DHL v. EZE-UZOAMAKA & ANOR (2020)

DHL v. EZE-UZOAMAKA & ANOR

(2020)LCN/14482(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, July 27, 2020

CA/L/1491/2017

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

DHL INTERNATIONAL NIGERIA LIMITED APPELANT(S)

And

1. OBIAGELI EZE-UZOAMAKA 2. IKENNA EZE-UZOAMAKA RESPONDENT(S)

RATIO

DEFINITION OF A “CONTRACT”

A contract is a legally binding agreement between two or more persons whereby rights and duties are acquired by one party in return for acts or forbearances on the part of the other, seeBest (Nig) Ltd. v. B.H (Nig) Ltd. (2011) 5 NWLR (pt. 1239) 95. The exemption clause, the effect of which constitutes the casus belli of this issue, is an essential term in that contract. It is trite law, that the parties and Courts are bound by the terms of the contracting parties. In other words, the law does not allow either the parties or the Courts to add to or subtract from terms of the contract reached by way of consensus ad idem, see Best (Nig.) Ltd. v. B. H. (Nig.) Ltd. (supra); JFS Inv. Ltd. v. Brawal Line Ltd. (2010) 19 NWLR (Pt.1225) 495; Alade v. Alic (Nig.) Ltd (2010) 19 NWLR (Pt. 1226) 111; A-G. Ferrero & Co. Ltd. v. H. C. (Nig.) Ltd (2011) 13 NWLR (Pt. 1265) 592; Nwaolisah v. Nwabufo (2011) 14 NWLR (Pt.1268) 600; UBN Plc v. Ajabule (2011) 18 NWLR (Pt. 1278); P.M. Ltd. v. The “M. v. Dancing Sister” (2012) 4 NWLR (Pt. 1289) 169; Uwah v. Akpabio (2014) 7 NWLR (Pt. 1407) 172; Idufueko v. Pfizer Products Ltd (2014) 12 NWLR (Pt.1420) 96; Lewis v. UBA Plc. (2016) 6 NWLR (Pt. 1508) 329; Cannitec Int’l Co. Ltd. v. Solel Bonech (Nig.) Ltd. (2017) 10 NWLR (Pt. 1572) 66; Oforishe v. N.G.C. Ltd. (2018) 2 NWLR (Pt. 1602) 35; Adedeji v. Obajimi (2018) 16 NWLR (Pt. 1644) 146; Okoro v. Okoro (supra); Julius Berger (Nig.) PLC v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219. PER OGBUINYA, J.C.A.

WHETHER OR NOT AN EXEMPTION CLAUSE AVAILS A PARTY THAT IS GUILTY OF A FUNDAMENTAL BREACH OF CONTRACT

It is settled law, that an exemption clause does not avail a party that is guilty of a fundamental breach of contract save that party is made aware or it is intended/provided in the contract, see Narumal & Sons Nig. Ltd. v. Niger Benue Transport Co. Ltd., (supra) Akinsanya v. UBA (1986) 4 NWLR (Pt. 35) 273; IMNL v. Pegofor Ind. Ltd. (supra); Eagle Superpack (Nig.) Ltd. v. ACB Plc (2006) 19 NWLR (Pt. 1013) 20. A breach of contract occurs when a party to the contract, without any lawful justification/excuse, fails, neglects or refuses to perform his obligations under the contract or incapacitates himself from performing same or in a way backs down from carrying out a material term, see Adeoti v. Ayorinde (2001) 6 NWLR (Pt. 709) 336; Best (Nig.) Ltd. v. B.H (Nig.) Ltd (supra).
A fundamental breach of contract denotes ”a performance totally different from that which the contract contemplated or a breach of contract more serious than one which would entitle the other party merely to damages and which at least would entitle him to refuse further performance of the contract, see IMNL v. Pegofor Ind. Ltd. (supra), at page 18, per Edozie, JSC. Thus, a fundamental breach is a violation of a material term of contract which goes to the root of the contract and gives the innocent party the right to treat the contract as extinguished or at an end, see Yadis (Nig) Ltd. v. G.N.I.C Ltd. (2007) 14 NWLR (Pt. 1055) 584; Best (Nig.) Ltd. v. B.H. (Nig.) Ltd. (supra); Nidocco Ltd. v. Gbajabiamila (2013) 15 NWLR (Pt. 1374) 350. PER OGBUINYA, J.C.A.

WHETHER OR NOT A COURT HAS JURISDICTION TO ACT ON AN INADMISSIBLE EVIDENCE

A Court of law is drained of the jurisdiction to act on an inadmissible evidence in reaching a decision, see Alade v. Olukade (1976) 2 SC 183; IBWA v. Imano Ltd. (2001) 3 SCNJ 160; Durosaro v. Ayorinde (2005) 8 NWLR (Pt. 927) 407; Namsoh v. State (1993) 5 NWLR (Pt. 292) 129; Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307; Abubakar v. Chuks (2007) 18 NWLR (Pt. 1066) 389; Phillips v. E.O.C. & Ind. Co. Ltd. (2013) 1 NWLR (Pt. 1336) 618; Nwaogu v. Atuma (2013) 11 NWLR (Pt. 1364) 117. PER OGBUINYA, J.C.A.

DEFINITION OF “NEGLIGENCE”

Negligence, in law, connotes an omission or failure to do something which a reasonable man, under the same circumstance, would do or doing of something which a reasonable and prudent man would not do, seeOdinaka v. Moghalu (1992) 4 NWLR (Pt. 233) 1; Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307; Diamond Bank Ltd. v. P.I.C Ltd. (2009) 18 NWLR (Pt. 1172) 67; Ighreriniovo v. S.C.C. (Nig.) Ltd. (2013) 10 NWLR (Pt. 1361) 138; Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173; Okwejiminor v. Gbakeji (supra); Hamza v. Kure (2010) 10 NWLR (Pt. 1203) 630.
Negligence is a question of fact, not law, so that each case has to be decided on its peculiar facts, see S.B.N. v. Motor Parts Installation Ltd. (2005) All FWLR (Pt. 260) 103; African Petroleum v. Soyemi (2008) All FWLR (Pt. 397) 117; F.A.A.N. v. W.E.S. (Nig.) Ltd. (2011) 8 NWLR (Pt. 1249); Diamond Bank Ltd. v. P.I.C. Ltd. (supra); Royal Ade (Nig) Ltd. v. N.O.C.M. Co Ltd. (supra); A.B.C. Transport Co. Ltd. v. Omotoye (2019) 14 NWLR (Pt. 1692) 1971.

In Donoghue v. Stevenson (1932) AC 562/(2002) 12 WRN 10, the locus classicus on negligence, the erstwhile House of Lords evolved three ingredients of negligence, which a plaintiff must establish, thus: that the defendant owed him a duty of care, that there was a breach of the duty and that the breach caused him injury or damage. These three ingredients have since been accepted and assimilated in the Nigerian jurisprudence, see Agbonmagbe Bank Ltd. v. CFAO (1967) NWLR 173; FBN Plc. v. Associated Motors Co. Ltd, (1998) 10 NWLR (Pt. 570) 441; Abubakar v. Joseph (supra); Iyere v. B.F.M. Ltd. (2008) 18 NWLR (Pt. 1119) 300; Diamond Bank Ltd. v. P.I.C. Ltd. (supra); Ighreriniovo v. S.C.C. (Nig.) Ltd. (supra); Royal Ade (Nig.) Ltd. v. N.O.C.M. Co Plc (supra); Makwe v. Nwukor (supra); Abusomwan v. Mercantile Bank Ltd. (supra); A.B.C. Transport Co. Ltd. v. Omotoye (supra); British Airways v. Atoyebi (2014) 13 NWLR (Pt. 1424) 253. PER OGBUINYA, J.C.A.

DEFINITION OF “GENERAL DAMAGES”

General damages are those damages that the law presumes as flowing from the wrong complained of by the victim. They need not be specifically pleaded and strictly proved, see U.B.N. Plc v. Ajabule (2011) 18 NWLR (Pt. 1278) 152; Neka B.B.B. Mfg. Co. Ltd. v. A.C.B. Ltd. (supra); Ajigbotosho v. R.C.C. Ltd. (2019) 3 NWLR (Pt. 1659) 289; UBN Plc v. Nwankwo (2019) 3 NWLR (Pt. 1660) 474; Ibrahim v. Obaje (2019) 3 NWLR (Pt. 1160) 389; Onyiorah v. Onyiorah (2019) 15 NWLR (Pt. 1695) 227. It is at the discretion of the Court to award general damages, see Cameroon Airlines v. Otutuizu (supra); Ahmed v. CBN (2013) 2 NWLR (Pt. 1339); Unity Bank Plc v. Ahmed (2020) 1 NWLR (Pt. 1705) 364. PER OGBUINYA, J.C.A.

