EZENWA BROTHERS NIGERIA LIMITED V. ONA-JONES NIGERIA LIMITED
(2012)LCN/5803(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of May, 2012
CA/E/119/2007
RATIO
AGENCY: WAYS AGENCY RELATIONSHIP CAN BE CREATED
Agency relationship can be created through many ways, namely by agreement, ratification, necessity, estoppel by implication of law and by presumption of law in case of cohabitation. See Vulcan Gases Limited v. GFIG (2001) FWLR (Pt.53) 1 at 22-23. PER ADAMU JAURO, J.C.A
AGENCY: WHETHER AN AGENT CAN DELEGATE HIS AUTHORITY WITHOUT THE AUTHORITY OF HIS PRINCIPAL
It is trite law that based on the principle of delegates non potest delegare, an agent cannot delegate his authority without the express or implied authority of his principal. This principle has been reflected in Section 617(1) of the contract law of Anambra State, which provided thus:
“617(1) No agent has power to delegate his authority, or appoint a sub-agent to do any act on behalf of his principal except with the express or implied authority of the principal.”
The application of the above principle is not absolute as rightly submitted by the learned counsel for the respondent, as the authority of the principal can be implied under subsection 2 of Section 617. In the instant case, the authority of the principal can be implied under Section 617(2)(c) and (e) which provides thus:
“2. The authority of the principal shall be implied in the following cases:
(a) ……
(b) ……
(c) Where, from the conduct of principal and agent, it may reasonably be presumed to have been their intention that the agent should have power to delegate his authority.
(d) ……
(e) Where the authority conferred is of such a nature as to necessitate its execution wholly or in part by means of a deputy or sub-agent;
(f) ….. PER ADAMU JAURO, J.C.A
COURT: PRIMARY DUTY OF THE TRIAL JUDGE
It is the primary duty of the trial judge who had the opportunity of seeing, hearing and assessing the witnesses, to evaluate the evidence and ascribe probative value to such evidence. Once this is done, an appellate court will not interfere. See Ebba v. Ogodo (1984) 1 SCNLR 372, Oyewole v. Akande (2009) 15 NWLR (Pt.1163) 119, Ogbechie v. Onochie (1998) 1 NWLR (Pt 470) 370, Arowolo v. Olowookere (2011) 18 NWLR (Pt. 1278) 280. PER ADAMU JAURO, J.C.A
EVIDENCE: ON WHOM LIES THE ONUS OF PROOF ON THE ISSUE OF MITIGATION OF DAMAGES
the onus of proof on the issue of mitigation is on the defendant and if he fails to discharge the burden, the damages proved will be awarded. See Halsburys Laws of England, 4th Edition, volume 12(1), paragraph 1041, British Westinhouse Company v. Underground Electric Company (1912) AC 673, Garnac Grain Company v. Fanre & Faircloagh Limited (1968) AC 1130 at 1140, Reynolds v. Rockonoh (2005) 4 SCNJ 14, Akanbi v. Alatede Nigeria Limited (2000) FWLR (Pt.11) 1928. PER ADAMU JAURO, J.C.A
Before Their Lordships
AYOBODE OLUJIMI LOKULO-SODIPEJustice of The Court of Appeal of Nigeria
ADAMU JAUROJustice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJIJustice of The Court of Appeal of Nigeria
Between
EZENWA BROTHERS NIGERIA LIMITEDAppellant(s)
AND
ONA-JONES NIGERIA LIMITEDRespondent(s)
ADAMU JAURO, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Anambra State sitting at Onitsha, delivered on 29th June, 2006 by Hon. Justice J.I. Nweze in suit number 0/573/2005.
The facts of the case are as follows: The respondent took its Mercedes Benz 911 Tipper lorry for repairs to a mechanic named Emeka Agbawo. In the course of effecting the repairs, the said mechanic, Emeka Agbawo, sent the crankshaft of the Tipper lorry to the defendant now appellant who is an expert in regrinding crankshafts. The crankshaft was sent to the defendant through a brother of the mechanic named Paul Agbawo (PW1), though the job order and the receipt (Exhibit 1 and 2) were issued in the name of Emeka Agbawo (PW2). The defendant was to regrind the crankshaft to an agreed gauge of 0.20 which is 0-50mm. After working on the crankshaft, it was returned to Emeka Agbawo the mechanic. On receiving the crankshaft, the mechanic mounted it in the engine block for testing and discovered that it was not properly done, hence it was sent back to the defendant. The defendant on its part insisted that the grinding was properly done but the fault was that of the engine block.
A new engine block was purchased and when the crankshaft was fixed the problem persisted. Hence a new crankshaft had to be purchased for the repairs of the tipper. As a consequence of the foregoing, the respondent as plaintiff instituted the suit culminating in this appeal against the defendant now appellant on 14th November 2005. The plaintiff in the court below claimed against the defendant the sum of N548,250.00 as special damages for breach of contract and negligence, and two million Naira general damages. At the close of pleadings, the matter proceeded to hearing. The plaintiff called four witnesses and the defendant called two witnesses. Several documentary exhibits were tendered in evidence. Upon the conclusion of hearing and adoption of written addresses, judgment was given in favour of the plaintiff, part of which reads thus:
“In the final analysis the plaintiffs claim succeeds. Judgment is entered in favour of the plaintiff in the sum of N202,250 being damages for breach of contract and negligence. There shall be cost of N20.000 in favour of the plaintiff.”
