BENEDICT OLUIGBO & ORS v. GODFREY UMEH
In The Court of Appeal of Nigeria
On Wednesday, the 21st day of May, 2003
GEORGE ADESOLA OGUNTADE Justice of The Court of Appeal of Nigeria
ZAINAB ADAMU BULKACHUWA Justice of The Court of Appeal of Nigeria
ALBERT GBADEBO ODUYEMI Justice of The Court of Appeal of Nigeria
- BENEDICT OLUIGBO
2. JOSEPH OKAFOR
3. JOENNA AGENCIES NIGERIA LTD. Appellant(s)
GODFREY UMEH Respondent(s)
ALBERT GBADEBO ODUYEMI, J.C.A. (Delivering the Leading Judgment): By a writ of summons issued out of the Minna Division of the High Court of Niger State, the respondent herein as plaintiff, claimed from the appellants herein, as defendants jointly and severally the sum of N300,000.00 (Three hundred thousand Naira only), being amount collected by the defendants from the plaintiff on 27th March, 1994.
The brief facts of the case are that on 27th March, 1994, the plaintiff was a passenger, in a commercial vehicle Registration No. NG 6316 MC from Minna in Niger State to Lagos.
1st defendant, an employee of 3rd defendant was the conductor of the said commercial vehicle on the journey in question.
2nd defendant is the Chief Executive of 3rd defendant, a company which owns and operates the commercial vehicle.
At the commencement of the journey in Minna, plaintiff claims to have handed over to the 1st defendant (on the invitation of 1st defendant to passengers who had obtained tickets for the journey and who had on them moneys for safekeeping for the purpose of keeping same in the safe of the vehicle) two parcels containing the sum of N300,000.00 and that at the end of the journey, when plaintiff demanded a return of the two parcels of money, 1st defendant failed to give the parcels to him, claiming that the safe in which he kept the money had been forcibly opened and that plaintiff’s money together with that of one other passenger in the vehicle had been removed; while 1st defendant returned the parcels of monies of other passengers, whose monies he had collected to the other passengers.
Pleadings were filed and exchanged.
By the amended statement of claim of plaintiff, he claimed as follows:
“(a) The sum of N300,000.00 (Three hundred thousand Naira) contained in the said parcel.
(b) For N10,000.00 (Ten thousand Naira only) as general damages.
(c) For 15% interest on the said sum until the sum is paid.
The defendants by their amended joint statement of defence denied in its entirety the claim of the plaintiff.
At the end of the trial, in which 5 witnesses testified for the plaintiff and six witnesses for the defendants, the learned trial Judge found for the plaintiff in negligence and made an order that the defendants do pay the plaintiff the sum of N300,000.00 together with general damages assessed at N10,000.00.
Defendants are aggrieved by the judgment and have appealed to this court.
Originally, defendants filed 10 grounds of appeal in the lower court.
By leave of this court, appellants filed 3 further grounds of appeal.
From the 13 grounds of appeal, the appellants have distilled in the brief of arguments deemed duly filed with leave of this court seven issues as follows:
“1. Whether the judgment of the trial Judge would have been any different, if she had given careful consideration to the evidence of the defence witness particularly the evidence of DW2 and DW4 and whether having regard to the evidence on the record his lordship findings against the defendants can be sustained?
2. Whether the award of ten thousand Naira general damages, in addition to the sum of three hundred thousand Naira, special damages is not a sort of double compensation.
3. Was there any strict proof in accordance with law, practice and evidence that the parcel handed over to the 1st defendant by the plaintiff was in fact encasing the sum of N300,000.00 or any other amount at all.
4(a) Whether from the records there, were any allegations of negligence or carelessness against the defendants/ appellants and if so, whether such allegation were proved by means of any credible evidence. But if not, whether any evidence led in regard thereof i.e. (in support of negligence) does not go to any issue as same was not alleged?
(b) Even if negligence or carelessness was alleged, whether any evidence in regard thereof go to any issue, if particulars of the said negligence were not furnished and res ipsa loquitur not alleged.
(c) Whether the appellants owed the respondent, any special duty higher and other than the general duty of care owed to other customers and as owed by other commuter buses of the appellants kind in their general and customary practice.