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal is an offspring of the decision of the High Court of Lagos State, holden at Lagos (hereinafter addressed as “the lower Court), coram judice: Adenike J. Coker, J., in Suit No. LD/6382/2014, delivered on 11th July, 2017. Before the lower Court, the appellant and the respondents were the defendant and the claimants respectively.

The facts of the case, which transmuted into the appeal, are amenable to brevity and simplicity. The appellant is an incorporated courier company that carries on the business of courier services on national and transnational levels. On 16th May, 2011, the first respondent, the wife of the second respondent, entered into a contract of carriage of the second respondent’s two passports, one valid and one expired, with the appellant at its office at Akin Adesola Street, Victoria island, Lagos. The two passports, enclosed/encased in a parcel, were to be delivered to the second respondent, at No. 2 Mabola Close, off Mabolo Street, Wuse, Abuja, within twenty four (24) hours. The first respondent paid the sum of N4,935.00 (Four Thousand Nine Hundred

and Thirty Five Naira) to the appellant which issued her with a shipment airway bill. The appellant failed to deliver the passports within the agreed time and, in addition, they were lost in transit. The second respondent alleged that he suffered serious financial losses, emotional losses and stress on account of the non-delivery and loss of the passports. Sequel to that, the respondents beseeched the lower Court, via a writ of summons filed on 15th August, 2014, and tabled against the appellant the following reliefs:
1. A Declaration that the failure of the Defendant to deliver the said passport to the 2nd Claimant in time as agreed upon constitutes a fundamental breach of the contract.
2. A Declaration that the loss of the said passport is a fundamental breach of the contract.
3. A Declaration that the Defendant is not entitled to an exemption clause when there is an apparent fundamental breach of the contract.
4. A Declaration that the Defendant was negligent in the performance of its duties under the contract.
5. A declaration that the exemption clause as contained in the Airway Bill issued the Claimant does not cover cases of negligence.

The sum of 20,000,000.00 (Twenty Million Naira) only as general and aggravated damages for breach of contract.
7. The sum of 2, 000,000.00 (Two Million Naira) only as cost of litigation.

In reaction, upon service of the processes on it, the appellant joined issue with the respondents and denied liability by filing a statement of defence.

Following the discordant claims, the lower Court had a full-scale determination of the case. In proof of the case, the respondents testified in persons, as CW1 and CW2, and tendered some documentary evidence – Exhibits C1-C5. In disproof of the case, the appellant fielded two witnesses, DW1 and DW2, and tendered a documentary evidence-Exhibit D1. At the closure of evidence, the parties addressed the lower Court in the manner required by law. In a considered judgment, delivered on 11th July, 2017, found at pages 197-270 of the record, the lower Court granted the respondents’ claim.

The appellant was dissatisfied with the decision. Hence, on 20th July, 2017, the appellant lodged a 4-ground notice of appeal, which is copied at pages 221-226 of the record, wherein it prayed this Court:

To allow the appeal
ii. To set aside the decision of the lower Court and dismiss the claims of the Respondents.

Thereafter, the parties, through counsel, filed and exchanged their respective briefs of argument in line with the procedure governing the hearing of civil appeals in this Court. The appeal was heard on 25th June, 2020.

During its hearing, learned appellant’s counsel Abiola Tella Esq., adopted the appellant’s brief of argument, filed on 8th June, 2018, but deemed properly filed on 25th February, 2019, and the appellant’s reply brief, filed on 15th March, 209 but deemed properly filed on 25th June, 2020, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned respondents’ counsel, Tochukwu Onyiuke, Esq., adopted the respondents’ brief of argument, filed on 7th August, 2018 but deemed properly filed on 25th February, 2019, as forming his reactions against the appeal. He urged the Court to dismiss it.

In the appellant’s brief of argument, learned counsel distilled three issues for determination to wit:
i. Whether the Trial Court was right

to have denied the Appellant the protection afforded by the exemption clause contained in the contract mutually entered into by the parties on the premise that the Appellant was in fundamental breach of the contract?
ii. Whether the Trial Court was right to have held that the Appellant was negligent and liable under the tortuous principle of res ipsa liquitor? and
iii. Whether the Respondents were entitled to the award of damages and cost granted by the Court in view of existing principles governing the award of general damages and cost against the Appellant?

In the respondents’ brief of argument, learned counsel crafted two issues for determination, viz:
1. Whether the lower Court was right when it entered judgment in favour of the Respondents?
2. Whether the Respondents were entitled to the award of damages and cost as awarded by the lower Court?

A close look at the two sets of issues shows that they are identical in substance. In fact, the respondents’ issues can be conveniently subsumed under the appellant’s. For this reason of sameness, I will decide the appeal on the issues nominated by the

appellant: the undoubted owner of the appeal.

Arguments on the issues:
Issue one
Learned appellants’ counsel submitted that the first respondent was bound the exemption clause, in Exhibit C1/D1, as a term of contract. He relied on Oforishe v. Nigerian Gas Co. Ltd. (2017) LPELR-42766 (SC); Isheno v. Julius Berger (Nig.) Plc (2008) 6 NWLR (Pt. 1084) 582. He stated that neither parties nor Court would read another term into mutual agreement. He cited Agbareh v. Mimra (2008) LPELR-235 (SC); Section 128 of the Evidence Act, 2011; Wema Bank Plc v. Osilaru(2008) 10 NWLR (Pt. 1094) 150; UBA Plc v. Comrade Cycle Ltd. (2013) LPELR-20737 (CA). He reproduced and analysed the contents of Exhibit C1/D1 and maintained that the terms therein were binding on the parties and the Courts. Counsel opined that the lower Court wrongly suo motu created another contract for the parties contrary to the law. He referred to Itedjere v. Oharisi (2007) All FWLR (Pt. 384) 347; Amede v. UBA (2018) 8 NWLR (Pt. 1090) 628. He explained that fundamental breach would not be an excerption to exemption clause (as in clause of Exhibit C1/D1, except the parties so intended.

He cited Narumal & Sons Nig. Ltd. v. Niger Benue Transport Co.Ltd (1989) 2 NWLR (Pt. 106) 730; IMNL v. Pegofor Industries Ltd. (2005) 15 NWLR (Pt. 947) 1. He insisted that the parties agreed to be bound in the terms in Exhibit CI/D1. He asserted that the appellant was not bound to bring the terms in Exhibit C1/D1 to the attention of the first respondent. He referred to Chilty on Contract, 31st Edition, page 914; Parker v. South Eastern Ry (1877) 2 CPD, 416, 421, 423.

For the respondents, learned counsel argued that the second respondent was not bound by exhibits C1/D1. He citedUBA Plc v. Jargaba (2007) 11 NWLR (Pt. 1045) 247. He stated that the terms in Exhibit D1 would not apply to cases of negligence. He referred to Chilty on Contract, Volume 1, General Principles Thompson Sweet & Maxwell at para. 14-010 Chapter 14. He explained the three prepositions involved in consideration of exemption clauses as dealt inCanada Steamship Lines Ltd. v. The King (1952) AC 192; Gillespie Brothers Ltd. v. Roy Bowles Transport Ltd. (1973) Q.B. 400; Smith v. Smith Wales Switehgear Co. Ltd. (1978) 1 WLR 165; Forbes, Abbot & Lennard Ltd. v. G.W Ry (1927) 44

T.L.R.07; James Archadale & Co. Ltd. v. Comservices Ltd. (1954) 1 WLR 459; Price v. Union Lighterage Co. (1904) 1 KB 412. He asserted that exemption clause would apply where there was fundamental breach of contract where contract specifically stated so. He cited Sussue Atalntique Societe D’Armement Maritime S.A. v. V.V. Rotterdamsche Kollen Centrale (1966) 2 All ER 61; Curnard S.S. Co. Ltd. v. Buerger (1926) All ER Rep. 103; London & North Western Ry. Co. v. Neilson (1922) ER Rep. 395; Lilley v. Doubleday (1881) 7 Q.B 510. He took the view that those English cases would apply in the absence of local legislations. He referred to Section 32 of the Interpretation Act, Cap I 23, Laws of the Federation of Nigeria, 2004; Ude v. Nwara (1993) 2 NWLR (Pt. 278) 638.