See page 119 of the record of proceedings.
Aggrieved by the aforementioned decision, the defendant challenged same vide a notice of appeal dated 18th July, 2006. The notice of appeal is predicated upon four grounds of appeal. See pages 120 to 122 of the record of proceedings. The respondent on its part, pursuant to an order for extension of time granted on 18th March, 2008 filed a notice of cross-appeal dated 27th March, 2008 and anchored on two grounds of appeal. In line with the Rules of Court, briefs of argument were filed and exchanged. The appellant’s brief of argument is dated 15th June, 2007 and filed on 22nd November, 2007 pursuant to an order of court granted that same day. The Appellant’s Reply brief is dated 23rd March, 2009 and filed on 24th March, 2009. The Appellant’s Cross/Respondent’s brief is dated 23rd March, 2009 and filed on 24th March, 2009. The Respondent’s brief of argument is dated 18th November, 2008 and filed on 24th November, 2008 pursuant to an order of court made on 17th November, 2008. The Cross-Appellant’s brief of argument dated 17th November, 2008 was filed on 24th November, 2008 pursuant to the same order of 17th November, 2008. The Cross-Appellant’s Reply brief is dated 7th April, 2009 and filed on 8th April, 2009.
Mrs. F.A. Ogbuli for the Appellant/Cross Respondent adopted the Appellant’s brief, the Reply brief and the Cross-Respondent’s brief and relied on all the briefs in urging the court to allow the appeal and dismiss the cross appeal. Mr. A.C. Anaenugwu leading Okey Abazu Esq., and J.C. Udechukwu Esq. for the Respondent/Cross Appellant, adopted and relied on the Respondent’s brief, the Cross-Appellant’s brief and Cross-Appellant’s Reply brief in urging the court to dismiss the main appeal and allow the cross appeal.
The main appeal will be taken first and thereafter the cross appeal will be considered. The appellant distilled three issues for determination on pages 3 and 4 of the appellant’s brief of argument. The said issues are hereby reproduced thus:
“1. Whether the plaintiff is a party to the whole transaction between Paul Agbawo and the Defendant whereof a contract could be inferred between the plaintiff and the defendant. This takes care of ground 1 of the notice and grounds of appeal.
2. Whether the plaintiff in view of the evidence before the court was entitled to the huge amount he got in the relief he claimed, in the face of the “Condition For Acceptance” which the first P.W.1. Paul Agbawo entered into in the transaction between him and the defendant. This takes care of ground 4 of the appeal.
3. Whether the learned trial judge properly evaluated the evidence before him before arriving at the judgment he gave in this case. This took care of grounds 2, and 3 of the notice and grounds of appeal.”
The Respondent identified three issues for determination on page 2 of the Respondent’s brief of argument, as follows:
“(i). Whether having regard to the evidence before it, the finding of the trial court that there was a contract between the respondent and the appellant was right.
(ii) Whether the High Court was right in awarding the Respondent the quantum of damages awarded by it.
(iii) Whether the finding of negligence made by the High Court against the appellant was based on a proper evaluation of the evidence of the parties.”
The issues for determination nominated by the parties are identical in nature, hence the appeal will be resolved on the issues for determination submitted by the appellant.
ISSUE ONE:
On this issue, learned counsel for the appellant submitted that it is trite law that a contract cannot be enforced by a person who is not a party even if the contract is made for his benefit and purports to give him a right to sue. In support, reference was made to the case of Chuba Ikpeazu v. ACB Ltd. (1965) NMLR 374. Learned counsel contended that throughout the whole transaction between Paul Agbawo and the defendant, the plaintiff was not a party at all. Learned counsel therefore queried the trial court for bringing in the plaintiff when it held on page 110 of the record that Emeka Agbawo acted on behalf of the plaintiff as its agent. Learned counsel argued that based on the principle of Delegatus non potest delegare, the trial court was wrong in holding that the plaintiff contracted with the defendant through Paul Agbawo who acted on behalf of Emeka Agbawo. Learned counsel in concluding on this issue, posited that there was no contract between the plaintiff and the defendant.
In response to this issue, learned counsel for the respondent submitted that the respondent duly pleaded and adduced unchallenged evidence of the agency relationship between the Respondent and Emeka Agbawo (PW2), with respect to the repair of the Engine of the Respondents Tipper vehicle. Learned counsel argued that in carrying out the repairs on the vehicle, PW2 had an implied authority of the Respondent to take the crankshaft to the appellant for repairs. In support, reference was made to Section 613 and 614 of the Contract Law of Anambra State. Learned counsel contended that by paying the cost of regrinding the crankshaft, the Respondent in effect ratified all that PW2 had done without question. Learned counsel posited that after considering evidence led by the parties, the court rightly found that PW2 acted as an agent of the respondent. Learned counsel submitted that the principle that an agent cannot delegate his authority or appoint a sub-agent is not absolute. In support, reference was made to Sections 614, 617(1)(2)(c)and (e) of the Contract Law of Anamhra State. Learned counsel further submitted that there was no appeal against the finding that the respondent was a party to the contract, hence this court cannot disturb or review the finding. In support, reference was made to the case of Omnio Nigeria Limited v. Dyktrade Limited (2007) 15 NWLR (Pt.1058) 576 at 617. In concluding, learned counsel urged the court to discountenance submission made by the appellant and uphold the finding of the lower court that the respondent was a party to the contract and had requisite capacity to enforce it.