5. Whether a piece of evidence, not admissible in any event, or that goes to no issue becomes admissible on the ground only that it was not challenged. Oba Goriola Oseni & 2 Others v. Yakubu Dawodu & Others (1994) 4 NWLR (Pt. 339) 390, (1994) 4 SCNJ 197; Michael Adebayo Agbaje v. Alhaji Lasisi Adigun (1993) 1 NWLR (Pt.269) 261, (1993) SCNJ 1.
6. Whether the appellants were not exempted from liability of the loss of the respondent’s parcel having regard to exemption clause bold written on the vehicle and on exhibit 5.
7. Whether the learned trial Judge can, suo motu, or in any event, abridge the period assigned for appeal by the law or statute or the constitution of Federal Republic of Nigeria.”
Although, this court on 22nd October, 2001 granted to respondent extension of time within which to file respondent’s brief, no brief was filed by respondent in this appeal.
Accordingly, on the application of appellants made under Order 6 rules (4) and (10) of the rules of this court, it was ordered on 7th November, 2002, that the appeal herein be heard and determined on the appellant’s brief alone.
At the hearing of the appeal appellants’ counsel Ikechukwu Ezechukwu, Esq. merely adopted the brief of appellant and urged this court to allow the appeal.
I think that the 7 issues set out in the appellants’ brief, can conveniently be subsumed within 3 issues as follows:
(i) Whether from the state of the pleadings and the evidence on record, the plaintiff was entitled to judgment in damages for the sum of N300,000.00. (Grounds 1, 3, 4, 5, 6, 7, 8, 10, 11,12 and 13).
(ii) Whether the award of general damages in the sum of N10,000.00 did not amount to double compensation.
(iii) Whether the appellants are restricted in the time within which to appeal against the judgment of the lower court to 30 days. (Ground 9).
Accordingly, I shall resolve this appeal on the 3 issues formulated by me in this judgment.
It would help in understanding the issues involved in this appeal, if the relevant portions of the pleadings as well as of the judgment of the lower court are, at this stage extracted since the whole of issue 1 has to do with the evaluation of the evidence by the lower court.
Amended statement of claim
The relevant paragraphs are paragraphs 6, 7, 10, 11, 12, 13, 14, 19, 21, 22 and 23.
“6. On the 27th March, 1994, while the plaintiff was about boarding the said bus, he handed over to the first defendant, as is the usual practice of the transport service of the third defendant, a parcel containing the sum of N300,000.00 (Three hundred thousand Naira only) for safe keeping in the safe, built in the body of the bus.
7. The first defendant kept the parcel containing the said amount, together with the parcels of other passengers in the said safe which is accessible to only the first defendant and the driver of the said bus.
10. That the driver of the 3rd defendant, stopped at Ojota bus stop and one Mr. Oke dropped. And when the driver got to Ojuelegba bus stop, he dropped together with the plaintiff, whereupon he left the car to the 1st defendant to continue and finish the journey.
11. That when the plaintiff dropped at Ojuelegba, he was not given his parcel, containing the aforementioned amount, as this was the normal practice of the defendant’s transport service not to open the safe in the night on arrival at Lagos.
12. That the plaintiff went to his brother’s house at No. 119 at Ojuelegba road to pass the night. And the following day on Ebutero garage in Lagos Island, where the 3rd defendant’s motors usually parked on arrival at Lagos, to ask for his parcel, containing the money he gave the 1st defendant for safe custody, before boarding the vehicle in Minna.
13. That the plaintiff met the 1st defendant in the vehicle with one Chibuike Okonkwo, and the other passengers are already in the market shopping. The plaintiff thereupon asked the 1st defendant, who stated that the safe was broken into and somebody made away with the plaintiff’s parcel containing the sum of N300,000.00 and that of one Chibuike Okonkwo also.
14. That the plaintiff was shocked at the revelation by the 1st defendant. The plaintiff therefore, checked the safe and discovered that it was only the padlock that was removed from the safe. And the keys to the padlock are always in possession of the 1st defendant. The plaintiff shall rely on the padlock keys at the trial of this action. The defendants are hereby, given notice to produce the padlock keys at the trial of this action.