Learned counsel submitted that exemption clause would not apply where there was a fundamental breach of contract. He cited IMNL v. Pegofor Industries Ltd. (supra); Eagle Super pack (Nig.) Ltd. v. ACB Plc (2006) 19 NWLR (Pt. 1013) 20; UBN Plc v. Omniproducts (Nig.) Ltd. (2006) 15 NWLR (Pt. 1003) 660. He explained that the exemption clause was not shown to the first respondent. He stated

that the evidence on the point was hearsay and inadmissible. He cited Section 38 of the Evidence Act, 2011. He conceded that parties are bound by the terms of their contract. He said that Exhibit D should be given its literal meaning and exclude things unmentioned therein.

On points of law, learned appellant’s counsel posited that it was proved that the exemption clause was made known to the first respondent. He referred to the cross-examination of the first respondent.

Issue two.
Learned appellant’s counsel contended that the lower Court caused a miscarriage of justice when it held that the principle of re ipsa loquitur applied to the case. He noted that the appellant showed it was not negligent. He said that recipient of the passports was not the second respondent as shown in Exhibit C1/D1 and that the respondents contributed to the negligence. He enumerated the situations for the application of res ipsa loquitor as noted in Osigwe v. Unipetrol (2004) LPELR-7431 (CA); Management Enterprises Nig. Ltd. v. Otusanya (1987) LPELR-1834 (SC). He concluded that the lower Court was wrong in holding that it was negligent and the principle of

res ipsa loquitor applied.

On behalf of the respondents, learned counsel submitted that where there was no privity of contract a party would be liable in tort. He relied on Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172; Makwe v. Nwukor (2001) 14 NWLR (Pt. 733) 356; Abusomwan v. Mercantile Bank Ltd. (1987) 3 NWLR (Pt. 60) 197. He noted that Exhibit C3 showed that the passports were those of the second respondent and the appellant had a duty of care to him. He said the appellant was negligent and there was no specific denial of it as required by law. He cited P.I.P.C.S Ltd. v. Vlachos (2008) 4 NWLR (pt. 1076) 1; Tsemudiara v. Messrs F.G.S. & Co. Ltd. (2008) 7 NWLR (1085) 84; Tsemudiara v. Messers F.G.S.& Co. Ltd (2008) 7 NWLR (Pt. 1085) 84; FBI v. I.D.S Ltd. (2009) 8 NWLR (Pt. 1144) 615. He stated the meaning of negligence as noted in Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173. He reasoned that there was prima facie case of negligence against the appellant as shown in evidence. He relied on IMNL v. Tawose (2004) 11 NWLR (Pt. 884) 285. He persisted that the appellant never gave contrary evidence of negligence which consisted failure of duty of

care. He referred toNEPA v. Auwal (2011) 5 NWLR (Pt. 1241) 572. He listed the situations for the application of res ipsa loquitur. He referred to P.S.H.S.M.B v. Goshwe (2013) 2 NWLR (Pt. 1338) 383; Royal Ade (Nig.) Ltd. v. N.O.M.C.M. Co. Plc. (2004) 8 NWLR (Pt. 874) 206. He claimed that the respondents proved the ingredients. He citedIMNL v. Pegofor Industries Ltd. (supra). He said that the appellant never showed how the passports got lost and the lower Court would not speculate. He relied on Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 55.

On points of law, learned appellant’s counsel submitted that it specifically denied being negligent as required by law. He relied onMeridien Trade Corp. Ltd. v. Metal Construction (W.A.) Ltd. (1998) LPELR-1862 (SC); Ajao v. Alao (1986) 5 NWLR (Pt. 45) 802; Eze v. Okoloagu (sic) no citation).

Issue three.
Learned appellant’s counsel argued that the lower Court was wrong in the award of general damages of N10m. He enumerated the general principles governing award of damages in contract. He relied on British Airways v. Atoyebi (2014) 13 NWLR (Pt. 1424) 253; IMNL v. Pegofor (supra); Emirates Arline v. Ngonadi

(2013) LPELR-22053 (CA); Inyang v. Ekpe (2009) LPELR-8086 (CA). He claimed that the respondents did not show costs of replacing the lost passports. He stated that damages for stress and inconvenience are not awarded in contract. He cited British Airways v. Atoyebi (supra).

Learned counsel posited that the lower Court wrongly exercised its discretion in the award of costs of N1m against the appellant. He observed that there was no materials and evidence before the lower Court to make it award the cost.

On the part of the respondents, learned counsel submitted that the respondents were entitled to general damages as the appellant violated their rights in contract and negligence. He cited Zenon Petroleum & Gas v. Idrisiyya Ltd. (2006) 8 NWLR (Pt. 982) 221; Ubi jus ibi remedium; BFI Group Corporation v. B.P.E. (2012) 18 NWLR (Pt. 1332) 209. He explained the nature of general damages. He relied on UTB (Nig.) Ltd. v. Ajagbule (2006) 2 NWLR (Pt. 965) 447; Mainstreet Bank Regt. Ltd. v. Anselem (2015) 16 NWLR (pt. 1486) 443; CBN v. Okojie (2015) 14 NWLR (Pt. 1479) 231. He pointed out that the lower Court exercised its discretion properly so that

this Court would not interfere with it.

Learned counsel postulated that the appeal against cost was incompetent because it was without leave. He cited Oketade v. Adewunmi (2010) 8 NWLR (Pt. 1195) 63. He claimed, in the alternative, that an appellate Court would not interfere with the discretion of the lower Court to award costs as provided in its Rules. He referred to Adim v. NBC (Ltd.) (2010) 9 NWLR (Pt. 1200) 543; Oketade v. Adewunmi (supra); Order 49 Rules 1 (1) (a) and 7 of the High Court of Lagos State (Civil Procedure) Rules, 2012 (the High Court Rules).

On points of law, learned appellant’s counsel argued that leave was not required to appeal against the cost because it was part of the judgment. He relied on Section 241 (1) (a) of the Constitution, as amended; Iwueke v. Imo Broadcasting Corp. (2005) 10 SC 19; Amoloja v. Ife Co-operative Produce Marketing Union Ltd. (2016) LPELR-41335 (CA); Council of Yabatech v. Awoniyi (2016) LPELR-41393 (CA). He concluded that the cost was a final judgment.

Resolution of the issues.
It is germane to place on record, upfront, that a galaxy of documentary evidence were furnished before the

lower Court by the feuding parties. Interestingly, the case law gives the Courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi(2004) 17 NWLR (Pt. 903) 544. Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this Court and the lower Court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yorin (2011) 10 NWLR (Pt. 1254) 135; Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuraike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Emeka v. Okafor (2017) 11 NWLR (Pt. 1577); 410; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652); Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1667) 36. I will tap from this co-ordinate jurisdiction in the appraisal of the army of

documents in the appeal. Having been adequately fortified by the above position of the law, I will proceed to resolve the three nagging issues in this appeal.

