viz Citi Bank USA;
9) Exhibit 9 – Power of Attorney to Lawrence Obilor.

He gave evidence of how he was stopped from entering the bus, until he surrendered the hand bag and the carryon luggage to agents of the Appellant, to be put in the boot, after a long argument, but that upon arrival at Owerri, the hand bag and the carryon luggage could not be found, necessitating the complaint he

made in Exhibit 6.

Respondent said it is common knowledge that travelers put their money and other expensive materials in carryon luggage and hand bag, hence he insisted to carry them, but Appellant’s agents must have well targeted those bags. He said that upon his complaint, the Appellant’s Manager at Owerri, requested him to come back to the terminal (station) the next day, and he did, but the items were not seen; that he waited, to no avail and, so took this action.

Counsel said that the Respondent had established that the two items- hand bag and carryon luggage, were lost in the custody of Appellant; Appellant had admitted that the Respondent travelled in their bus, with the 14 luggages; that with the admission, there was no need for further proof – Akibu V. Oduntan (1992) 2 NWLR (Pt.222) 210 at 226 – 227. He noted that Appellant never challenged the receipts of payment for 14 luggages, saying that evidence not challenged, amounts to admission. See NIDB LTD Vs SS Drinks (1992)5 NWLR (Pt.242)471 at 482.

Counsel said Appellant made a heavy weather, that the Respondent did not disclose the contents of the hand bag and the

carryon luggage. He said such is not done, anywhere, in the World before a transporter takes responsibility! He said that the trial Court was right to hold for the Respondent; that he had satisfied the requirements of Sections 131, 132 and 133 of the Evidence Act, 2011. The Respondent asserted that his case was founded on breach of contract, not negligence.

On issue 2, whether the Trial Court rightly found that exemption clause at the back of Exhibit 1, did not avail and exculpate Appellant, Counsel answered in the affirmative. Counsel argued that the said exemption clause was not brought to the attention of the Respondent at the time of the contract, he said that the Respondent had denied the alleged announcements, that goods at the terminal were at owners’ risk!

He argued that for exemption clause to be effective, it has to be disclosed before the contract is entered into or concluded. He relied on Imo Concorde Ltd V. Kalu Anya (1992) 4 NWLR (Pt.234); Counsel added that exemption clause must be in the contractual document, not a mere receipt Chapelton V. Barry UDC (1940)1 All ER 356 Parker V. South East Rail Co. (1877) 2 CPD 416. He relied on Okey V.Marlborough Court Ltd

(1949), All ER 127, to say that there must be evidence that exemption clause was brought to the attention of the Respondent- that there was prior notice of the exclusion clause.

On issue 3, whether the reliefs granted to the Respondent were excessive and amounted to double compensation, Counsel said a look at Exhibit 6 (complaint by Respondent) shows that the lost bags contained items far and above the special damages. He referred us to the items lost, which he said was not challenged. Counsel said the Court was right in awarding the general damages which touched on the items not mentioned in the special damages; he said that the damages were not excessive, as the same flowed from the breach of contract and was based on Restitution (sic) in integum.
He urged us to resolve the issues against Appellant and to dismiss the Appeal.

Appellant filed a Reply Brief, which in my view, rather raised earlier issues and re-argued the appeal afresh. That is not what a Reply brief is for. See Aduba & Ors Aduba 2018 LPELR – 45756 CA; Ecobank Plc V. HoneyWell Flour Mills Plc (2018) LPELR – 45124 (SC).
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RESOLUTION OF THE ISSUE
I shall consider this Appeal on the 3 issues donated by the Respondent which agree with those of the Appellant, and are more apt. Appellant’s issue (b), which was omitted in the list of issues, did not even state the ground(s) it was distilled from and was still-born and should be ignored and struck out. I shall take the Issues 1 and 2 together.

Did the Respondent establish his case to warrant the grant of the reliefs sought?

The evidence was never in doubt, that Appellant had a contract with the Respondent to carry him, his family and goods from Lagos to Owerri, which contract implied safe delivery at the destination, bearing, of course, any eventuality, outside the powers and/or control of the Appellant (including accident). And I think the payment of N7,000.00, which the Respondent made to Appellant, specially for the 14 luggages, including the hand bag and the carryon luggage, had made the Appellant committed to the Respondent, as by so doing, Appellant had undertaken to take care and charge of the goods, and to deliver the same safe and sound at destination – Owerri.

The payment made by the Respondent for the conveyance of the

goods, and the effort made by the Appellant at the terminal at Lagos, who insisted to weigh the goods and pack them into the boot of the bus, including the hand bag and carry on luggage which Appellant’s agent insisted must be taken from the Respondent at the point of entering the bus, sealed that agreement/undertaking to deliver the goods at destination, by the Appellant.