In a short reply on points of law, learned counsel contended that ground one of the grounds of appeal is a challenge to the finding that the Respondent was a party to the contract, hence the case of Omnia Nigeria Limited v. Dyktrade Limited (supra) is not applicable. Learned counsel argued that Section 613 and 614 of the Contract Law Anambra State made provision for incidental and usual authority of a general, agent but does not give an agent an implied authority to sub-delegate. Learned counsel made further reference to Section 617(1) of the same Contract Law Anambra State, to the effect that an agent has no power to delegate his authority or appoint a sub-agent. Learned counsel posited that there was no evidence to the effect that PW2 had the implied authority of the respondent to sub-delegate his authority.
It is trite law that a person who is not originally a party to a contract cannot be bound by a contract nor can he receive any benefit from it. In a way only parties to a contract can claim any right or obligation under it, and this principle is known as the doctrine of privity of contract. Generally therefore, as rightly submitted by the appellant, a contract cannot be enforced by a person who is not a party, even if the contract is made for his benefit or purport to give him the right to sue upon it. See Chuba Ikpeazu v A.C.B. Limited (supra). There are however exceptions to the general rule and one of the main exceptions is where agency relationship can be established. Hence a third party can intervene once he can establish that one of the original parties is acting on his behalf and that he was infact the principal. See A.G. Federation v. A.I.C. Limited (2000) 6 SC (Pt.1) 175 at 183, C.R.S.W.B. v. N.C. Eng. Limited (2006) 13 NWLR (Pt.998) 589, Dunlop Pneumatic Tyre Company Limited v. Selfridge (1915) AC 847. Hence once agency relationship can be established between the respondent and the mechanics, it clothes the respondent with the legal right to sue the appellant on the contract.
I will start a consideration of this issue with the contention of the respondent to the effect that there was no appeal against the finding that respondent was a party to the contract. This contention has made me to revisit the grounds of appeal as contained on pages 120 to 122 of the record of appeal and I have meticulously perused the said grounds of appeal. Ground one of the grounds of appeal is indeed a challenge to the finding made by the court below to the effect that the respondent was a party to the contract. The said ground of appeal shorn of its particulars (a)(c) and (d) is hereby reproduced thus:
“GROUND ONE:
1. The learned trial judge erred in law by failing to consider whether there was a contract at all between the defendant/appellant and the plaintiff/respondent or indeed between the defendant/appellant and P.W.2 whereof the defendant/appellant would be in breach.”
PARTICULARS OF ERROR:
(a) ……
(b) There was no offer and acceptance between the defendant and either the plaintiff or P.W.2.
(c) ……
(d) ……
From the ground of appeal reproduced above, it is clear that there is an appeal against the finding in contention, hence the case of Omnia Nigeria Limited v. Dyktrade Limited (supra) is inapplicable to this case.
On the aspect of ageocy, the respondent in paragraph 4 of its amended statement of claim, pleaded thus:
“On or about the 4th day of May, 2005, the plaintiff took the plaintiff’s tipper to one Mr. Emeka Agbawo, a motor mechanic for engine works. The said mechanic was duly authorized by the plaintiff to take all necessary steps including engaging other workmen, experts, specialists and/or artisans on the plaintiff’s behalf which in the mechanics opinion are required for the proper execution of the works.”
The respondent led evidence through PW2 and PW4 as to agency relationship in relation to the repairs of the Mercedes Benz Tipper of the Respondent. The crankshaft taken to the appellant for repairs was in the course of repairs of the Tipper by PW2. In his evidence in chief PW4 on page 79 of the record stated thus:
“The mechanic on receipt of the vehicle dismantled the engine. He said that the crankshaft has problems. He said it should be sent to the defendant to determine what should be done. I then asked him to do as he proposed”.
The evidence of DW1 and DW2 also supports the fact that all the jobs PW2 has been bringing to the appellants was on behalf of his customers. Agency relationship can be created through many ways, namely by agreement, ratification, necessity, estoppel by implication of law and by presumption of law in case of cohabitation. See Vulcan Gases Limited v. GFIG (2001) FWLR (Pt.53) 1 at 22-23. In the instant case, the payment of the money for regrinding the crankshaft by PW4 amounts to ratifying all that PW2 did. There is therefore ample evidence to support agency relationship between PW2 and the respondent.
On the issue of delegating authority to a sub agent, the appellant contended that PW2 has no power to do so based on the principle of delegatus non potest delegare. It is trite law that based on the principle of delegates non potest delegare, an agent cannot delegate his authority without the express or implied authority of his principal. This principle has been reflected in Section 617(1) of the contract law of Anambra State, which provided thus:
“617(1) No agent has power to delegate his authority, or appoint a sub-agent to do any act on behalf of his principal except with the express or implied authority of the principal.”
The application of the above principle is not absolute as rightly submitted by the learned counsel for the respondent, as the authority of the principal can be implied under subsection 2 of Section 617. In the instant case, the authority of the principal can be implied under Section 617(2)(c) and (e) which provides thus:
“2. The authority of the principal shall be implied in the following cases:
(a) ……
(b) ……
(c) Where, from the conduct of principal and agent, it may reasonably be presumed to have been their intention that the agent should have power to delegate his authority.