For the sake of orderliness, I will attend to the issues in their numerical sequence of presentation by the parties. To this end, I will kick start with the treatment of issue one. The marrow of the issue is not a moot point. It queries the lower Court’s finding on exemption clause that formed an integral part of the contract between the parties.
To begin with, the warring parties are consensus ad idem that there was a contract, anchored on shipment of parcel, between the appellant and the first respondent. A contract is a legally binding agreement between two or more persons whereby rights and duties are acquired by one party in return for acts or forbearances on the part of the other, seeBest (Nig) Ltd. v. B.H (Nig) Ltd. (2011) 5 NWLR (pt. 1239) 95. The exemption clause, the effect of which constitutes the casus belli of this issue, is an essential term in that contract. It is trite law, that the parties and Courts are bound by the terms of the contracting parties. In other words, the

law does not allow either the parties or the Courts to add to or subtract from terms of the contract reached by way of consensus ad idem, see Best (Nig.) Ltd. v. B. H. (Nig.) Ltd. (supra); JFS Inv. Ltd. v. Brawal Line Ltd. (2010) 19 NWLR (Pt.1225) 495; Alade v. Alic (Nig.) Ltd (2010) 19 NWLR (Pt. 1226) 111; A-G. Ferrero & Co. Ltd. v. H. C. (Nig.) Ltd (2011) 13 NWLR (Pt. 1265) 592; Nwaolisah v. Nwabufo (2011) 14 NWLR (Pt.1268) 600; UBN Plc v. Ajabule (2011) 18 NWLR (Pt. 1278); P.M. Ltd. v. The “M. v. Dancing Sister” (2012) 4 NWLR (Pt. 1289) 169; Uwah v. Akpabio (2014) 7 NWLR (Pt. 1407) 172; Idufueko v. Pfizer Products Ltd (2014) 12 NWLR (Pt.1420) 96; Lewis v. UBA Plc. (2016) 6 NWLR (Pt. 1508) 329; Cannitec Int’l Co. Ltd. v. Solel Bonech (Nig.) Ltd. (2017) 10 NWLR (Pt. 1572) 66; Oforishe v. N.G.C. Ltd. (2018) 2 NWLR (Pt. 1602) 35; Adedeji v. Obajimi (2018) 16 NWLR (Pt. 1644) 146; Okoro v. Okoro (supra); Julius Berger (Nig.) PLC v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219.
Now, the kernel of the appellant’s chief grievance, indeed its only trump card on the issue, is that the lower Court disfavoured it with the protection of the exemption

clause which is warehoused the Airway Bill: Exhibit C1/D1. It admits of no argument that the Airway Bill, Exhibit C1/D1, falls within the wide four walls of a document in that its contents are “expressed or described upon any substance by means of letters, figures or marks”, Section 258 of the Evidence Act, 2011. Nota bene, the law grants to the Courts the unbridled licence to read a document holistically so as to reach and garner harmonious results of its content, see Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377/(1987) SCNJ 98; Unilife Dev. Co. Ltd. v. Adeshigbin (2001) 4 NWLR (Pt. 707) 482; ACB v. Apugo (2001) 5 NWLR (Pt. 707) 482; Mbani v. Bosi (2006) 11 NWLR (Pt. 991) 400; Bunge v. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573; Agbareh v. Mimra (2008)2 NWLR (Pt. 1071) 378; Nigerian Army v. Aminu-Kano (2010) 5 NWLR (Pt. 1188) 429; BFI Group v. BPE (2012) 18 NWLR (Pt. 1332) 209; Julius Berger Nig. PLC. v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219. In addition, in construing a document, the Court is enjoined by law to apply the literal rule as a canon of interpretation, id est, to accord the words employed therein their ordinary grammatical

meaning without any embellishments, see UBN v. Ozigi (1994) 3 NWLR (Pt. 333) 385, UBN Ltd. v. Sax (Nig.) Ltd. (1994) 8 NWLR (Pt. 361) 150; Enilolobo v. N.P.D.C. Ltd. (2019) 18 NWLR (Pt. 1703) 168. I will pay due obeisance to these canons of interpretation of document in order not to offend the law.
It is foremost to appreciate the import of exemption clause. It is: “A contractual provision providing that a party will not be liable for damages for which that party would have ordinarily been liable” see Bryan A. Garnner, Black’s Law Dictionary, 8th Edition (U.S.A, West Publishing Co., 2004) 612. It wears/bears other interchangeable appellations, videlicet: Exception, Exculpatory or Exclusion clause. The case-law has ordained a limitation clause, which limits liability, as a specie of the genus of exemption clause, see IMNL v. Pegofor Ind. Ltd. (2005) 15 NWLR (Pt. 947) 1. It is settled law, that an exemption clause does not avail a party that is guilty of a fundamental breach of contract save that party is made aware or it is intended/provided in the contract, see Narumal & Sons Nig. Ltd. v. Niger Benue Transport Co. Ltd., (supra)

Akinsanya v. UBA (1986) 4 NWLR (Pt. 35) 273; IMNL v. Pegofor Ind. Ltd. (supra); Eagle Superpack (Nig.) Ltd. v. ACB Plc (2006) 19 NWLR (Pt. 1013) 20. A breach of contract occurs when a party to the contract, without any lawful justification/excuse, fails, neglects or refuses to perform his obligations under the contract or incapacitates himself from performing same or in a way backs down from carrying out a material term, see Adeoti v. Ayorinde (2001) 6 NWLR (Pt. 709) 336; Best (Nig.) Ltd. v. B.H (Nig.) Ltd (supra).
A fundamental breach of contract denotes ”a performance totally different from that which the contract contemplated or a breach of contract more serious than one which would entitle the other party merely to damages and which at least would entitle him to refuse further performance of the contract, see IMNL v. Pegofor Ind. Ltd. (supra), at page 18, per Edozie, JSC. Thus, a fundamental breach is a violation of a material term of contract which goes to the root of the contract and gives the innocent party the right to treat the contract as extinguished or at an end, see Yadis (Nig) Ltd. v. G.N.I.C Ltd. (2007) 14 NWLR (Pt. 1055) 584;

Best (Nig.) Ltd. v. B.H. (Nig.) Ltd. (supra); Nidocco Ltd. v. Gbajabiamila (2013) 15 NWLR (Pt. 1374) 350.
The appellant erected its case/defence on clause 6 of Exhibit C1/D1. Being the cynosure of the issue, it is imperative to scoop it up from the exhibit, where it is domiciled, ipsissima verba, as follows:
“DHL CONTRACTS WITH Shipper ON the basis that DHL’s liability is strictly limited to direct loss only and to the per kilo/Ib limit in this Section 6. All other types of loss or damage are excluded (including but not limited to lost profits, income, interest, future business), whether such loss or damage is special or indirect, and even if the risk of such loss or damage was brought to DHL’s attention before or after the shipment since special risks can be insured by the Shipper. If a shipman combines carriage by air, road, or other modes of transport, it shall be presumed that any loss or damaged occurred during the air period of such carnage unless proven otherwise. DHL’s liability in respect of any one shipment transported, without prejudice to Sections 7 -11 is limited to its actual cash value and shall not exceed the greater of

US$ 100 or USS 20.00/kilogram or US$ 9,07/kilogram for shipments transported by air or other non-road mode of transportation, or USS 10.00/kilogram or US$ 4.54/kilogram for shipments transported by road (not applicable to the US).
Claims are limited to one claim per shipment settlement of which will be full and final settlement for all loss or damage in connection therewith. If shipper regards these limits as insufficient it must make a special declaration of value and request insurance as described in Section 8 (Shipment Insurance) or make its own insurance arrangements, failing which shipper assumes all risk of loss and damage.”
This clause, even though windy, is rebellious to equivocation. It is a classic exemplification of limitation clause which is housed in the exemption clauses. In absolute loyalty to the dictate of the law, I will deploy the literal rule of interpretation of documents to the construction of the said clause 6. In this wise, I have given a clinical examination to its content. I am unable to find, even with the prying eagle eye of a Court, where it provides that it serves as notice or notification of

limitation of liability to a customer shipper. The corrosive effect of the absence of such notice is plain. It is not intended to give exemption to the appellant in circumstance of fundamental breach.
Besides, I have consulted the record; the touchstone of the appeal. My port of call are the residences of the appellant’s statement of defence and statements on oath of its witnesses which colonise pages 49-53 and 55-64 of the record respectively, I have perused them with the finery of a tooth comb. Admirably, they are submissive to easy comprehension. On the knotty point in issue, the evidence of DW1 and DW2, as encapsulated in their statements on oath which transfigured into their examination-in-chief, are obedient to clarity. Their testimonies are mirror image of their pleadings on the vexed point. They are to the effect that the appellant’s Customer Service Adviser, one Kolade Olushola, who attended to the first respondent, explained the terms in the placard and Airway Bill, Exhibit C1/D1, and the provision on insurance to the first respondent, the customer shipper. Curiously, there was/is no piece of evidence bordering on the limitation of