19. The plaintiff, states further that at the SIIB office Minna, the plaintiff, 1st defendant and other vital witnesses made statements to the police, after being cautioned.
The plaintiff hereby pleads these statements made to the police and will rely on them at the trial.
21. The plaintiff further avers that since there is no evidence of the safe being broken, the defendants should be held responsible for the money.
22. The plaintiff further avers that the parcel containing the said amount and other properties given to the defendants, is to be taken care of by the defendants and normally, every parcel is given to the respective owner safely at Lagos.
23. The plaintiff avers that the defendants have failed to hand over the parcel, containing the sum of N300,000.00 to the plaintiff on the 28th March, 1994, when other passengers, but one Mr. Chibuike Okonkwo, collected theirs.
Amended joint statement of defence dated 22nd February, 1995, Paragraphs 8, 9, 11, 13, 14, 18, 29 and 30.
“8. In answer to paragraph 6 of the plaintiff’s statement of claim, the defendants aver that it is not the usual practice of the transport service or the 3rd defendant to collect any luggage or parcel from any passenger for safe keeping.
9. In further answer to paragraph 6 of the plaintiff’s statement of claim, the defendants aver that it is stated clearly in the company’s or 3rd defendant’s receipt, which is being issued to every passenger before boarding the vehicle that ‘luggages at owners’ risk’ which means that the authority does not accept liability for loss of any goods. Copies of such receipt issued to passengers on that day are hereby pleaded and shall be relied upon at the trial of this case.
11. In answer to paragraph 7 of the plaintiff’s statement of claim, the 1st defendant aver that he never at any time, on 27th March, 1994, collect any parcel containing the sum of N300,000.00 from the plaintiff for safe keeping.
13. In answer to the plaintiff’s averment in paragraph 8 the defendants, aver that the 1st defendant never handed any parcel to any passenger, while they arrived Lagos, as he never collect any parcel from any passenger for safe keeping.
14. In further answer to paragraph 8 of the plaintiff’s statement of claim, the defendant aver that it was because of this that the plaintiff and one Chibuike Okonkwo reported the 1st defendant to the State SIIB Minna for criminal breach of trust and the 1st defendant was charged to Senior Magistrate Court 3, Minna, where the case is still pending. The defendants hereby pleaded the record of proceedings of the Senior Magistrate Court 3, Minna and shall be relied upon at the trial of this suit.
18. In further answer to paragraphs 10 and 11 of the plaintiff’s statement of claim, the defendants further aver that, since the defendants did not collect any parcel from the plaintiff, it is not the duty of the defendants to give any parcel to the plaintiff or any other passenger whatsoever.
29. The defendants further shall contend at the trial of this suit that there was never at any time before or after the 27th March, 1994 the first defendant or any defendant contracted with the plaintiff to keep the alleged missing parcel containing the said amount.
30. That the defendants aver that there was no any consideration whatsoever as to create special legal obligation for the alleged missing bag or parcel.”
Further amended joint statement of defence dated 3rd October, 1996 page 47 of record.
Paragraphs 5 and 6.
“5. The defendants further state that it is not the tradition of the 3rd defendant’s company to be responsible for any loss of goods by any passengers.
6. In answer to paragraph 23 of the plaintiff’s statement of claim the defendants aver that the normal practice is that each passenger will pick his properties or parcel after the safe is opened and it is not the duty of the defendants to hand over parcels or properties to any customer.”
The following extracted portions of the judgment of the court are relevant to the evaluation of the evidence:
“1. On the first issue – whether claim based on money had and received. Here there has to be evidence of money had and received. The first plaintiff no doubt delivered his parcel of money to the first defendant on the 27/3/94 for safe keeping and same to be collected in Lagos.
We hear this from the testimonies of PW1, 2, 3 and 4 and these witnesses all testified that it was the normal practice for these moneys to be so collected and kept for them. In exhibit 4 the statement which DW4 Sgt.