(d) ……
(e) Where the authority conferred is of such a nature as to necessitate its execution wholly or in part by means of a deputy or sub-agent;
(f) …..
In view of the foregoing, this issue is resolved against the appellant and the respondent can maintain an action in contract against the appellant.
ISSUE TWO:
The appellant contended that under the “Condition for Acceptance” tendered as exhibit D4, there is an exemption clause limiting the liability of the Company to 10% of the value of work delivered to it. Learned counsel submitted that parties are bound by the terms of the contract . In support, reference was made to Computo Belgo-European v. A.C.B. (1986) 1 NWLR (Pt.14) 105. Learned counsel argued that in the instant case, the lower court failed to consider the effect of the exemption clause. Learned counsel further submitted that once the exemption clause is considered, the appellant cannot pay more than 10% of the value of the crankshaft.
The respondent contended that the appellant did not plead that there was an exemption clause in the contract and issues were not joined by the parties as to its applicability. Learned counsel submitted that the appellant having not raised the issue before the lower court cannot raise it now without leave and no such leave has been obtained. Learned counsel therefore urged the court to discountenance all submissions made by the appellant on the exemption clause. In the alternative, learned counsel argued that the appellant having breached a fundamental term by not regrinding the crankshaft to an agreed gauge of 0.20, cannot rely on exemption clause to escape liability. In support, reference was made to Section 190 of the contract law of Anambra State. Learned counsel contended that the exemption clause is inapplicable and of no moment. In support, reference was made to the case of I.M.N.L. v. Pegofor Industries Limited (2005) 15 NWLR (Pt. 947) 1 at 17.
In reply, learned counsel stated that the issue of exemption clause was raised during trial and in their final address, but the lower court failed to advert its mind to it. Learned counsel submitted that Section 189 of the Contract Law of Anambra State, gives parties the right to exclude or limit their liability for breach of contract, provided the exemption is clearly stated without ambiguity. Learned counsel argued that Section 190 of the Contract Law Anambra State cannot apply to this case and urged that the issue be resolved in favour of the appellant.
The issue under consideration here complains about the failure of the lower to advert its mind to the limitation or exemption of liability clause and make pronouncement on same. The limitation of liability clause is contained under “Condition of Acceptance” listed as number 3 at the back of exhibit D4. The said clause limited the liability of the company to 10% of the value of the work delivered to the company. The first contention of the Respondent is that the limitation of liability clause was never raised at the lower court and issues joined upon, hence it cannot be raised at this level without leave of court.
I have revisited the pleadings of the parties in this case, and none of the pleadings raised the issue of limitation of liability as contained in exhibit D4. In a way, parties have not joined issues on the limitation of liability, hence the court did not make any pronouncement on it. The issue having not been raised at the lower court becomes a fresh issue, therefore can it now be raised without leave? The general rule is that an appellant cannot raise on appeal a question which has not been raised or tried by the trial court. See Akpene v. Barclays Bank of Nigeria (1977) 1 SC 47 at 52. Leave of court is therefore necessary to raise a fresh issue such as the one at hand for the first time on appeal. See Ali Pindar Kwajaffa & Ors. v. Bank of the North (2004) 5 SC (Pt.1) 103, F.G.N. & Ors. v. Zebra Energy Limited (2002) FWLR (Pt.92) 1749, Oforlette v. State (2000) 7 SC (Pt.1) 80 at 83. The appellant having not sought for leave to raise this new issue, all arguments canvassed on this issue are incompetent and are hereby discountenanced. The said issue is accordingly struck out.
ISSUE THREE:
This issue questions the evaluation of evidence made by the trial court and the appellant contended that the evidence was not evaluated at all. Learned counsel submitted that the proper way to evaluate evidence is by putting the evidence of both parties on an imaginary scale to see which one out weighs the other in terms of probative value. Learned counsel submitted that in the instant case, the trial court only demolished the evidence adduced by the appellants as it relates to negligence without considering the case of the respondent. In support of this submission, reference was made to the following cases: Mogaji v. Odofin (1978) 4 SC 91 at 93, Ezeoke v. Nwagbo (1988) 1 NWLR 616 at 627, Akibu v. Opaleye (1994) 11 SC 189 at 203, Oladehin v. Continental Oil Limited (1978) 2 SC 23. Learned counsel urged that the issue be resolved in favour of the Appellant.
In response, learned counsel for the respondent stated that the finding of the lower court on negligence against the appellant was based on proper evaluation of evidence. Learned counsel further stated that the lower court dutifully examined the evidence of PW2 and DW1 under issues two and three which related to negligence and ascribed probative value to their evidence based on which it made finding that the appellant was negligent in not regrinding the crankshaft to the required specification. Learned counsel submitted that there is no hard and fast rule in evaluating evidence of witnesses and each judge is free to adopt his own method. In support, reference was made to Eleh v. Anyadike (1999) 5 NWLR (Pt.603) 454 at 465.
Learned counsel contended that where a court finds from the trend of pleading and evidence, that onus of proof of a particular fact in issue was on the defendant, it can properly evaluate evidence of the defendant before that of the plaintiff in arriving at a finding on a point. Learned counsel submitted that in the instant case, the onus was on the defendant to prove that it was an intervening act that rendered the crankshaft defective and not act of negligence on the defendant’s part. Learned counsel made reference to pages 113 and 115 of the record for evaluation on negligence and further contended that even where the finding on negligence is nullified, the judgment could still stand on the finding on breach of contract. Learned counsel urged that the issue be resolved in favour of the respondent.