The trial Court’s findings on the point was clear, when it said:
“The defendant’s position on this issue was that no such incidence happened but that claimant was careless and negligent. Under cross-examination, the claimant maintained his stand and stated that when he arrived at Owerri and did not see the two luggages he complained to the station Manager who pleaded with him to come back the next day so that they can cross check whether the other buses carried the luggages. He came back on 19/12/2008 and the story was the languages (sic) were not seen. He put up a complaint in writing and submitted to the Station Manager. He waited for the defendant to give positive answer to his complaint and none was forthcoming. He had no other option than to approach his

solicitor to take over the matter. Exhibit 1 is his ticket from Owerri to Lagos (sic). There is no disputation about that. The defendant admits he was a passenger on the said 18/12/2008. Exhibit 2 is also a receipt issued to him, showing that he paid for fourteen luggages to be transported to Owerri on the fateful date.
The defendant denied there was a breach of contract nor where (sic) they negligent in handling the luggages. That the practice is that accompanied luggages are monitored by the owner, that there was announcement that every passenger should monitor his luggage and all those who have valuables should indicate… The defendant by its pleadings and evidence of DW1 is that, even if the two luggages got lost in transit or otherwise, it is not liable to damages as the exclusion or exemption clause, stipulated at the back of the ticket exonerated her for non-performance, losses or damages to claimant’s property. This is the strong wicket on which the defence is predicated.
The issues of announcement in the bus, cash transfer services and accompanied luggages to be monitored by the owner are periphery and scratching for defence in

the Suit. There was no evidence by the defendant that non employees of the company participated in loading luggages at its stations, or that non employees of the company have the temerity to stop a passenger from entering into the bus with its (sic) carry on luggages. It was not in evidence by the defendant that tagging of the luggages to correspond with the ticket of the owner was for fun or fancy and not for security reasons and identification of the owner. Therefore, where a carrier deliberately, negligently or by unorthodox manner, hands over luggage of a passenger to another and turns round to hold unto condition made and created by it, is unconscionable… the Claimant, having shown that his luggages got lost while in the custody of the defendant, the onus is on the defendant, to show that no luggage of the Claimant got lost, or that no carryon luggage and hand luggage were put in the boot of the bus… I hold that the Claimant satisfied the provisions of Sections 131, 132 and 133 of the Evidence Act 2011, his evidence was credible, satisfactory and cogent.” See pages 104 to 106 of the Records.

Appellant, in my opinion, also

impliedly admitted a possible foul play by its staff or agents, when it appealed to the Respondent, to come back on 19/12/2008, upon acknowledging that the carry on luggage and hand luggage, were missing, “so that they can cross check whether the other buses carried the luggages.”

Of course, upon insisting that the hand luggage and the carry on luggage be surrendered to them (agents of the Appellant) at the point of entering the bus, and the Respondent surrendering same to them, finally, Appellant had assumed extra responsibility to deliver same together with the other luggages, loaded in the boot of Appellant’s bus. Appellant cannot foist the Respondent with the duty or responsibility of monitoring or ensuring the safety of luggages in its custody and for which the Respondent had paid Appellant to deliver at destination, safe and sound.

In the case of Omotoye v. ABC (Transport Company) Ltd (2009) LPELR – 8269 (CA), this Court held:
“… Appellant tendered Exhibit C, a receipt for carriage of goods, to prove that there was a contract between her and the respondent for the transportation of the goods enumerated in

Exhibit E. Having accepted to carry the goods, the respondent owed the Appellant a duty of care to ensure that the goods arrived at their destination in good condition. See Oluigbo V. Umeh (2004) 6 NWLR (Pt. 870) 621 at 645 – 646; Panalpina World Transport (Nig.) Ltd v M.T Wariboko (1975) 24 at 29; Ogugua V. Armels Transport Ltd (1974) NSCC (Vol. 9) 169 at 172. The Supreme Court in Panalpina World Transport (Nig.) Ltd v M.T Wariboko (supra) at 29, held thus:
“We think that whenever goods belonging to one person are unconditionally entrusted to the care of another person for safe keeping or for other purpose, whether gratuitously or for reward, on the clear understanding that the goods in question shall ultimately be returned or delivered to the owner, that failure to return or deliver the said goods as agreed upon rises a presumption of negligence against the defaulting party… We take the view that in order to rebut the presumption; the party concerned should show to the satisfaction of the Court that the loss occurred not through their default, carelessness or recklessness, but inspite of all reasonable precaution taken by them in order to ensure the safety of the goods in

question. To hold otherwise would, in my view, work hardship on the owner of such goods.”
The above decision is quite instructive. Though this case at hand was not founded on tort of negligence, it is obvious, Appellant had equal duty under contract to deliver the goods safe to the Respondent at the agreed destination, after collecting money for the conveyance and delivery of the same, and after taking custody of the goods, as per Exhibits 1 and 2. The Exhibit 2 had listed that fourteen items (luggages) were taken into custody by the Appellant for which the Respondent paid N7,000.00 as transport fees to Appellant, to deliver the goods at Owerri for the Respondent. The luggages were also tagged to ensure/facilitate delivery to the right person. Appellant cannot wriggle out of responsibility to deliver the luggages.