Umaru Edota said the first defendant volunteered, he admitted therein that he collected parcels of money from passengers for safe keeping…
In the case we have at hand, the defendant’s failure to deliver this parcel entrusted him raises the presumption of negligence. The first defendant did not show to the satisfaction of the court that this loss did not occurred (sic) through his faults, carelessness or recklessness.
This can be seen clearly from the testimony of PW1 who said he came in the morning to collect his parcel and was told thieves broke in and stole his money, along with just one other passenger, but all the others got theirs back. Paragraph eight of the statement of claim so averse (sic) too. The fact too that the plaintiff did not see any breakages on the safe shows there was negligence. PW1 in his testimony said when he was told that thieves broke in and stole his money he looked underneath the bus to see the safe and found it was intact, there was no breakage and PW3 during cross examination said when his brother came back from Lagos and he was told of the incident he looked and saw no breakage, and PW4 too saw no breakage and PW5 Raymond Sgt. saw no breakage on the safe.
However, his colleague who investigated the case along with him, one Sgt. Umaru Edota, DW4, said he noticed the safe was forcefully opened. It is unimaginable how two people who investigated the same matter came out with different result. No doubt one of them will be telling lies. I tender (sic) here to believe the plaintiff said that there was no breakage. This is more so because the first DW said he discovered the padlock of the safe broken, this broken padlock was not tendered in evidence. He also stated in evidence that one Ngozi, in the morning drew his attention to a parcel on the ground, when he was asked to move his vehicle. The defendants did not call this Ngozi to testify to the veracity of this claim. One Andrew advised the first DW to go out of the vehicle and see what was happening outside, this Andrew the defendant did not deem fit to call to testify as to authenticity of what they were saying. The first defendant too alleged that one Obinna got his own parcel that morning from the mud. That Obinna, we were not opportuned to see and hear his testimony. After the incident, DW1 who was primarily involved told the first PW to wait for the driver, who slept somewhere to come before they took any action and when the driver himself arrived instead of reporting to the police in Lagos, they preferred getting instructions from their Director in Minna first. They, following this alleged that the Director said the matter will be settled in Minna, but the Director who testified as DW2 denied saying so. If these assertions were true, the defendant would have called these three people and tendered this broken padlock in evidence to substantiate what they are saying. Based on the reasons above therefore, I am of the candid opinion that the parcel of the first plaintiff got missing through the first defendant’s fault or negligence.
2. On the second issue – that is whether the cause of action is based on negligence or the duty of care. As seen from the Panapina (sic) case cited above, once goods are entrusted to another person, either for reward or gratuitously then, the defendant owes a duty of care; failure of which raises a presumption of negligence. The defendant here knew as they had always done that the plaintiff was giving him money for safe keeping even though it was not counted in the first defendant’s presence, but the second PW testified to the fact that he collected that money the previous day from Afri Bank, Minna, and this piece of evidence was not challenged in any way by the defendants.
3. And thirdly – does plaintiff have any locus to sue on the recovering of the parcel or value of the parcel?
There was no separate contract to the parcel no doubt, but the said parcel was entrusted to the first defendant, this Mr. Usman conceded in his address saying and I quote, there may be presumption in law as to where goods are entrusted to one person and that one defaults then he is bound to prove that it was not due to his recklessness. This parcel, we have shown abundant evidence above already that it was entrusted to the first defendant which he had to deliver in Lagos and could not and has till date not accounted for. He, himself handed the parcel over to the first defendant and so there could be no better person to sue in the circumstance other than the defendant himself.
There was no theft as seen from the above, but rather entrustment of goods that is the N300,000.00 to the first defendant and negligence of the same which the defendant has till date not delivered or accounted for. This case has therefore, been established on the balance of probabilities and judgment is for this reason hereby given in favour of the plaintiff. The defendants are to pay them back their N300,000.00 and N10,000.00 is awarded them as general damages.”