The complaint of the appellant under this issue is that there was no proper evaluation of evidence by the lower court, especially as it relates to issue of negligence. Evaluation of evidence as rightly submitted by learned counsel for the appellant, is done by placing the evidence adduced by both parties on an imaginary scale to see which side out weighs the other in terms of probative value. See Mogaji v. Odofin (supra). From the imaginary scale a court will see the evidence which is heavier by quality and probative value as against the number of witnesses and thereafter apply the law. See Ben Jekwe & Anor v. Chief (Dr.) S.T. Alokwe & Ors. (2001) FWLR (Pt.47) 1013 at 1024. I must however, hasten to add that the system to follow in evaluating evidence is a matter of style or choice by the individual judge and each judge has his peculiar method or style. See Asafa Foods Factory Limited v. Alraine Nigeria Limited & Anor (2002) FWLR (Pt.125) 756 at 776, Olum Ogba & Ors. v. Isreal J. Onwuzo & Anor (2005) 6 SC (Pt.1) 41 at 48. The important thing in evaluation of evidence is the assessment of evidence adduced by the parties in whatever manner with a view to giving value and quality to it, and determine which side is heavier.
In the instant case, the issue of negligence was considered on pages 113 to 115 of the record of proceedings. The learned trial judge examined the evidence of DW1 and PW2, on the issue joined namely, the repair of the crankshaft being defective. The learned trial judge properly evaluated the evidence of DW1 and PW2 and it was as a consequence of the evaluation that the court made a finding on negligence. As a consequence of the evaluation, the learned trial judge stated thus on page 115:
“I believe the mechanic who testified as PW2 when he said that the “the problem of the engine block cannot damage the Crankshaft. In any event, if the engine block is defective, it cannot be turned manually. In this case it was turned manually so the problem is not with the engine block. It was however jumping to show the fault is with the crankshaft.”
In view of the above quoted passage of the judgment, the contention of the appellant that the trial court only demolished evidence of the defendant without considering that of the plaintiff cannot hold water. It is trite law that civil cases are decided on preponderance of evidence or balance of probabilities. It is the primary duty of the trial judge who had the opportunity of seeing, hearing and assessing the witnesses, to evaluate the evidence and ascribe probative value to such evidence. Once this is done, an appellate court will not interfere. See Ebba v. Ogodo (1984) 1 SCNLR 372, Oyewole v. Akande (2009) 15 NWLR (Pt.1163) 119, Ogbechie v. Onochie (1998) 1 NWLR (Pt 470) 370, Arowolo v. Olowookere (2011) 18 NWLR (Pt. 1278) 280. Consequently, this issue is also resolved against the appellant.
In view of the foregoing and the resolution of the issues against the appellant, the appeal is lacking in merit and substance and is hereby dismissed. No order as to costs.
CROSS APPEAL:
The respondent/cross appellant pursuant to an order for extension of time granted by this court on 18th March, 2008 filed a notice of Cross Appeal. The cross appeal is anchored upon two grounds of appeal, and is a challenge to the judgment of the Anambra State High Court Onitsha Judicial Division delivered on 29th June, 2006 in suit number 0/573/2005 by Hon. Justice J.I. Nweze.
The facts giving rise to the cross appeal are as follows. The respondent/cross appellant instituted an action at the High Court Onitsha against the appellant/cross respondent, claiming as per paragraph 27 of the amended statement of claim the following:
(a) The sum of N548,250.00 being special damages for breach of contract and negligence.
(b) The sum of N2,000,000.00 general damages.
The claims above were based on the repair/regrinding of Tipper crankshaft belonging to respondent/cross appellant which was taken to the appellant/cross respondent for regrinding. Upon the conclusion of trial, the court gave judgment in favour of the respondent/cross appellant but refused the claim for N9,800.00 being the cost of repair of the old engine block and awarded only N98,000.00 being loss of earning for 14 days as against N329,000.00 being loss of earning for 45 days. The cross appeal is a challenge against the refusal of the trial court to award the special damages as claimed.
In line with the Rules of Court, briefs of argument were filed and exchanged. The cross appellant’s brief dated 19th November, 2008 was filed 24th November, 2008. The cross appellant’s reply brief dated 7th April, 2008 was filed on 8th April, 2008. The cross respondent’s brief dated 23rd March , 2009 was filed on 24th March 2009. The cross respondent raised a preliminary objection to the cross appeal and argument in respect of same contained in the cross respondent’s brief which was adopted in court by Mrs. F.A. Ogbuli who represented the cross respondent. Thereafter, Mr. A.C. Anaenugwu leading Okey Abazu Esq., and J.C. Udechukwu Esq., for the cross appellant adopted argument in response to the preliminary objection contained in the reply brief and urged that same be dismissed. Learned counsel adopted the cross appellant’s brief and the reply brief and urged that same be allowed. Mrs. F.A. Ogbuli adopted and relied on the cross respondent’s brief in urging that the cross appeal be dismissed.