Can Appellant rely on the exclusion or exemption clause at the back of the receipt (Exhibit 2) to escape responsibility? I sincerely doubt, as that would make nonsense of the entire contract for which Appellant was paid to convey the luggages to Owerri for the Respondent. Thus, aside from the fact that Appellant did not bring the

exclusion clause to the knowledge of the Respondent, (as it (Appellant) carefully hid the exclusion or exemption clause at the back of the receipt issued to the Respondent) Appellant, in my view, cannot, in all honesty, disown responsibility to deliver the goods it undertook to deliver to the Respondent, after collecting payment to do so. Such exemption clause would, in my view, be immoral and akin to official endorsement of fraud, whereby a party would cause the public to engage and trust it to deliver goods to agreed destination and after being paid for the delivery, confiscates the goods or lose same, and turn round to plead exemption clause, saying that the party who trusted it to deliver the goods was on a frolic, or was at its own risk, or should have monitored or watched over the said property (goods) while in transit! That would not sound reasonable or acceptable. It is like setting out, from the onset, to sabotage or decline from performing the very duty a party had undertaken to do, for which he was paid, and finding protection in law for the sabotage or decline. In the case of MTN Comm. Ltd V. Amadi (2012) LPELR – 21276, my Lord

Onyemenam JCA said thus, about exemption clause:
“Exemption, Exception, Limitation or Exclusion clause is a contractual provision, providing that a party will not be liable for damages for which that party would otherwise have ordinarily been liable. And exemption clause may take many forms, but one common thing in all such clauses is that they exempt a party from a liability which he would have borne had it not been for the clause. In some cases, the clause protects a party not only from a contractual liability but even from liability that may arise in tort… simply put, an exclusion clause seeks to modify or exclude the prima facie obligations that arise when an agreement is entered.”
My Lord Onyemenam JCA further held in that case (MTN Comm. Ltd V. Amadi (supra):
“The Courts have generally been hostile to exclusion clauses. Once there is any ambiguity in the clause, it will be construed against the person who is trying to rely on the clause. Accordingly, an exclusion clause provision must be comprehensive and obviously clear that it covers the liability. Under the common law, a party can only be availed of exclusion

clause when such party abides by the terms and conditions of the contract. For exclusion clause to be effective, it must pass, at least, 3 tests:
a) It has been incorporated into the agreement;
b) Its wording must cover the liability in question;
c) It must not be prohibited by statute or other law. See Stevens & Bolton LLP March 2012…”
Of course, exemption clause cannot avail a party who is in fundamental breach of the contract. See Ezex Courier Services Ltd V. Ugwu & Anor (2016) LPELR – 41478 (CA); DHL International (Nig.) Ltd V. Udechukwu Chidi (1994)2 NWLR (Pt.329) 720.
The law is also that a party relying on exemption clause must show that the plaintiff had been made aware of the exemption clause. Eagle Super Pack Nig. Ltd Vs ACB Plc (2006) LPELR – 980 SC; Richardson Spence & Co. & Anor V. Minnie Rown Tree (1894) AC 217 at 220. That cannot be established by hiding an exemption clause at the back of a receipt, issued to a party, after he had paid for goods/services (implying the contract had already been entered into before the issuance of the receipt!) That cannot put the party adequately on

Notice of the exemption or exclusion clause in my humble opinion. See also the case of Imo Concorde Hotel Ltd V. Kalu Anya (1992) 4 NWLR (Pt.234). I therefore agree with the trial Court that the purported exclusion clause can not avail the Appellant, in the circumstances.

Appellant had complained that the award by the Trial Court amounted to double compensation and that it was excessive. The Respondent had sought special damages of $16,620 (dollars) and N150,000, and general damages of N50 Million. See paragraph 9(a) (i) (ii) (iii) of the pleading on page 8 of the Records of Appeal. The Respondent led evidence to show that the monies and goods he had in the 2 luggages (carryon bag and hand bag) amounted to the said amounts, claimed in the special damages. He also tendered some statement of account (Exhibits 7 and 8), which showed his worth and money flow in Citi Bank USA, prior to the incident. The evidence was largely not controverted, except that Appellant maintained that the Respondent did not disclose the content of the said luggages, lost in Appellant’s custody.