In respect of issue 1, it is the contention of appellants that:
The learned trial Judge did not give adequate consideration to the evidence of DW2 – one Sunday Adebayo, who claimed to have been one of the passengers in the defendant’s vehicle on the journey to Lagos and who claimed to have been an eye-witness to the scene at Ebutero garage at the time that the loss of plaintiff’s money was discovered vis-a-vis the consideration which the court gave to plaintiff and his witnesses; particularly on the issue whether the safe of the vehicle was discovered to have been forcibly broken into; that it was wrong of the learned trial court to have invoked section 149(d) of The Evidence Act, Cap. 112, LFN, 1990, in arriving at the decision to believe the witnesses of the plaintiff and to disbelieve those of the defendants, when the witnesses mentioned were all people in transit, who could not easily be reached and when such evidence as they were going to give as eye-witnesses was already given by DW2;
That PW1 is the younger brother of PW2, who is the owner of the alleged missing money, again money belonging to PW3 is also allegedly to have been missing in the same incident; and he had filed his own suit for the recovery of his own money in court; that PW4 is the brother of PW3 whose money was lost in the same circumstance, that in short, all four witnesses have an interest to protect and it was in their interest, if they said that the safe was not broken into.
Appellants submitted that the learned trial Judge ought to have preferred the evidence of DW4 to that of PW5 both police officers, who gave contradictory evidence on whether or not the safe was broken into when they inspected the vehicle in question having regard to the photograph exhibit 3A; that learned trial Judge should not have held that the parcels allegedly handed over to DW1 – the 1st defendant encased the sum of N300,000.00 as there was no credible evidence to support the assertion; particularly, when it was not alleged that the money was counted in the presence of DW1 before the parcels were handed to him for safekeeping.
It is also, the contention of appellants that negligence which the learned trial Judge relied upon in finding the appellants liable was neither pleaded, canvassed nor proved, and that no particulars of negligence were pleaded as required by rules of court – nor was res ipsa loquitur pleaded.
It is also, contended by appellants that exhibit 5 i.e. receipt for the payment of passenger fare which had on the face of it the words “Luggages at owner’s risk” exempted the appellants from any liability for loss of luggage in appellant’s vehicle.
As noted earlier, there was no respondent’s brief filed in respect of this appeal.
In the event, I shall only consider the appeal in the light of the appellant’s brief of argument.
One prominent feature of this case is that, apart from the consensus between the plaintiff and the defendants that plaintiff was a passenger in the commercial vehicle of the 3rd defendant on the journey in question the version of the parties in almost every other material aspect of the case is in complete contrast with that of the other party.
While the plaintiff and all his witnesses gave evidence in support of the averments in his pleading, the defendants including all their witnesses except DW3, who merely came to produce court exhibits testify in complete denial of every material averment.
The learned trial Judge summarised the evidence of DW2 as follows at page 76 of the record:
“DW2, Sunday Adebayo says he normally travels with defendants’ vehicle to Lagos and he traveled with them on the 27/3/94. It is not true the witness said that they were asked to bring their bags for safe keeping on the day they traveled. In the morning of the 28/3/94, he went out of the vehicle to buy chewing sticks and came to meet people gathered on their vehicle, he looked and saw the boot broken and they were asked to go to the market. He does not normally give his money to them as it is written on the vehicle that goods are at owner’s risk. He did not hear any sound of breakage while inside the vehicle. In cross-examination, he said if someone cuts a padlock, no matter how small, it will make noise.”
However, in exhibit 4 – a statement earlier volunteered by 1st defendant/DW1 to DW4 in the course of police investigations into the loss, the following passages are found:
“Whenever we are traveling I do come out an hour before the take off time to check and arrange the passengers.
Some of the passengers normally do give their bags containing money to me for safe keeping for fear of being attacked by armed robbers. There are three safes in the vehicle. One is under the vehicle, one is inside the vehicle, while the other one is the cassette box.
On Sunday, being 27/3/94, we set for a journey to Lagos at about 12.00 hrs. Before then, some passengers have given me their bags for safe keeping, and as usual, I kept the bags in the safe under the vehicle. I don’t know the amount of money kept in any of the bags, because none of the passengers showed me their money.
My driver dropped at Ojuelegba and handed over the vehicle to me as he used to do at times. I drove the vehicle to Ebute Ero garage and parked it there. I did not cheek the safe where I kept the money, before sleeping inside the vehicle…”
It is clear to me that in the face of exhibit 4, DW2 was obviously lying when he testified on oath in court that it was not true that the passengers were asked to bring their bags of money for safekeeping on the day they traveled. It is also, apparent that the testimony of DW2 did not deserve any greater weight on this issue as well as on the issue of the condition of the safe, when plaintiff’s money was found missing from the other parcels accepted for safe keeping than was given by the learned trial Judge to the other witnesses presented by the defence except DW3, who only came to produce documents in the court’s custody.