A consideration of the preliminary objection will first be made before proceeding to the cross appeal. The substance of the cross respondents preliminary objection, is that the motion for extension of time to file the cross appeal dated 15th November, 2007 was granted on 18th March, 2008 and cross appellant given 10 days to file notice of cross appeal. Learned counsel for the cross respondent contended that the notice of cross appeal was not filed within the 10 days as ordered by the court, hence there is no cross appeal. Learned counsel urged the court to strike out the cross appeal.
In response to the preliminary objection, learned counsel for the cross appellant stated that the contention of the cross respondent in the preliminary objection is wrong and misleading. Learned counsel contended that the motion for extension of time to file the cross appeal was granted on 18th March, 2008 and the notice of cross appeal dated 27th March, 2008 was filed on 28th March, 2008. In concluding, learned counsel urged the court to dismiss and overrule the preliminary objection.
The cross appellant’s motion on notice dated 15th November, 2007 for extension of time to file a Notice of cross appeal was heard and granted on 18th March, 2008. Pursuant to the said order for extension of time, the cross appellant was given 10 days within which to file the notice of cross appeal. By rules of computation of time and simple arithmetic, the 10 days within which to file the notice of cross appeal will expire on 28th March, 2008. See Section 15 of the Interpretation Act, Cap 192 Laws of the Federation of Nigeria 1990. The notice of cross appeal in this case is date d 27th March, 2008. By the endorsement on the notice of cross appeal and filing fees paid, the said notice of cross appeal was filed on 28th March, 2008. The notice of cross appeal having been filed on 28th March, 2008, was therefore filed within the 10 days as ordered by the court. The preliminary objection is therefore lacking in director, merit and substance and is hereby overruled and dismissed.
The cross appellant distilled a sole issue for determination from the two grounds of appeal, on page 3 of the cross appellants brief, namely:
“Whether the High Court was right to have disallowed part of the respondent’s/cross appellant’s claim for special damages.”
The cross respondent on its part also distilled a lone issue for determination on page 3 of its brief of argument, as follows:
“Whether the Plaintiff/Cross Appellant was entitled to the special damages claimed by him and whether he proved them.”
The two issues for determination submitted by the parties being identical in nature, the solitary issue for determination nominated by the cross appellant will be adopted in resolving the cross appeal.
Learned counsel for the cross appellant stated that the lower court found that the cross appellant had proved items of special damages claimed including cost of repair for the old engine block. Learned counsel contended that the court however, refused to award the cost of repairing the old engine block on the ground that it remained the property of the cross appellant and the repair had enhanced its value. Learned counsel stated that it is settled law, that the adjudicatory role of the High Court is based on the issues joined by the parties in their pleadings and evidence led in support thereof at trial. Learned counsel submitted that there was no evidence before the court, that the repair of the engine block enhanced its value, hence the court’s decision to that effect is based on speculation and extraneous matters. Learned counsel posited that there was evidence before the court, that the additional cost incurred in repairing the old engine block was consequent upon the breach of contract for regrinding the crankshaft. Learned counsel urged the court to set aside the decision of the lower court refusing the claim for the repair of the old engine block.
Learned counsel stated that the cross appellant claimed loss of earning for 45 days, but the lower court limited it to 14 days based on the wrong application of the principle of mitigation of damage. Learned counsel contended that the court took an erroneous position to the effect that cross appellant ought to have mitigated its losses by repairing the lorry and claiming the money from the cross respondent. Learned counsel argued that issues were not joined by the parties as to the length of time it took to repair the vehicle and the issue’ of mitigation of losses was never raised by any of the parties but by the court suo motu. Learned counsel contended that parties ought to have been afforded the opportunity of addressing the court on mitigation of damages. In support, reference was made to Kinfau v. Kinfau (2006) 6 NWLR (Pt.975) 200 at 217. Learned counsel contended that applying the principle of mitigation of damage, has occasioned miscarriage of justice. In support, reference was made to Ashiru Bakare & Anor v. Alfred Jelkh (1968) 1 ALL NLR 167 at 170. Learned counsel submitted that this is a proper case where this court should review the damage. In support, reference was made to Zik Press Limited v. Alvan Ikoku 13 WACA 188 at 189. In concluding, learned counsel urged the court to allow the cross appeal and grant in full the cross appellant’s claim for loss of earning.
In response, learned counsel for the cross respondent submitted that exhibit D4 contains exemption clause, limiting the liability of the defendant to not more than 10% of the value of the work delivered. Learned counsel argued that assuming and without conceding that there was privity of contract between the parties, exhibit D4 limits the amount of damages to 10% of N2,450.00 paid for regrinding the crankshaft. Learned counsel submitted that the special damages claimed and the one awarded by the court was never within the contemplation of the parties and not deducible from the terms of the contract. In support, reference was made to G.K.F. Investment Nigeria Limited v. NITEL Plc (2005) 31 WRN 107.
Learned counsel contended that the lower court ought not to have awarded any special damages, as the evidence on same was not credible. Learned counsel argued that even where the evidence on special damages is unchallenged and uncontradicted, special damage must be strictly proved by credible evidence. In support, reference was made to Gonzee Nigeria Limited v. N.E.R.D.C. (2005) 30 WRN 29. Learned counsel further submitted that there was no proof for loss of earnings, hence the claim was speculative and not foreseeable and the court ought not to have awarded it all. Learned counsel urged the court to reject the cross appellant’s claim for the cost of repair of ‘engine block, loss of earning and other special damages as they are suspect, unreliable and speculative. In concluding, learned counsel urged the court to dismiss the cross appeal.