I do not think the argument of non-disclosure of the contents of the lost

luggages would help the Appellant to whittle down the effect of the claims of the Respondent, which appeared consistent with his evidence, and as stated by him in Exhibit 6, made by Respondent on 19/12/2008, at the onset, when he complained to Appellant about the loss of the luggages (See pages 16 – 17 of the Records of Appeal). The Exhibit 7 shows the Respondent, as at October – November 19, 2008 had up to $16,596.72 in his bank account (Citi Bank USA), which he withdrew from, before setting out on the trip to Nigeria, which culminated in the ugly reception Appellant gave to him in Nigeria and which brought about this case. It was not necessary for the Respondent to disclose the contents of the luggages, in the circumstances of this case, to succeed in the special damages, in my opinion and I think the trial Court was right to hold for him.

On the general damages of N5Million, the law always leaves the determination of general damages and the quantum thereof at the discretion of the trial Judge, and of course, to be exercise judiciously and judicially. And once it is properly exercised, Appellate Court cannot disturb it. General damages usually

flows from the wrong of the defendant and need not be pleaded or proved. Emeghara V. Sterling Bank Plc (2018) LPELR – 45147 (CA); ELF Petroleum V. Umah & Ors (2018) LPELR – 43600 (SC).
The Respondent had argued that the items listed in the Exhibit 6 were not all covered in the special damages; that the trial Court was right to award general damages and that such award did not amount to double compensation, and the award was not excessive.
Counsel for the Appellant had rightly argued that Appeal Court is always wary to interfere with award of damages by the Lower Court, except where the trial Court, in making the award:
(a) Acted under a misapprehension of facts or law;
(b) Failed to take into account relevant matters;
(c) Made too high or too low award; or
(d) Where failure to interfere by the Appellate Court, would amount to injustice (Cameroon Airline V. Otutuizu (2011) LPELR SC/217/2004)
I am afraid Appellant in its arguments, did not show or demonstrate how the N5Million awarded by the trial Court infringed any of the above conditions stated by him, or how the award amounted to double compensation. I therefore find

no basis in the argument of the Appellant to fault the award of N5Million general damages, made by the trial Judge to Respondent, in the face of such callous breach of the contract to deliver the missing luggages, especially as Appellant had sought to escape responsibility, by pleading the cover of exemption clause.

The Respondent had travelled from the United States of America to Nigeria, with his family, during the festive period, when the incident occurred. Meeting such reception in Nigeria, namely the loss of his luggages containing money and other valuables, meant for the purpose of his visit, must have been quite a traumatic experience justifying the award.
According to the trial Court’s findings:
“… as a result of the loss, the Claimant was forced to make alternative arrangements, sourcing for fund, for the ceremony and his stay with his family in Nigeria. That the Claimant suffered pain, agony and (was) traumatized by the loss of his luggages containing his valuables.” (See Page 110 of the Records of Appeal).

I see no merit in the Appeal and so resolve the Issues against the Appellant and dismiss the

Appeal, with cost assessed at Fifty Thousand Naira (N50,000.00) only.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I had the privilege of reading in draft the leading judgment delivered by my learned brother, MBABA, JCA in this appeal. In the said judgment, Mbaba, JCA, resolved all the issues in the appeal against the Appellant and in favour of the Respondent. Consequently, the appeal was dismissed in its entirety with N50,000.00 costs against the Appellant.

I am at one with my learned brother in the manner the issues in the appeal (save as they include or involve the issue relating to the general damages of N5Million awarded the Respondent by the Lower Court) were resolved.

The Lower Court in its judgment, captured the case of the Respondent on pages 95- 96 of the records of appeal as follows: –
“The claimant instituted this action on 29th August, 2012 against the Defendant company claiming:
a) $16,620 dollars
b) N150,000…
c) N50,000,000.O0 (Fifty Million Naira) damages for breach of contract to take care of claimant’s luggage.”