Also, since exhibit 4 supported the version of the plaintiff and his witnesses on the issue of handing over moneys by passengers to DW1 at the commencement of the journey, it stands to reason that the evidence of the plaintiff and his witnesses deserves to be given greater weight and credibility (as given by the court) when there is conflict between the assertions of plaintiff and those of the defendants.
In the face of the non-reliability of the evidence of DW2, it is obvious that it cannot be said that the learned trial Judge was wrong to have expected more credible evidence than that given by DW1, DW2, DW4, DW5 and DW6 as to the condition of the padlock and the safe of the vehicle in order to successfully contradict the pleadings and evidence adduced by PWI and his witnesses.
Appellants contend that the witnesses upon whom the defendants sought to rely were transit passengers and would be difficult to trace. This, with respect, is not in conformity with the impression given by the parties. The impression one gathers from the printed record is that the transport company of the defendants cater for a fairly constant set of customers, who regularly travel by the transportation of defendants from Minna to Lagos to purchase goods for sale in Minna and that everyone seems to know every other person – passenger and transporter and that there would be no real difficulty in tracing a passenger who was really needed.
A look at paragraphs 21, 22 and 23 of the amended statement of claim of plaintiff quoted above from p. 43 of the record shows clearly that plaintiff not only base his claim on breach of contract, and the tort of negligence but also, expressly pleaded res ipsa loquitur contrary to the contentions of appellants in the appellant’s brief.
The law is settled that if there has been a proper appraisal of evidence by a trial court, a Court of Appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial court. Furthermore, if a court of trial unquestionably evaluates the evidence then it is not the business of a Court of Appeal to substitute its own views for the views of the trial court. Folorunso v. Adeyemi (1975) 1 NMLR 128; Balogun v. Agboola (1974) 10 SC 111; Awoyale v. Ogunbiyi (1986) 2 NWLR (Pt. 24) 626, (1986) 1 All NLR (Pt. 1) 371; Bunyan v. Akingboye (1999) 7 NWLR (Pt. 609) 31.
In so far as the evaluation of the evidence and the findings of fact are concerned in this case, I am convinced that the learned trial court made a proper evaluation of the evidence and made appropriate findings of fact in accordance with the injunction laid down by the Supreme Court in Mogaji and Ors. v. Odofin and Ors. (1978) 4 SC 91 at 93.
The remaining question on this issue is to ascertain whether in view of the plaintiff’s cause of action, the lower court has applied the appropriate law to the facts found on the evidence.
It is the contention of appellants that all liability of appellants are excluded by the words ‘luggages at owner’s risk’ on exhibit 5.
The first question to ask is, whether these words in exhibit 5, even if they could be held to have been properly brought to the attention of plaintiff at the time the parties entered into the contract of carriage, the same could be said to be applicable in this case, where it is now established that in addition to the normal relationship of transporter and passenger as a common carrier a specific invitation is also made to those of the passengers who had money, luggages, to deposit them for safekeeping with 1st defendant a servant of 2nd and 3rd defendants – thus, constituting the defendants as bailee, who are under a common law duty of care in respect of the packages bailed to the passengers as bailors.
It is the law that where a claim would arise from the relationship between the parties independently of the terms of the contract, an action will lie in tort at the election of the plaintiff although he might alternatively have pleaded in contract.
Hence, it has been held that a passenger under contract can recover in tort. Fagan v. Green (1926) 1 KB 102; Taylor v M.S. & L.RY(1895) 1 QB 134, 138; Broadline Ent. Ltd. v. Monterey Maritime Corp. (1995) 9 NWLR (Pt. 417) 1. See also Clerk and Lindsell on Torts, 14th Ed., p. 3, Art. 4; and HaIsbury’s Laws of England, 4th Ed., Vol. 5, p. 190, Art. 391.