Replying on points of law, learned counsel for the cross appellant stated that the cross respondent did not plead the exemption clause as a defence. Learned counsel submitted the exemption clause was not an issue at the trial, no evidence was led on it and the issue of the contract being subject to exemption clause was not considered or pronounced upon by the court in its judgment. Learned counsel argued that the court cannot comb through exhibit D4 and make use of any fact or material therein not pleaded nor testified upon in evidence before the lower court. In support, reference was made to the following cases: Orunengimo & Anor v. Egebe (2007) 15 NWLR (Pt.1058) 630 at 644, Nteogwuile v. Otuo (2001) 16 NWLR (Pt.738) 58 at 75. Learned counsel concluded that the cross respondent cannot rely on the purported exemption clause in exhibit ‘D4’, same having not been pleaded as a defence or otherwise raised before the lower court.
Arguing in the alternative, learned counsel stated that for the exemption clause to avail the cross respondent, it must have adduced evidence to show that the cross appellant is aware of the exemption clause. In support, reference was made to the following cases. Eagle Super Pack Nigeria Limited v. A.C.B. Plc. (2006) 19 NWLR (Pt.1013) 20 at 45, I.M.N.L. v. Pegofor Industries Limited (2005) 15 NWLR (Pt.947) 1 at 24. Learned counsel argued that failure to regrind the crankshaft to the agreed gauge was a fundamental breach of the contract, and the cross respondent cannot rely on the said exemption to avoid liability for that breach. In support, reference was made to Section 190 of the Contract Law of Anambra State, Cap 32 Revised Laws of Anambra State 1991, UBN Plc. v. Omniproducts (Nigeria) Limited (2006) 15 NWLR (Pt.1003) 660 at 677, Eagle Super Pack Nigeria Limited v. A.C.B. Plc. (supra) at 59. Learned counsel submitted that the damages claimed were a direct consequence of the breach of contract for the repair of the lorry. In support, reference was further made to Gonzee Nigeria Limited v. NERDC (supra). Learned counsel argued that remoteness of damages claimed by the cross respondent was never an issue at the trial court and the sole issue in the cross appeal is mitigation of dam age raised and decided suo motu by the lower court. Learned counsel urged that the cross appeal be allowed.
The crux of this cross appeal is on the refusal of the lower court to award the claim for the repair of the old engine block and awarding loss of earning for 14 days in place of the 45 days claimed at N7,000 per day. In refusing the claim for the repairs of the engine block, the trial court on page 117 of the record hold thus:
“The claim in respect of the cost of repairing the engine block is equally disallowed. The engine block remains the properly of the plaintiff and is in good condition. It can deal with it as desires. The cost incurred in repairing it should in my view enhance its value.”
The learned counsel for cross appellant, challenged the refusal to make the award on the ground that the reason adduced to the effect that the value of the engine has been enhanced is not supported by evidence. The cross respondent on its part relied on the exemption clause on exhibit D4 to contend that the liability of the cross respondent is limited to 10% of the value of the work submitted. Learned counsel argued that any award by the court in excess of the limitation contained in exhibit D4, should not be allowed.
I wish to start with the limitation or exemption of liability contained in Exhibit D4, as raised by the cross respondent. I have painstakingly perused the pleadings of the parties in this case, over and over. None of the pleadings raised the issue of limitation of liability as contained at the back of exhibit D4. In a way, parties did not join issues on limitation of liability and no evidence was led on it, hence the lower court did not make any pronouncement on it. As it has not been raised in the lower court, it therefore becomes a fresh issue. It is trite that parties cannot raise on appeal a question which has not been raised or tried by the trial court. Leave of court is necessary to raise it for the first time on appeal. See Akpene v. Barclays Bank of Nigeria (1927) 1 SC 47 at 52, Ali Pindar Kwajaffa & Ors. v. Bank of the North (2004) 5 SC (Pt.1) 103, Oforlette v. State (2000) 7 SC (Pt. 1) 80 at 83, F.G.N. & Ors. v. Zebra Energy Limited (2002) FWLR (Pt. 92) 1749.
The limitation/exemption clause having not been pleaded or raised before the lower court is therefore of no moment at this stage. The reasoning of the lower court in refusing the award for the cost of repairing the engine, is not based on the enhanced value alone. The lower court reasoned that the engine still remains the property of the cross appellant and he can deal with it as it desires. I do not see any fault in that reasoning and the refusal to award the cost of repairs for engine block is affirmed.
On the claim for loss of earning covering a period of 45 days at N7,000.00 per day, the trial court on page 118 of the record, held thus:
“Back to the question of loss of earnings, I am of the view that the plaintiff is not entitled to claim for loss of earnings for more than 14 days. The initial contract period was from the 4th to the 17th of May 2005 which is a period of 13 days. Allowing 2 days from the 17th of May for the detection of the fault in the crankshaft after the repair of the engine block, the plaintiff should not be allowed more than 14 days to mitigate its losses by repairing the lorry and claiming the money from the defendant. It has no justification in further delaying the repairs after the 17th of May 2005. Consequently, I hold that the plaintiff is entitled to claim for loss of earnings for 14 days and no more.”