Dwelling further on the issue of damages to which the Respondent was

entitled, in its judgment, the Lower Court on pages 109-111 of the records of appeal stated thus: –
“The claimant’s case as donated in the writ of summons and paragraph 9 of the statement of claim is rooted in breach of contract. He claims special damages for his loss of $16,620 dollars, and N150,000.. He also claims N50,000.000… (Fifty Million Naira) damages for breach of contract in paragraph 5(c), (d), (e), (f) (g) and (h) he enumerated the items in the two luggages. They include one Seiko watch, valued $270; five citizen watches valued $2000, two digital cameras $350; one video camera $700, chieftaincy gowns, gold necklaces, ivory tusk, beads, jewelries, books, towels, sleeping gowns, deodorants and others. In Xtoudos Services Nigeria Ltd V. Taisei (WA) Ltd (2006) 15 NWLR (Pt. 1003) 533 Ogbuagu JSC (as he then was) said, “It need be stressed that in a claim for damages for breach of contract, the Court is concerned with damages which are natural and probable consequences of the breach or damages within the contemplation of the parties at the time of the contract. See Mobil Oil Nig. Ltd V. Akin Fosile (1969) 1 NMLR 217, but where

a plaintiff decides or goes further to claim special damages, such must be specifically pleaded and proved”. The principles guiding the award of damages in tort are different from those guiding the award of damages in contract. The object of damages in tort is to put the plaintiff in the position he would have been in, if the tort had not been committed where as (sic) the object of contract damages is to put the plaintiff in the position he would have been in if the contract had been satisfactory (sic) performed. The assessment of damages is based on restitutio in integrum (a position the injured party would have been if the contract was not breached) and not restitutio in opulentium that is giving the claimant a windfall.
The claimant in his evidence stated that he had the items enumerated in paragraph 5 of his statement of claim in two luggages. He had made preparations to come home with his children for the Iwa akwa (age maturity) ceremony as customarily practiced by his Obowo people. He had invitation cards for the ceremony. He had his chieftaincy gowns and elephant tusk, beads, jewelries, video camera to record the ceremony, digital camera to take

pictures during the ceremony. He came with $10,000… and N150,000… All these were in the carryon luggage and had (sic: hand) luggage. As a result of the loss of these luggages, he had to make alternative arrangements to source for funds for the ceremony and their stay in Nigeria. He expressed the trauma, pain and anguish he passed through due to the loss. The defendant had practically no defence to the claims of the claimant stipulated in paragraph 5 of the statement of claim. Obviously, it should have occurred to the defendant that if they were unable to secure the carry on and hand luggage as they purported to represent to the claimant, the defendant should have allowed him to enter into the bus with those seemingly light luggages. There was no point checking the carryon and the hand luggages into the bus boot if they knew that they could not carry them from Lagos to Owerri as contracted. It was a breach of the contract by the defendant that forced the claimant to make alternative arrangement’s (sic) towards sourcing for funds for their stay in Nigeria and ceremony. The claims as per paragraph 5 of the statement of claim arose as a result of the

breach. In the final analysis, I hold as follows:
a) That the claimant established by credible, cogent and satisfactory evidence that he lost two luggages out of the fourteen luggages in the custody of defendant.
b) That the two luggages contain the sums of money and his belongings.
c) That the defendant was in breach of the contract to convey the claimant and his luggages from Lagos to Owerri safely and without any loss.
d) That the claimant is not bound by the exclusionary/exemption clause as contained or printed in Exhibit 1.
e) That no notice or adequate notice of the exemption clause (sic: was) given to the claimant.
f) That as a result of the loss, the claimant was forced to make alternative arrangements, sourcing for fund for the ceremony and his stay with his family in Nigeria.
g) That the claimant suffered pain, agony and traumatized by the loss of his luggage’s (sic: luggages) containing his valuables.
h) That Exhibit 6, the complaint of the claimant was received by the defendant and they had no defence for the fundamental breach.
i) That DW1 was not a witness of truth and only came to say what he

was asked to say by his employers and he claimed he did not know anything about the claimant’s journey on 18/12/2008.
j) That the activities of defendant’s staff and action towards the claimant on 18/12/2008 leaves a sour taste vide the administration of its Lagos terminal.
Having made these findings and bearing in mind that assessment of damages for breach of contract is based on Restitution in integum (sic) and not Restitutjo in Opulentium this case succeeds. The claimant is entitled to the reliefs sought as special damages as per paragraph 9(a)(I)and (II). On damages for breach of contract, l award to the claimant the sum of N5 million. The defendant to pay cost assessed and fixed N50,000… in favour of the claimant.” (Underlining Supplied by me)

The Appellant specifically appealed against the damages awarded by the Lower Court in ground 6 of the notice of appeal. The said ground of appeal and its particulars read thus:.
“The Learned Trial Court erred in law when it awarded double or multiple and excessive compensation to the claimant.
PARTICULARS OF ERROR
1. The Trial Court held that the claimant is

entitled to the reliefs sought as per paragraph 9(a)(i) and (ii). On damages for breach of contract, I awarded (Sic) the sum of 5 million.
2. The award at 9(a)(i) $16,620 dollars (ii) N150,000 as special and general damages to the claimant had fully compensated him for all his losses that he may have incurred over the alleged missing bag and carryon luggage.
3. The further award of damages for breach of contract in the sum of N5 million was excessive and amount to double compensation which is forbidden by law and it occasioned a miscarriage of justice.
4. The correct measure of damages, in the circumstances of this case is the amount which it cost to put the person (claimant) aggrieved by the alleged breach in which position he would have occupied had there been no breach. IDAHOSA V.. ORASANYE (1959) NSSCC (sic) 136 at 141.”