As stated earlier, a careful study of the averments in paragraphs 6-8; 11-14; 19, 21, 22 and 23 of the amended statement of claim leaves one in no doubt that plaintiff not only fully pleaded facts which constitute bailment, but went further to plead negligence and reliance on the doctrine res ipsa loquitur.
The onus of proof, which lies on a party alleging negligence, is that he should establish his case by a preponderance of probabilities. This he will normally do by proving that the other party acted carelessly. Such evidence is not always forthcoming. It is possible, however, in certain cases for him, to rely on the mere fact that something happened as affording prima facie evidence of want of due care on the other’s part – ‘res ipsa loquitur’ is a principle which helps him to do so.
There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, as in this case, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care. Scott v. London & St. Katherine Docks (1865) 3 H & C 596, 601. Clerk and Lindsell ibid, Art. 975 p. 596.
In this case, as bailee of the two parcels of money which appellants agreed with respondents to take care of, at common law, appellants are under a duty of care to the plaintiff.
The law is clear that whenever goods belonging to one person are unconditionally entrusted to the care of another person for whatever purpose, whether gratuitously or for reward, on the clear understanding that the goods shall ultimately be returned to the owner, failure to do so raises a presumption of negligence against the defaulting party. In bailment therefore, the onus of proof is always on the bailee to show that the loss or damage to the goods entrusted to him occurred without negligence or default on his part.In this particular case, the plaintiff has framed his cause or causes of action appropriately and has led evidence, which on the balance of probabilities cast the onus on appellants to establish that the loss occurred in some way not involving their negligence and they would be liable, if they adduce no satisfactory explanation of how the loss occurred. Broadline Enterprises Ltd. v. Monterey Maritime Corporation (1995) 9 NWLR (Pt. 417) 1; Panalpina World Transport (Nig.) Ltd. v. N.T Wariboko (1975) 2 SC 29, (1975) All NLR 24; Ogugua v. Armel’s Transport Ltd. (1974) 3 SC 139, (1974) NSCC 169 at 172; Woolmer v. D. Price Ltd. (1955) 1 All ER 377.
In trying to offer an explanation for the loss, the appellants allege that the safe in which the parcels were kept was forcibly broken and that the parcels of plaintiff along with that of one other was removed, while those of several others in the same safe were left untouched.
The lower trial court disbelieved the evidence of appellants for good reasons stated in the judgment of the lower court.
I have no reason to think the finding perverse.
There is now left the question of whether the lower court was right to have accepted the evidence adduced by the plaintiff/respondent as to the amount of money in the parcels delivered to the defendants for safe keeping. The printed record shows that, while defendants were busy denying in the pleadings and the evidence that they received parcels from plaintiff for safe keeping, defendants offered no real serious challenge to the evidence proffered by the plaintiff and his PW2 as to the source and amount of the money in the parcels. In the event, plaintiff needed to adduce minimal evidence on this aspect of the case in proof of the damage which he has suffered.
In the circumstance, the learned trial Judge was entitled to accept the testimony on behalf of plaintiffs as well as exhibit 4 that the total amount of money handed over to 1st defendant by plaintiff for keeping in the safe of the vehicle and a return of which plaintiff was entitled was N300,000.00.
In any event, it is the law that where there is a doubt about the value of a chattel which has passed wrongfully into the possession of a defendant, the defendant must either produce it or account for its non-production, otherwise, it will be assumed against him that it was of the highest possible value – Armory v. Delamirie (1558-1774) All ER KB 121; (1721) 1 Stra. 505.In the final analysis, I resolve issue 1 set out for resolution by me in this judgment, which comprises issues 1, 3, 4, 5 and 6, set out in appellants’ brief against the appellants.
On the second issue, i.e. whether the award of general damages in the sum of N10,000.00 did not amount to double compensation (issue 2 in appellants’ brief) – the appellant submitted that having already awarded the sum of N300,000.00 in favour of the plaintiff in restitution for the sum alleged lost owing to the negligence of the defendants, the further award of N10,000.00 as general damages to the plaintiff was improper and amounted to double compensation when no basis existed for it.
Reliance is placed on Soetan v. Ogunwo (1975) All NLR 360.