liability clause in Exhibit C1/D1. It is a costly failure. The void/lacunae in the evidence has far-reaching consequence. The limitation of liability clause, which cried to arrest the attention of the first respondent, was not explained to her. The net effect is obvious. The appellant, through their star witnesses, starved the lower Court of the concrete and critical evidence on making the first respondent customer aware of the existential limitation liability clause in Exhibit C1/D1. That constitutes a serious coup de grace in the appellant’s case. This, with due reverence, punctures the learned appellant’s counsel’s alluring argument on the point.
That is not all. In order to castrate the appellant’s claim on the point, the respondents’ branded the evidence on the point as inadmissible hearsay. In our adjectival law, a witness is expected to testify on oath, or affirmation, on what he knows personally. Where a witness gives evidence on what another person told him about events, then it is not direct evidence which has acquired the nickname; hearsay or second hand evidence. In the view of the law, hearsay evidence can only

be used to inform a Court about what a witness heard another say and not establish the truth of an event, see Section 37, 38 and 126 of the Evidence Act, 2011; (former Section 77 of the Evidence Act, 2004); Doma v. INEC (2012) 13 NWLR (Pt. 1317) 297; Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391; Kakih v. PDP (2014) 15 NWLR (Pt. 1430) 374; Ikpeazu v. Otti (2016) 8 NWLR (Pt. 1513) 38, Opara v A. -G. Fed. (2017) 9 NWLR (Pt. 1569) 61.
It is decipherable from the record, the bedrock of the appeal, that the appellant’s DW1 and DW1 were Joseph Ilorah and Adetokunbo Ademuyiwa: the national Security Manager and Customer Service Department of the appellant respectively. Neither of them was the Kolade Olushola, who attended to the first respondent at the locus contractus, but was not fielded as a witness. The caustic effect of this is plain. The conjoined evidence of the DW1 and DW2, that Kolade Olushola drew the first respondent’s attention to the limitation of liability clause is disabled from its birth. It is mired in the intractable swamp of inadmissible evidence. In that prostrate state, the evidence was/is worthless to the appellant vis-à-vis

the notification of the exculpatory clause to the first respondent. The reason is not far-fetched. A Court of law is drained of the jurisdiction to act on an inadmissible evidence in reaching a decision, see Alade v. Olukade (1976) 2 SC 183; IBWA v. Imano Ltd. (2001) 3 SCNJ 160; Durosaro v. Ayorinde (2005) 8 NWLR (Pt. 927) 407; Namsoh v. State (1993) 5 NWLR (Pt. 292) 129; Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307; Abubakar v. Chuks (2007) 18 NWLR (Pt. 1066) 389; Phillips v. E.O.C. & Ind. Co. Ltd. (2013) 1 NWLR (Pt. 1336) 618; Nwaogu v. Atuma (2013) 11 NWLR (Pt. 1364) 117. The lower Court paid due respect to the law when it did not employ the inadmissible evidence as a passport to favour the appellant with a notification of the clause to the first respondent.
There is a confluence point between the parties. It is that the appellant did not deliver the parcel, containing two international passports of the second respondent, to the agreed destination in Abuja. It is also a common ground that the parcel got lost in transit up until date. Indisputably, the delivery of the parcel is the substratum and material term of the shipment contract.

The appellant’s failure to convey it to the owner, the second respondent, and its misplacement was totally outside the contemplation of parties and, ipso facto, a fundamental breach of the contract, see IMNL v. Pegofor Ind. Ltd. (supra); ABC transport Co. Ltd. v. Omotoye (2019) 14 NWLR (Pt. 1692) 197. The contract breach, a fortiori the fundamental breach, is against the letter and spirit of the terms of the contract. As already noted, parties to a contract are, will-nilly, bound to accomplish the terms of their contract. Thus, in the absence of mistake, fraud, deception or misrepresentation, a party must obey his terms of his contract whether they are favourable, gainful, beneficial or disfavourable or hostile to his interest. In the Latin days of the law, it was couched in the abridged maxim: Pacta sunt servanda-contracts that are not illegal or fraudulent must be observed, seeA-G., Rivers State v. A-G., Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 31. Amazingly, the appellant treated the material terms of the shipment contract with disdain and contempt. Its conduct, totally, deflated the whole essence of sanctity of contract.
The lower Court, at page

219, lines 7-4, of the record, found and proclaimed:
Therefore, …this Court having found above that the Defendant has not satisfactorily discharged the onus of proof on them that the 1st Claimant was made aware of the exemption clause in the face of her denial, and having found the Defendant was negligent in the handling and loss of the shipment, this Court can only find further that from the peculiar facts and circumstances of this case, the above exemption clause cannot avail this Defendant herein.
Having regard to the legal anatomy on exemption clause, done in due consultation with the law, the lower Court’s declaration is immaculate. It is faultless. On this premise, all the diatribes, which the appellant contrived and unleashed against it, are idle and peter into insignificance. It will smell of judicial sacrilege to tinker with a finding that is not injurious to the law. In the end, I am left with no option than to resolve the issue one against the appellant and in favour of the respondents.

Having dispensed with issue one, I proceed to settle issue two. The heart of the issue is pain. It chastises the lower

Court’s finding on negligence against the appellant.

By way of prefatory remarks, it is important to understand the purport and attributes of negligence. Negligence, in law, connotes an omission or failure to do something which a reasonable man, under the same circumstance, would do or doing of something which a reasonable and prudent man would not do, seeOdinaka v. Moghalu (1992) 4 NWLR (Pt. 233) 1; Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307; Diamond Bank Ltd. v. P.I.C Ltd. (2009) 18 NWLR (Pt. 1172) 67; Ighreriniovo v. S.C.C. (Nig.) Ltd. (2013) 10 NWLR (Pt. 1361) 138; Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173; Okwejiminor v. Gbakeji (supra); Hamza v. Kure (2010) 10 NWLR (Pt. 1203) 630.
Negligence is a question of fact, not law, so that each case has to be decided on its peculiar facts, see S.B.N. v. Motor Parts Installation Ltd. (2005) All FWLR (Pt. 260) 103; African Petroleum v. Soyemi (2008) All FWLR (Pt. 397) 117; F.A.A.N. v. W.E.S. (Nig.) Ltd. (2011) 8 NWLR (Pt. 1249); Diamond Bank Ltd. v. P.I.C. Ltd. (supra); Royal Ade (Nig) Ltd. v. N.O.C.M. Co Ltd. (supra); A.B.C. Transport Co. Ltd. v. Omotoye (2019) 14 NWLR (Pt. 1692) 1971.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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is hedged on the rule of evidence affecting the onus of proof. It merely raises the rebuttable presumption of negligence against a defendant. A party’s, usually a claimant’s, reliance on it is an undiluted concession that he has no direct and affirmative evidence of the complained negligence against a defendant, but that surrounding circumstances, amply, establish such negligence. The doctrine comes into operation: (1) on proof of happening of an unexplained occurrence; (2) when the occurrence is one which would not have happened in the ordinary course of things without negligence on the part of somebody other than the plaintiff; and (3) the circumstances point to the negligence in question being that of the defendant rather than that of any other person. Put conversely, the doctrine is lame: (a) the facts proved are equally consistent with accident as with negligence; (b) there is evidence of how the accident happened and the difficulty arises merely from an inability to apportion blame between two negligent persons. See Mgt. Ent. Ltd. v. Otusanya (1987) 2 NWLR (Pt. 55) 179; Royal Ade (Nig) Ltd. v. N.O. C.M Co Plc (supra); Ojo v. Gharoro (supra);

Abubakar v. Joseph (supra); Iyere v. B.F. F.M Ltd. (supra).
In total fidelity to the desire of the law, I have situated the finding of the lower Court, which is in the heat of extermination, with the elements of negligence, qua res ipsa loquitur, displayed above. The raison d’etre for the juxtaposition is simple. It is to ascertain whether the finding is obedient or rebellious to the law.

A duty of care can be imposed by law or created by contract or trust, see IMNL v. Nwachukwu (2004) 13 NWLR (Pt. 891) 543. To start with, the first respondent was the shipper in the shipment contract with the appellant. By the agreement, the appellant undertook to render its services to deliver the parcel to the recipient. The owner of the content of the parcel, two passports, is the second respondent as disclosed in Exhibit C: an indelible, permanent and incorruptible documentary evidence. Thus, the second respondent is the ultimate consumer of the appellant’s delivery services. It stems from these relationships, typified in proximity and neighbourhood, that the appellant had a duty of care towards the respondents vis-a-vis the delivery of the parcel.

It is axiomatic that the bounden duty was infringed when the parcel was not delivered but got missed in transit. The second respondent alleged that he suffered emotional distress, business reverses and untold hardships. In essence, injury and damages germinated from the breach and same afflicted the second respondent. In effect, the three co-existing and conjunctive ingredients of negligence were satisfied.