The grouse of the cross appellant with the above position as taken by the lower court, is that the issue of mitigation of losses was not raised. Learned counsel argued that the issue was raised suo motu by the court and parties were not given an opportunity to address the court. At this stage, I will digress a little, to briefly consider the concept of mitigation of loss in law. The plaintiff is expected to take all reasonable steps to mitigate the loss which he has sustained upon the defendant’s wrong and if he fails to do so he cannot claim damages for any such loss which he ought reasonably to have avoided. Where the plaintiff does mitigate his loss he cannot recover damages in respect of that avoided loss. Conversely, the onus of proof on the issue of mitigation is on the defendant and if he fails to discharge the burden, the damages proved will be awarded. See Halsburys Laws of England, 4th Edition, volume 12(1), paragraph 1041, British Westinhouse Company v. Underground Electric Company (1912) AC 673, Garnac Grain Company v. Fanre & Faircloagh Limited (1968) AC 1130 at 1140, Reynolds v. Rockonoh (2005) 4 SCNJ 14, Akanbi v. Alatede Nigeria Limited (2000) FWLR (Pt.11) 1928.
Now coming back to the case at hand, the two questions that readily come to mind is whether there was evidence in proof of the loss of earning and whether the defendant has discharged the onus on him as to mitigation of losses. Once there is evidence, it is not open to the trial court to make its individual assessment of special damages, but must act strictly on the evidence adduced before it establishing the amount to be awarded. See Adel Boshali v. Allied Commercial Exporters Limited (1961) 1 ALL NLR 917. A claim for special damages must be strictly proved. I must however add, that the proof of special damage is not radically different from the general method of proof in civil cases. It is equally proved on a balance of probability. See S.N. Nwabuoku v. P.N. Ottih (1961) 1 ALL NLR 487, Oshinjinrin & Ors. v. Alhaji Elias & Ors. (1970) 1 All NLR (Pt.1) 153 at 156.
Though the issue raised in the cross appeal does not raise proof per se, but the issue of mitigation of losses. I however deemed it necessary to briefly consider the aspect of proof in the light of the submissions made by the cross respondent, to the effect that special damages must be strictly proved even when the evidence is unchallenged and uncontradicted. Where the evidence adduced by the plaintiff on special damages is neither challenged nor contradicted, his onus of proof is discharged on a minimal proof. The cross appellant through PW3 and PW4, had led unchallenged and uncontradicted evidence as to the daily earning of the vehicle and the loss of earning.
I will now revert back to the issue of mitigation of losses, with a view to determining whether the defendant has discharged his onus in that wise. A quick revisit to the pleadings will show that mitigation of loss or facts to that effect were not pleaded, hence issues, were not joined on mitigation of loss. Evidence was also not led on mitigation of loss, it rather surfaced at the judgment, and parties not afforded opportunity of airing their views on it. In the circumstance, the cross respondent as defendant has also failed to discharge the onus on it to show that the plaintiff failed to take reasonable step to mitigate its losses. See Kosile v. Folarin (1989) 3 NWLR (Pt.107) 1. The lower court was therefore in error to have smuggled mitigation of losses at a late stage in order to prune down a claim for special damages which has been proved by evidence. In such a circumstance this court can intervene. See Ediogbonyo v. Dumez (Nigeria) Limited (1986) 3 NWLR (Pt.31) 761, Zik Press Limited v. Alvan Ikoku (supra), (IBN Limited v. Odusote Bookstores Limited (1995) 9 NWLR (Pt. 421) 588, Solanke v. Ajibola (1969) 1 NMLR 253, A.C.B. Limited v. Apugo (2001) 5 NWLR (Pt.707) 483. In the circumstance, the award made for loss of earning for 14 days is hereby set aside and in its place an award is hereby made for the 45 days.
In view of the foregoing, the cross appeal succeeds in part, as it relates to the award made in respect of loss of earning. The judgment of the lower court is hereby affirmed save for the award made for loss of earning which has been set aside and in its place an award is hereby made for 45 days in the sum of N329,000.00 as claimed by the Cross Appellant. No order as to costs.
AYOBODE O. LOKULO-SODIPE, J.C.A: I have had the privilege of reading in advance the judgment of my learned brother, Adamu Jauro, JCA; in this appeal. I am in total agreement with his lordship’s reasoning and conclusions. I have nothing to add to it and I adopt the judgment as mine.
Accordingly, I find the main appeal to be lacking in merit and hereby dismiss the same.
The cross-appeal succeeds in part, as it relates to the award in respect of loss of earnings only. In the circumstance, the judgment of the lower court is hereby affirmed, save that the award made by the court in respect of loss of earnings, is set aside and in its place an award in that regard, is made for 45 days, in the sum of N329,000.00 as claimed by the Cross-Appellant.
I make no order as to costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A: I have the advantage of reading before now, the judgment of my learned brother ADAMU JAURO JCA. He has carefully dealt with the law as well as the facts, that I cannot but wholly associate myself with his reasoning and conclusion thereto.
I too hold that the appeal is unmeritorious and it is hereby dismissed while the cross appeal is allowed in part to the extent of the loss of earnings which estimate for 14 days by the lower court is hereby set aside and in its place award, loss of earnings for 45 days. I also abide by the order as to costs.
Appearances
Mrs. F.A. OgbuliFor Appellant
AND
Mr. A.C. Anaenugwu,
Okey Abazu Esq., and
J.C. Udechukwu Esq.,For Respondent