The Appellant dealt with the ground of appeal re-produced above under issue iv, in its brief of argument. The issue reads thus: –
“Whether the Lower Court was right to award double or multiple and excessive compensation to the claimant in this suit.

The issue re-produced above was argued at

paragraphs 4.44-4.53 on pages 15-17 of the Appellant’s brief of argument. The argument of the Appellant in the main, is that it was wrong of the Lower Court to have awarded the Respondent the damages it did, as the said Court engaged in an incorrect application of the principles relating to the award of damages for breach of contract. The Appellant also argued to the effect that the Respondent did not prove the special damages he claimed for.

The Respondent argued the issue relating to the damages awarded by the Lower Court under his issue 3 on pages 11-12 of his brief of argument. In the main, the Respondent maintained a stance that is diametrical or completely opposed to that of the Appellant.

In his reply brief, the Appellant amongst others argued to the effect that it is not enough for a Court to simply award damages in a suit without giving any reason. It’s the stance of the Appellant that the Lower Court gave no reason as to how it arrived at the high sum of N5 Million, as reasonable general damages, in the instant case. The Appellant submitted that this Court has the power to interfere with the award of general damages by holding

that the award of N5million was too high in the circumstances of the instant case. Cases considered relevant were cited.

to exercise as to the quantum of damages it would award in a claim for damages… In order to justify reversing the findings of a Trial Court on the question of amount of damages, it will generally be necessary that an Appellate Court should be convinced that:
“(a) The trial Court acted under a mistake of law or upon some wrong principle of law or
(b) The award is arbitrary
(C) The amount awarded is so extremely high or low as to make it, in the judgment of the Appellate Court an entirely erroneous estimate of the damages to which the plaintiff is entitled.
(d) There has been a wrong exercise of discretion in the award or
(e) The Trial Court acted in disregard of principles or
(f) The trial Court acted under misapprehension of fact
(g) The trial Court took into account irrelevant matters or failed to take account of relevant matters.
(h) Injustice will result if the appellate Court does not interfere.”
It is clear from the portion of the judgment of the lower Court reproduced herein before, that the said Court understood the case of the Appellant to be founded or grounded in contract. The Appellant clearly

does not dispute the position of the Lower Court in this regard, in the instant appeal. The Respondent is equally satisfied with the position of the Lower Court as stated herein before. This is because he has not appealed against the finding of the Lower Court that “the claims as per paragraph 5 of the statement of claim arose as a result of the breach of contract”.
The position of the law as it relates to award of damages in a case/claim founded in contract, is in my considered view very settled; and has been so for long. It is that in cases of breach of contract, the damages that would be awarded, are the pecuniary loss that may fairly and reasonably be considered as either arising naturally from the breach itself or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach. To bring out what I am saying more clearly, I consider it pertinent to re-produce the pronouncements of the Supreme Court in some cases dealing with award of damages for breach of contract. Hereunder are the said cases:
1.ARMELS TRANSPORT LTD. V TRANSCO (NIG) LTD (1974)

LPELR-557(SC) wherein the Supreme Court stated thus:-
“We note that, when dealing with the same principle of law as that raised in this appeal in the EZEANI V. EJIDIKE case (Supra), Brett J.S.C. in delivering the judgment of this Court at page 405 of the report observed thus: “Where, as has happened here, a plaintiff asking for damages begins by setting out specific items of damages and then adds a claim under the heading of general damages for a sum which will bring the total claimed to a round figure, his claim should always be carefully scrutinised both by the defendant and by the Court in order to see whether he is in fact asking to receive compensation more than once for the same cause of action. An instance of this occurred in ONAGA & Ors V. MICHO & Co. (1961) ALL NIGERIA LAW REPORTS p. 324, where this Court held that having awarded damages for his actual loss under various specific headings a plaintiff in an action for breach of contract could not receive any further award under the heading of general damages. The measure of damages in an action in tort is not the same as in an action in contract, but the rule against double