It is in the appellant’s concurrent evidence, proffered by DW1 and DW2, that the loss of the shipment was not directly or remotely caused by the direct acts of the appellant or its servants or by their negligence and it must have been caused by illicit acts of a third party. This concrete piece of evidence opens the gate of inference: “A conclusion reached by considering other facts and deducing a logical sequence from them,” see Muhammad v. State (2017) 13 NWLR (Pt. 1583) 386) at 420, per Augie, JSC. The law gives the Courts the latitude to make inferences, see Okoye v. Kpajie (1992) 2 SCNJ 290 reported as Okonkwo v. Kpajie (1992) 2 NWLR (Pt. 226) 633; Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421; Adebayo v. PDP (2013) 17 NWLR (Pt. 1382);

NNPC v. Roven Shipping Ltd. (2019) 9 NWLR (Pt. 1676). I will reap from this unfettered liberty allotted to the Court by the law.

The evidence unveil two arms. The crucial piece of evidence on the first arm, falls, squarely, within the slim perimeter of “an unexplained occurrence” whose presence, usually, ignites the operation of res ipsa loquitur. The attribution of the loss/misplacement of the parcel to a third party, under the second arm, exudes a double- edged effect. First, it is fluid and inchoate. This is because, there are no other particulars, which are personal to the appellant, of the alleged third party. Secondly, it amply demonstrates that the loss occurred in the hands of one other than the respondents. It flows that either way, the piece of evidence comes within the ambit of the second circumstance under which the effervescent doctrine of res ipsa loquitur thrives in adjudication. These have dismal consequences. The appellant was unable to discharge the onus probandi, laden on it by the law, to rebut the presumption of negligence levelled against it by the appellant. It therefore cannot harness from the beneficent sanctuary

of the rebuttable presumption of the doctrine of res ipsa loquitur. Put simply, the respondents proved res ipsa loquitur, one of the tentacles of negligence, against the appellant. Proof, in law, is a process by which the existence of facts is established to the satisfaction of the Court, see Section 121 of the Evidence Act, 2011; Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416; Salau v. State (2019) 16 NWLR (Pt. 1699) 399; Onyiorah v. Onyiorah (2019) 15 NWLR (Pt. 1695) 227. A courier company, like the appellant, plays pivotal roles in an economy. It attends to urgent needs, in terms of carriage of items, of shippers on agreed freight. A contract of delivery of parcel is rooted in confidence, efficiency and diligence. It, therefore, behoves a courier company, at all material time, to exhibit utmost reasonable care and prudence in the discharge of its delivery services.

For the sake of completeness, the appellant stigmatised the lower Court’s decision as a classic infliction of a miscarriage of justice. Miscarriage of justice, in law, denotes such a departure from the rules which pervade all judicial

process as to make what happened not, in the proper sense of the word, judicial procedure, see Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76. It signifies a decision or outcome of legal proceedings which is prejudicial or inconsistent with the substantial rights of a party. It implies a failure of justice and a reasonable probability of more favourable result of the case for a party alleging it, seeLarmie v. DPM & Services (2006) All FWLR (Pt. 296) 775; Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282; Aigbobahi v. Aifuwa (2006) 6 NWLR (Pt. 976) 270; Akpan v. Bob (supra); Afolabi V. W,S.W. Ltd (2012) 7 NWLR (Pt. 1329) 286; Abubakar V. Nasamu (No. 2) (2012) 17 NWLR (Pt. 1332) 523; Oke V. Mimiko (No.2) (2014) 1 NWLR (Pt. 1338) 332; Fredrick v. Ibekwe (2019) 17 NWLR (Pt. 1702) 467.

The appellant, in its infinite wisdom, denied this Court of the incidents of miscarriage of justice that afflicted its case. In the face of the appellant’s unwarranted breach of the contract and duty of care to the respondents, it became destitute of any substantial rights in the proceedings. The lower Court weaved the decision on admissible parol and documentary evidence

available before it. There was no importation of alien evidence in the judgment. In effect, the reasonable probability to earn a favourable result in appellant’s favour was, with due reverence, an echo of mirage. The decision is not enmeshed in the intractable vortex of miscarriage of justice. On this note, the charge of miscarriage of justice levelled against decision is not sustainable as to constitute a dent on the respondents’ case.

In the light of this juridical survey, done in due allegiance to the injunction of the law, the lower Court’s finding on the issue is unimpeachable. I endorse, in toto, the impeccable finding. On this score, I dishonour the learned applicant’s counsel’s salivating solicitation to sacrifice the solemn finding, on respondents’ proof of negligence, on the underserved altar of want of evidence. As a result, I will not hesitate to resolve the issue two against the appellant and in favour of the respondents.

That brings me to the settlement of issue three. The meat of the issue is clear. It probes into the correctness of the lower Court’s award of damages to the respondents. Flowing

from its phraseology, it has two limbs. The first limb bemoans the lower Court’s award of general damages of N10 million against the appellant.

Damages have been defined as: “that pecuniary compensation which law awards to a person for the injury he has sustained by reason of the act or default of another whether that act or default is a breach of contract or tort”, seeIyere v. B.F.F M Ltd (2008) 18 NWLR (Pt. 1119) 300 at 345, per Muhammad, JSC; Umudje v. SPDCN (1975) 8-11 SC 155 at 162; Neka B.B.B. Mfg. Co. Ltd. v. A.C.B. Ltd (2004) 2 NWLR (PH. 858) 521.

The basis and measure of damages were, graphically, captured by Idigbe, JSC, in Omonuwa v. Wahabi (1976) 4 SC 37 at 47-48 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.
See also Eagle Super Pack (Nig.) Ltd. v. ACB Plc (2006) 19 NWLR (Pt. 1013) 20; G.K.F.I (NIG.) Ltd. v. NITEL Plc (2009) 15 NWLR (Pt. 1164) 344.

The rationale behind the award of damages in contract cases is rooted in the ancient doctrine of restitutio in integrum – to restore the victim to a position as if the contract has not been breached, see UBA Plc v. BTL Industrial Ltd. (2006) 19 NWLR (Pt. 1013) 61; Oando (Nig.) Plc v. Adijere (W/A) Ltd. (supra); British Airways v. Atoyebi (2014) 13 NWLR (Pt. 1424) 253; Agu v. General Oil Ltd. (2015) 17 NWLR (Pt. 1488) 327. The principle connotes that a party’ who has been adequately compensated, under one head of damages for a particular breach or injury, is not to be awarded damages in respect of the same breach or injury in another head. The law seriously frowns on double compensation and equity deprecates it. SeeO.B.I. (Nig) Ltd. v. G. Chitex Ind. Ltd. (2005) 14 NWLR (Pt. 945) 392; Tsokwa Motors (Nig.) Ltd. v. UBA Plc (2008) 2 NWLR (Pt. 1071) 347; Yisi (Nig.) Ltd. v. Trade Bank Plc

(2013) 7 NWLR (Pt. 1357) 522; Oando (Nig.) Plc v. Adijere (W/A) Ltd. (supra); British Airways v. Atoyebi (supra); Agu v. General Oil Ltd. (supra); Mabamije v. Otto (2016) 13 NWLR (Pt. 1529) 171.

personal judgment and conscience uninfluenced by the judgment or conscience of other persons, see Suleman v. C.O.P., Plateau State (2008) 8 NWLR (Pt. 1089) 298, Ajuwa v. S.P.D.C.N. Ltd. (2011) 18 NWLR (Pt. 1279) 797; NJC v. Dakwang (2019) 7 NWLR (Pt. 1672) 532; Nzekwe v. Anaekwenegbu (2019) 8 NWLR (Pt. 1674) 235; Adeniyi v. Tina George Ind. Ltd. (2019) 16 NWLR (Pt. 1699) 560. An exercise of discretion does not grant the Court the unbridled licence to act arbitrarily or capriciously. Contrariwise, it gives it the latitude to act judicially and judiciously, see Shittu v. PAN Ltd. (2018) 15 NWLR (Pt. 1642) 195; APGA v. Oye (2019) 2 NWLR (Pt. 1657) 472; Adeniyi v. Tina George Ind. Ltd. (supra). To act judicially denotes “. . . discretion bounded by the rules and principles of law, and not arbitrary, capricious, or unrestrained. It is not the indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by law, or the equitable decision of what is just and proper under the circumstances”, see Babatunde v. P.A.S. & T.A. Ltd. (2007) 13 NWLR (Pt. 1050) 113, at 149 and 150, Per Muhammad, JSC. On the other hand,