‘Special damage’ is used to signify that damage, which the plaintiff must prove in negligence as part of his cause of action. However, damage of the kind which the law will presume to flow from the wrong complained of is known as ‘general damage’ and though, it should be averred that such damage has been suffered general damage need not be specially pleaded.
On the other hand, special damage in the sense of the particular damage (beyond the general damage) which results from the particular circumstances of the case for which plaintiff claims to be compensated is one for which plaintiff ought to give warning in his pleadings in order that there may be no surprise at the trial- Domsalla v. Barr. (1969) 1 WLR 630.
If a plaintiff has been fully compensated for the loss or harm suffered, the court should not award him additional damages that would look like a bonus.
In this case, the quantum of loss is certain, i.e. N300,000.00 plaintiff has been fully compensated for this amount, which he duly pleaded. The original position of plaintiff was therefore fully restored. In the event, the additional award of general damages sounds in the nature of double compensation to which plaintiff was not entitled. Thomas Kerewi v. Bisiriyu Odegbeson (1967) NMLR 89,91.
In the event, I resolve issue 2 set out in this judgment in favour of the appellant.
The third issue set out in this judgment is whether, the appellants are restricted in the time within which to appeal against the judgment of the lower court – issue No.7 in appellants’ brief.
At the end of the judgment in the lower court, the learned trial court included in the judgment liberty for either party to appeal within 30 days of the judgment.
It is the contention of appellant that section 25(2)(b) of the Court of Appeal Act, Cap. 75, Laws of the Federation of Nigeria, 1990, allows 3 months to a party to appeal against a final decision of the High Court in civil matters; and that in so far as the time statutorily allowed the parties was abridged by the order of the learned trial Judge the appellant has a ground of appeal.
In this case, judgment of the lower court was given on 16th February, 1998. In spite of the abridged time contained in the judgment, appellants filed a notice containing 10 grounds of appeal in the lower court on 23rd February, 1998 – i.e. within 7 days of the judgment.
In this court, appellant sought for and obtained leave to file three additional grounds of appeal. The additional grounds were filed on 7th October, 1998.
It is true that by statute, parties were entitled to 3 months from 16th February, 1998, to file a notice of appeal to this court, against that judgment – the judgment being a final decision in the circumstance.
I am unable to see in what way, the order of the lower court has resulted in miscarriage of justice to the defendants/appellants in the circumstance.
Neither has any allegation of miscarriage of justice been made. It seems that appellants merely wish to cling to undue technicality.
The issue appears to me in the circumstance of this case to be an academic issue which a court of law is reluctant to embark upon. Usman v. Garke (1999) 1 NWLR (Pt. 587) 466; Nkwocha v. Governor of Anambra State (1984) 1 SCNLR 634.
In the event, in accordance with well established principle of this court, I must decline to decide the point in this appeal.
Having decided issue No.2 set out in this judgment in favour of the appellants, I hold that this appeal succeeds in part.
Accordingly, I set aside that portion of the judgment of the lower court, which awarded general damage of N10,000.00 in favour of the plaintiff/respondent.
However, I affirm that portion of the said judgment, which awarded the plaintiff the sum of N300,000.00, being compensation for the loss suffered by the plaintiff on account of the negligence of defendants.
I make no order as to costs.
GEORGE ADESOLA OGUNTADE, J.C.A.: I read before now, a copy of the lead judgment, by my learned brother, Oduyemi, JCA. He has meticulously set out the relevant facts and applied to those facts, the applicable principles of law. I entirely, agree with him and adopt his reasoning as mine. I would also, make the same orders as in the lead judgment.
ZAINAB ADAMU BULKACHUWA, J.C.A.: I have read, before now, the draft of the lead judgment, just delivered by my learned brother, Oduyemi, JCA.
He has dealt with all the issues raised in the appeal and I have nothing useful to add. I agree with his reasoning in partly allowing this appeal and adopt it as mine. I abide with the consequential orders as to award of general damages and compensation. I make no orders as to costs.
Appeal allowed in part.
Ikechukwu Ezechukwu, Esq.For Appellant
Respondent not representedFor Respondent