compensation remains the same.”
2. KUSFA V. UNITED BAWO CONSTRUCTION CO. LTD (1994) LPELR-1721(SC) wherein the Supreme Court stated thus:.
“The law is that in cases of breach of contract, the damages that would be awarded are the pecuniary loss that may fairly and reasonably be considered as either arising naturally from the breach itself or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach.
The law however, goes on to lay down that in an action for breach of contract a plaintiff who is well compensated under one head of damages for a particular claim cannot also be compensated in respect of the same claim under another head of damages as this will amount to double compensation. See Nigeria Railway Corporation V. Odemuyiwa (1974) 1 ANLR 388 (Reprint); Onaga & Ors V. Micho & Co. (supra) where the award of general damages by the trial Court was set aside by this Court on the ground that by the award of special damages the loss sustained by the plaintiff was adequately taken care of. The law frowns against double

compensation whether in contract or tort. …”
On the principles of law reviewed above and having regard to the facts of this appeal, I can find no legal basis whatsoever for the award of general damages made by the trial Court. In my considered view, the Court below is right in setting aside the award of general damages. On the facts, the plaintiff in my respectful view has been adequately compensated by the award of special damages made by the trial Judge. Having been awarded virtually the entire contract sum, I cannot see the necessity for the award of general damages …”
3. G. CHITEX INDUSTRIES LTD V. OCEANIC BANK INTERNATIONAL (NIG) LTD (2005) LPELR-1293(SC) wherein the Supreme Court stated that:.
“In cases of breach of contract a plaintiff is only entitled to damages naturally flowing or resulting from the breach. See… The measure of damages, in such cases of breach of contract, is in the terms of the loss which is reasonably within the contemplation of the parties at the time of contract. See… When considering damages arising from a breach of a Contract there is no room for damages which are merely speculative or sentimental

unless these are specifically provided for by the express terms of the contract. See… The appellant’s claim for N3.5 million naira for “loss of credit facilities, goodwill, profits and future prospects” was clearly not specifically spelt out at the time of the contract of only transferring N12,000 US Dollars to the business associates of the appellants. The claim is sentimental and speculative. The respondent did not specifically undertake any obligation to indemnify the appellant for the conduct of the third party in relation to their business with the appellant as there was no provision of such a claim in the contract. There was no mention of any loss of credit facility, goodwill, profits or future prospects at the time of contract. The loss if any, was not within the contemplation. In my view, the only damages recoverable within the contemplation of the parties was the difference in the rate of exchange the appellant was obliged to pay i.e. the sum N66,000.00 which was the presumed and normal consequence of the respondent’s breach see Kusfa’s case supra. To ask the respondent to pay for any further sum would amount to double

compensation. Although the terms “special” and “general” damages are not appropriate in an action for breach of contract, but there are special circumstances where the parties do make contracts and bind themselves knowingly that a breach of contract under the special circumstances would also attract damages which the parties agreed to at the time of the contract. See… The claim of N3.5 million in this (sic) circumstances even if it was within the contemplation of the parties “as a special case” which it was not, was not satisfactorily proved…
4. EAGLE SUPER PACK (NIG.) LTD. V. A.C.B. PLC (2006) LPELR 980(SC) wherein the Supreme Court stated thus:.
“What is the measure of damages in a case as this? In Omonuwa V. Wahabi (1976) 4 Sc. (sic) 37 at pp. 47.48, this Court per ldigbe, JSC explained basis of compensation and the measure of damages in a case of breach of contract thus:
“In the preparation of the claim for, as well as in the consideration of an award in consequence of a breach of contract, the measure of damages is the loss flowing naturally from the breach and incurred in direct

consequence of the violation. The damages recoverable are the losses reasonably foreseeable by the parties and foreseen by them at the time of the contract as inevitably arising if one of them broke faith with the other. In the contemplation of such a loss, there can be no room for claims which are merely speculative or sentimental unless these are specially provided for by the terms of the contract. It is only in this connection that damages can be properly described as special in the conception of contractual awards and it must be borne in mind that damages normally recoverable are based on the normal and presumed consequences of the breach complained of … Thus the terms general and special damages are normally inept in the categorization of damages for the purpose of awards in cases of breach of contract. We have had to point out this before… and we must make the point that apart from damages naturally resulting from the breach no other form of general damages can be contemplated …” (italics supplied by ldigbe. JSC)… And on the same subject, this Court in the case of Gregoire Agbale V. Nallona Motors Ltd. observed as follows: “It is undesirable