“Acting judiciously…is said to import the consideration of the interest of both sides and weighing them in order to arrive at a just or fair decision”, see Babatunde v. P.A.S & T.A Ltd. (supra) at 164, Per Ogbuagu, JSC.
My noble Lords, in the wide residence of discretion, previous decisions are not of much relevance. The reason is not far-fetched. The facts and circumstances of two cases are not always on all fours. A Court of law is not, willy-nilly, bound by a precedent in an earlier decision as that will be akin to putting an end to exercise of discretion. It can only use such decisions as guidelines, seeAbacha v. State (2002) 5 NWLR (Pt. 761) 638; Bamaiyi v. State (2001) 8 NWLR (Pt. 715) 270; Suleman v. C.O.P., Plateau State (supra); Babatunde v. P.A.S. & T.A. Ltd. (supra); Oyegun v. Nzeribe (2010) All FWLR (Pt. 542) 1612; Regt. Trustees, P.C.N. v. Etim (2017) 13 NWLR (Pt. 1581); 1 NJC v. Dakwang (supra); Adeniyi v. Tina George Ind. Ltd. (supra). An appellate Court is, usually, loath to interfere with an exercise of discretion save where it is: wrongly exercised; tainted with irregularity, irrelevant or extraneous matters or

defilement of the law, or in the interest of justice, see Ajuwa v. S.P.D.C.N. Ltd (supra); T.S.A. Ind. Ltd. v. Kema Inv. Ltd (2006) 2 NWLR (Pt. 964) 300; Dick v. Our and Oil Co. Ltd. (2018) 14 NWLR (Pt. 1638) 13; FRN v. Yahaya (2019) 7 NWLR (Pt. 1670) 85; Nzekwe v. Anaekwenegbu (supra); Takoh v. MTN (Nig) Comm. Ltd. (2019) 10 NWLR (Pt. 1679) 23; Ogunpehin v. Nucleus Venture (2019) 16 NWLR (pt. 1699) 533.
The lower Court’s judgment, sought to be creamed and ostracised, monopolises pages 197-220 of the record. I have given a microscopic examination to it particularly as it appertains to the award of general damages. The lower Court, at pages 213, lines 15 -20, of the record, found:
Having so found and in absence of satisfactory evidence to discharge that shifted onus of lack of due care taken in addition to the undisputed and admitted facts and evidence of loss of shipment containing the 2nd Claimant’s international passports which were neither delivered and are missing till date, this Court can further find that the Defendants are liable in damages to the 2nd Claimant for the loss of his passports.
The lower Court staked the

proclamation on the case of British Airways v. Atoyebi (2014) 13 NWLR (Pt. 1424) 253 on footing of stare decisis and factual similarity. It also found that damages would serve for the replacement of the lost passports and the consequent inconvenience et al based on the authority of UBA Plc v. BTL Ind. Ltd. (2006) 19 NWLR (Pt. 1013) 61. In this regard, the lower Court was duly and properly guided by the dictates of the law in contradistinction to arbitrary and capricious considerations. It is a clear illustration of acting judicially.
Flowing from the record, the bible of the appeal, the respondents’ evidence galore that, consequent upon the loss of the passports, the second respondent suffered business/financial misfortunes, emotional stress, stress of procuring other passports, failure in family commitments/responsibilities, inconveniences, untold hardships and failure to travel to USA for a pre-natal arrangement for his pregnant wife. There are the second respondent’s UK and USA visas in Exhibit C. The lower Court took all these into consideration. Thus, the award took care of the competing interests of the feuding parties over the

non-delivery and misplacement of the two passports. It served as a striking balance between the appellant’s unwarranted carelessness and the colossal losses that enveloped the second respondent over the inability to deliver the passports. On this note, I am compelled to crown the award with the toga of judicious award. In the aggregate, the lower Court acted judicially and judiciously and did not fracture the law on exercise of discretion. In sum, the lower Court’s exercise of discretion was not injudicious nor was it guilty of any of the negative elements that will compel an appellate Court to interfere with it.

At this junctions, it is important to observe, apace, that the respondents’ suit, which parented the appeal, is an amphibious matter in that it embraces contract and tort. The latter traces its ancestry to the former, see Eagle Superpack Ltd. v. ACB Plc (supra). The appellant was the tortfeasor in both. In such a double scenario, the law grants the Court, the unbridled licence to damnify the violator in damages, see Makwe v. Nwukor (supra); Oando (Nig.) Plc. V. Adijere (W.A.) Ltd. (supra); Harka Air Serv. (Nig.) Ltd. v. Keazor

(2011) 13 NWLR (Pt. 1264) 320; British Airways v. Atoyebi (supra). Interestingly, in the domain of tort of negligence, the law allows for damages for natural loss, pains, sufferings, injury, mental feelings and discomfort even when they are not monetarily quantified, see Eseigbe v. Agholor (1993) 12 SCNJ 82; Ighreriniovo v. S.C.C. (Nig.) Ltd. (supra); Muhammad v. IGP (2019) 4 NWLR (Pt. 1663) 492. The foregoing solidifies the legality of the lower Court’s award of the N10 Million general damages.

The appellant implored this Court to interfere in the award of N10 Million general damages as being an affront to the law. An appellate Court does not usually interfere with award of damages unless: (a) the trial Court acted under a mistake of law; or (b) where the trial Court acted in disregard of some principles of law; or (c) where the trial Court acted under misapprehension of facts; or (d) where it has taken into account irrelevant matters or failed to take into account relevant matters; or (e) where injustice would result if the Appellate Court does not interfere; or (f) where the amount awarded is ridiculously low or high that it must have been a

wholly erroneous estimate of the damages, see SPDCN v. Tiebo VII (supra); Cameroon Airlines v. Otutuizu (supra); British Airways v. Atoyebi (supra); Agu v. General Oil Ltd. (supra).
I have just found that the lower Court paid due fidelity to the law when it awarded the damages in the case. As shown earlier, the lower Court did not desecrate the law nor disregard its principles in the award. It was not mistaken as to the facts. It never invited foreign/extraneous matters, to play a role, in its assessment of the damages. The corollary is that no injustice will arise if an appellate Court fails to intervene in the awards. On the quantum of the damages, the appellant, in its infinite wisdom, made no case for mitigation of damages before the lower Court or even in this Court. It therefore, did not avail the Court, to its detriment, with the necessary facts and evidence that would have compelled this Court to slash the damages. In any event, the seemingly mountainous sum of N10 Million vaporizes in the presence of the existential galloping inflation and exponential depreciation of the Nigerian Naira currency. In a nutshell, the lower Court was/is not guilty

of any of the circumstances chronicled above as to warrant and propel this Court to tamper with the award in general damages. Contrariwise, the award, in general damages, was in total loyalty to the doctrine of restitutio in integrum as they returned the respondents to their financial position prior to the breach of contract and duty in negligence.
These expansive legal expositions, with due deference, expose the poverty of the learned appellant’s seemingly dazzling argument on the first limb of this issue. It cannot fly. The lower Court did not, in the least, run foul of the law on award of general damages on breach of contract and negligence. In effect, I have no backing of the law to interfere with the award that has not insulted the law. I therefore resolve the first limb of the issue three against the appellant and in favour of the respondents.