to refer in contract to general and special damages as normally the only damages, other than those arising naturally, flow from consequences specifically provided for by the parties which would not otherwise naturally arise from a breach of the contract… (italics supplied by ldigbe, JSC). (see SC.20/68 of 13 March, 1970 unreported by see (1970) ALR 266 at 273.”
It is clear from the portion of the judgment of the Lower Court reproduced hereinbefore, that one of the circumstances the said Court relied upon or took into consideration, in making an award of N5 million general damages in favour of the Respondent, is the fact that the said Respondent had to make alternative arrangements to source for funds for the ceremony he came for and his stay and that of his family in Nigeria. The said Court also took into consideration (i) the pains, agony and traumatization suffered by the Respondent as a result of the loss of his luggages containing his valuables and that the action of the Appellant was atrocious and unconscionable in that having lost the Respondent’s two luggages, it turned round to avoid liability.
I am of the considered view that

it is obvious from the judgment of the lower Court that the general damages in the sum of N5 million awarded the Respondent, was also to compensate him for the “6 deodorants, 3 towels, 3 sleeping gowns, 4 tooth pasts (sic), books, invitation cards (for my sons (sic) lwakwa), 6 perfumes, chieftaincy gowns, gold necklaces, ivory tusk (elephant), beads, jewelries, and many other miscellaneous items as pleaded in paragraph 5 of the statement of claim.”
I am also of the considered view, that it is very clear from the judgment of the Lower Court that whatever alternative arrangement for funds the Respondent made, and or agony, and traumatization the Respondent suffered, came to be, as a result of the loss of the monies which he claimed to have in his two lost luggages. The Respondent was duly awarded the specific monetary claims he placed before the Lower Court, in full. Having regard to the cases hereinbefore cited, it is obvious that any award of general damages on the basis of the aforementioned grounds or for the reasons stated hereinbefore, is not proper for the breach of the contract between the Appellant and the Respondent. The Respondent in his

wisdom claimed specific damages or sums in respect of many of the items that he claimed were in the two luggages that the Appellant did not deliver to him (Respondent) at Owerri. The Respondent, in order to guide the Court, ascribed prices to some of the items in question. On the basis of the fact that the Respondent tendered his statement of account to show that he was sufficiently funded at a point in time before he left the USA for Nigeria, the lower Court awarded the Respondent the full value of the said items. What I find strange and which I believe that the Lower Court equally ought to have found strange is that the Respondent who was aware of the need to plead the prices of items like wrist watches and cameras, apart from cash he alleged to have in the two luggages, never thought it fit to have pleaded the costs or prices of the other items pleaded in paragraph 5(h) of the statement of claim, particularly special or unique items like ivory tusk, chieftaincy gowns gold necklaces, invitation cards and beads. The question is, are these items such that the Lower Court could have properly speculated about their existence in the first place, talk less of

ascribing any value to the said items and to have awarded a sum of N5 million as general damages and which damages was to compensate the Respondent for the said items. The clear answer to this poser in my considered view, is that an award by the lower Court in respect of the items stated in paragraph 5(h) of the statement of claim, without any iota of evidence regarding the cost of the said items was more sentimental than judicious. Damages in respect of the items in question were pecuniary losses which have crystallized in terms of cash and values before the trial and the entitlement of the Respondent to damages in respect of the same, ought to have been specifically pleaded and proved. See amongst many others, the cases of AJIGBOTOSHO V RCC (2018) LPELR-44774(SC) and OBASUYI V. BUSINESS VENTURES LTD (2000) LPELR-2155(SC). Indeed, as far back as 1975, the Supreme Court has categorically stated that the award of general damages is improper where the quantum of loss is certain. See the case of SOETAN & ANOR V. OGUNWO (1975) LPELR-3089(SC).
Suffice it to say that the cases I have earlier cited in this judgment in respect of the measure of

damages for breach of contract, loudly condemn the act of giving compensation to a plaintiff, as a largesse. Hence, the position of the law that in cases of contract, is that it is wrong for a trial Court to award general damages for the breach of a contract when the innocent party has been fully compensated for the items he has claimed as special damages. See the case of AGU V. GENERAL OIL LTD (2015) LPELR-24613(SC) in which the case of Ijebu-Ode Local Government V. Adedeji Balogun (1991) 1 NWLR (Pt. 166) 136 at 142 was applied.
The Lower Court having regard to the circumstances of the instant case, in my considered view not only contravened the principle of law regarding award of damages in cases of contract, but made an award of N5 million general damages in the instant case arbitrarily. These are sufficient grounds for the award of general damages made by the Lower Court to be set aside; and it is hereby set aside.

In conclusion, issue 4 formulated by the Appellant is resolved in its favour in as much as the general damages of N5 million awarded in favour of the Respondent has been set aside. Accordingly the instant appeal succeeds in part.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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I however abide by the costs awarded in favour of the Respondent in the leading judgment.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: I agree.

Appearances:

EMEKA O. NWAGWU, ESQ. For Appellant(s)

E.C. MERE, ESQ. For Respondent(s)