It remains to thrash out the second limb of the issue three. It is canalised within a narrow compass. It centres on the award of cost of N1 million against the appellant.
The learned respondents’ counsel greeted it with an objection. The registered objection is hinged on the

appellant’s failure to obtain leave of Court to appeal against the order of cost. At the end of a civil case, a successful party is entitled to award of costs. This is because, costs follow events. Such costs, however, ought to be compensatory and non-punitive. It is at the discretion of Court to award costs which discretion must be exercised judicially and judiciously, see NNPC v. Klifco (Nig) Ltd. (2011) 10 NWLR (Pt. 1255) 209; Olusanya v. Osinleye (2013) 7 NWLR (Pt. 1367) 148; Luna v. C.O.P, Rivers State (2018) 11 NWLR (Pt. 1630) 269; Mekwunye v. Emirates Airlines (2019) 9 NWLR (Pt. 1677) 191. It is settled law, beyond any peradventure of doubt, that an appeal against costs is not as of right. It is incumbent on party who appeals against an order of cost to obtain leave of Court or the appeal/ground will be infested with incompetence, see Oketade v. Adewunmi (supra).
Nevertheless, the cost of N1 Million, which is the subject of controversy is totally divorced from the genre of costs awarded to a successful party. I had, at the cradle of this judgment, catalogued the reliefs. The last of them is: “7. The sum of N2,000,000.00 (Two

Million Naira) only as cost of litigation”. In the twilight and bottom of the lower Court’s 24-page judgment, precisely at page 220, line 16, of the record, it decreed: “3. Relief F in the sum of N1,000,000.00 (One Million Naira) only.” Thus, the award owes its paternity to the relief 7 in the claim. It, therefore qualifies as a grant of a substantive prayer of cost of the litigation. It is intrinsic to the judgment and inseparable from it. To this end, it falls outside the province of costs granted to successful party which is appealable upon leave sought and obtained from Court. The progeny of this is obvious. The complaint is not plagued by an incompetence on the ground of failure to obtain leave to appeal against it. In effect, the objection, invented by the respondents to snuff life out of the second limb at its embryo, is idle. It flies in the face of the law. Accordingly, I overrule and dismiss the objection. I will consider the appellant’s grouch on the second limb of the issue on its merit.

At the tail end of the lower Court’s judgment, exactly at page 220 of the record, it accepted, rightly in my view, the

contention of the appellant’s counsel that cost of litigation must be pleaded and proved. It found, correctly in my opinion too, at the selfsame page 220, lines 11 and 12, of the record, that: “There is no evidence by way of lawyer’s fee note, bill or payment of same or expenses placed before this Court in this regard by the claimants”. Amazingly, shortly after, two lines away, the lower Court ruled: “Judgment is therefore accordingly entered in favour of the claimants for… 3. Relief F in the sum of N1,000,000.00 (One Million Naira) only”. To my mind, the grant, with due respect to the lower Court, is out of sync with the finding of want of proof of the costs adumbrated earlier.

My noble Lords, this is a good juncture to summon the doctrine of perversion. A verdict of Court is perverse when: it runs counter to the pleadings and evidence before it, a Court takes into account matters it ought not to take into consideration, a Court shuts its eyes to the evidence, a Court takes irrelevant matters into account or it has occasioned a miscarriage of justice, see Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 836) 136;

Nnorodim v. Ezeani (1995) 2 NWLR (Pt. 378) 448; Lagga v. Sarhuna NWLR (Pt. 1114) 427; Onyekwelu v. Elf Pet (Nig.) Ltd. (2009) 5 BWKR (Pt. 1133) 181; Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217; Ihunwo v. Ihunwo (2013) 8 NWLR (Pt. 1357) 550; Olaniyan v. Fatoki (2013) 17 NWLR (Pt. 1384) 477; Udom v. Umanah (No.1) (2016) 12 NWLR (Pt. 1526) 179; Adeokin Records v. M.C.S.N. (Ltd)/GTE) (supra); Mamonu v. Dikat (2019) 7 NWLR (Pt. 1672) 495; MTN (Nig.) Comm. Ltd. v. Corporate Comm. Inv. Ltd. (2019) 9 NWLR (Pt. 1678) 427; Offodile v. Offodile (2019) 16 NWLR (Pt. 1698) 189; Bi-Courtney Ltd. v. A-G, Fed. (2019) 10 NWLR (Pt. 1679) 112.

It is my view that, in the glaring absence of want of evidence, viva voce or documentary of the claimed costs of litigation, the lower Court, with due regard, founded the award on alien, or, even for lack of better expression, on pseudo-evidence. It is rudimentary law, in our adversarial system of adjudication, that the duty of a Court, in a civil claim, is to merely render unto a party in accordance to his proven claim. In the eyes of the law, the award, sought to be expelled, is a gratuitous award per excellence. Indeed, it is a mirror image of

a windfall. It is elementary law, that a Court of law is not a santa claus that dishes award to a recipient who never solicited for it. In effect, the unmerited award of N1,000,000.00 (One Million Naira), dashed to the respondents, is marooned in the murky ocean of perversity. In the mind of the law, its destiny is not moot and it will arrive shortly. In all, I will not hesitate to resolve the second limb of issue three in favour of the appellant and against the respondents.

On the whole, having resolved the issues one, two and three (partially) against the appellant, the fate of the appeal is obvious. It is partly meritorious and succeeds in part. Consequently, I allow the appeal in part. Accordingly, I affirm the lower Court’s judgment in favour of the respondents for: “1. All declaratory Reliefs A-D 2. Relief E in the sum of N10,000.000.00 (Ten Million Naira) only.” I set aside the award in: “3 Relief F in the sum of N1,000,000.00 (One Million Naira) only”. The parties shall bear the respective costs they expended in the prosecution and defence of the partially-successful appeal.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I read in draft, the erudite leading judgment of my learned brother, Obande Festus Ogbuinya, JCA, which has just been delivered. The legal position has been expounded with remarkable sapience in the resolution of the issues thrust up for determination in the appeal.

The facts of the matter which are not convoluted have been redacted in the leading judgment. The Respondents, inter alia, relied on the doctrine of res ipsa loquitur in proof of their contention that the Appellant was negligent. The doctrine which means that the thing speaks for itself is an evidential rule which shifts the burden of proof to a defendant where it is shown that, in the absence of an explanation, the event complained of was more likely than not to have been caused by negligence. The defendant will then have the burden of explaining what happened to negative the application of the doctrine. See MANAGEMENT ENTERPRISES LTD vs. OTUSANYA (1987) 2 NWLR (PT 55) 179, OJO vs. GHARORO (2006) 10 NWLR (PT 987) 173 at 223-224 and OTTI vs. EXCEL-C MEDICAL CENTRE LTD (2019) LPELR (47699) 1.
As demonstrated in the leading judgment, the lower Court properly evaluated the evidence and held

that the Appellant was negligent since the doctrine of res ipsa loquitur was not controverted: ODEBUNMI vs. ABDULLAHI (1997) LPELR (2201) 1 at 11-12, ONWUKA vs. OMOGUI (1992) 3 NWLR (PT 230) 393 at 415 and ROYAL ADE NIG. LTD vs. NATIONAL OIL & CHEMICAL MARKETING CO. PLC (2004) LPELR (2959) 1 at 26-28.

The exemption clause relied upon by the Appellant was correctly held to be unavailing, consequent upon which the Appellant was rightly mulcted in damages for negligence. The assessment of the quantum of general damages to award is at the discretion of the Judge at nisi prius. When, as in this case, the damages awarded is a proper exercise of judicial discretion, an appellate Court will not interfere.

I have cogitated and excogitated on the sum of N1,000,000.00 awarded in favour of the Respondents as cost of litigation by the lower Court. Quite apart from the fact that the same was not proved, and therefore a gratuitous award as shown in the leading judgment, it seems to me that it will be unethical for a litigant to pass on the burden of costs of litigation to the opponent in the action. This is on account of the fact that the costs of litigation do

not form part of the cause of action ventilated. See MICHAEL vs. ACCESS BANK (2017) LPELR (41981) 1 at 48-49 and IBE vs. BONUM NIGERIA LTD (2019) LPELR (46452) 1. The said award can therefore not be allowed to stand.

It is for the foregoing reasons and the more elaborate reasoning and conclusion adroitly marshalled in the leading judgment, which I avow my unalloyed concurrence with, that I also join in allowing the appeal in part and on the same terms as set out in the leading judgment.

BALKISU BELLO ALIYU, J.C.A.: I have had the preview of the judgment just delivered by my learned brother OBANDE FESTUS OGBUINYA, JCA, and I totally agree with the reasoning and conclusion contained therein, which with respect, I adopt as mine. I hold that the appeal succeeds in part. I affirm the judgment of the Lagos State High Court delivered on the 11th July, 2017 in respect of Suit No: LD/6382/14 except the award of One Million Naira under relief (f) which I set aside. I abide by the consequential orders made in the lead judgment.

Appearances:

Abiola Tella, Esq. For Appellant(s)

Tochukwu Onyiuke, Esq. For Respondent(s)