HOME PAGE INDUSTRIES LIMITED v. TNT COURIER SERVICES LIMITED
(2018)LCN/11883(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 10th day of July, 2018
CA/L/366/2017
RATIO
CONTRACT: THE CONSTRUCTION OF DOCUMENT FOR A CONTRACT
“It is trite law that in the construction of a document, the cardinal principle is that the parties are presumed to intend what they have in fact said or written down. Therefore the words employed by them will be so construed and should be given their ordinary and plain meaning unless where circumstances such as trade usage or the like dictate that a particular construction ought to be applied in order to give effect to the particular intention envisaged by the parties. In pauciloquent terms, the guide in the interpretation of the provisions of a written contract is that nothing should be read into a contract other than what its clear and plain words indicate. The contract is to be given the plain and ordinary meaning of the words employed. See UNION BANK vs. NWAOKOLO (1995) 6 NWLR (PT 400) 127, CITY ENGINEERING (NIG) LTD vs. FHA (1997) LPELR (868) 1 at 42 and LEWIS vs. UBA (2016) LPELR (40661) 1 at 25.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
COURT AND PLEADINGS: WHETHER PARTIES ARE BOUND BY THEIR PLEADINGS
“It is hornbook law that parties are bound by their pleadings and evidence at variance with the pleadings must be discountenanced as they go to no issue. It is further trite that it is not open to a party to depart from his pleadings and put up a case different from the one pleaded. See UMUKORO vs. NPA (1997) LPELR (3376) 1 at 13, AKPAKUNA vs. NZEKA (1983) LPELR (384) 1 at 48-49, SKYE BANK vs. AKINPELU (2010) LPELR (3073) 1 at 6, ALHASSAN vs. ISHAKU (2016) LPELR (40083) 1 at 68 and BASSIL vs. FAJEBE (2001) LPELR (757) 1 at 13.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
HOME PAGE INDUSTRIES LIMITED Appellant(s)
AND
TNT COURIER SERVICES LIMITED Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Lagos State, Coram: Adamson, J. in SUIT NO. LD/2418/2010: HOME PAGE INDUSTRIES LTD vs. TNT COURIER SERVICES LTD. The facts that spawned the appeal are that the Appellant, which was the Claimant at the lower Court, was expecting a courier package from its business partners in Iran, which package contained a Bill of Lading for goods shipped to the Appellant and which goods were aboard a vessel that was to berth at Apapa Port. The Appellant’s case is that the Respondent was in breach of the contract having failed and/or neglected to deliver the package, which it received on 25th March 2009, to the Appellant until 24th April 2009.
The Respondent’s case is that the delay in delivering the package to the Appellant was occasioned by the National Drug Law Enforcement Agency (NDLEA) having put the package ‘ON HOLD’ and that by the exclusion clause in its contract with the Appellant, it would not be liable for breach of contract due to a delay in delivery caused by third parties.
The Appellant maintained that the Respondent breached the contract having failed, as advised by the NDLEA, to inform the Appellant that the package had been put on hold.
The parties filed and exchanged pleadings and after a full dressed hearing at which testimonial and documentary evidence was adduced, the lower Court dismissed the Appellant?s case. The Appellant being dissatisfied appealed against the said judgment. The scarified judgment of the lower Court which was delivered on 7th November 2016 is at pages 176-191 of the Records, while the Notice of Appeal which was filed on 23rd December 2016 is at pages 192-196 of the Records.
The Records of Appeal having been compiled and transmitted, briefs of argument were filed and exchanged. The Appellant?s Brief was filed on 26th April 2017, while the Respondent?s Brief was filed on 6th December 2017 but deemed as properly filed on 30th April 2018. At the hearing of the appeal, Chigbo Anaenugwu, Esq., (Emmanuel Urama, Esq. with him), learned counsel for the Appellant and Chief Emeka Okpoko, SAN (with K. C. Okechukwu, Esq.), learned Senior Counsel for the Respondent urged the Court to uphold their respective submissions in the determination of the appeal.
The Appellant crafted two issues for determination, namely:
i. Whether the learned trial Judge placed a proper construction on the Defendant’s Exhibit D2, that is, the ?Terms and Conditions of Carriage of TNT Express
ii. Whether the lower Court was right in holding that the Claimant/Appellant’s failure to call evidence of the official of National Drug Law Enforcement Agency (NDLEA) was fatal to its case
The Respondent equally framed two issues for determination, as follows:
1. Whether the trial Judge was right when he held that the exemption clause contained in the terms and conditions of carriage of the Respondent (Exhibit D2) avails the Respondent.
2. Whether the trial Court was right in holding that the Appellant’s failure to lead evidence that the Defendant was advised by NDLEA official to inform the Claimant of the seizure puts a dent to the Claimant’s claim.
The issues distilled by the parties are the same two and tuppence. However, on account of its succinct and apt nature, the formulation of the issues by the Respondent would serve as our guide in the consideration of the submissions of learned counsel and determination of this appeal.
ISSUES FOR DETERMINATION
ISSUE NUMBER ONE
Whether the trial Judge was right when he held that the exemption clause contained in the terms and conditions of carriage of the Respondent (Exhibit D2) avails the Respondent.
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant contends that the lower Court did not properly construe Exhibit D2, the terms and conditions of carriage of the Respondent. It was submitted that if the lower Court had properly evaluated the evidence, it would not have fallen into the misconception that the Respondent was exempted from any claims arising from the acts of the third party, NDLEA. It was stated that the Appellant established that there was a delay of one month before the delivery of the package and that it was a breach of the Respondent?s duty to dispatch the package within a reasonable time.
The Appellant maintained that the delay was caused by the Respondent which failed to inform it, as advised by NDLEA, that the package had been placed on hold. It was posited that the Respondent?s sole witness agreed under cross-examination that it is the normal and usual practice to notify the recipient of a consignment of its seizure by a government agency but that the Respondent failed to so notify the Appellant, which caused the delay in delivering the package. The Appellant maintained that the delay was due to the negligence of the Respondent which failed to notify the Appellant of the seizure of the package by NDLEA and thereby occasioned a breach of contract as a result of which the Appellant suffered loss. It was stated that the breach was fundamental and disentitled the Respondent from relying on the exemption clause. The cases of ASAFA vs. ALRAINE (2002) 10 MJSC 162 at 173 and BOSHALI vs. ALLIED COMMERCIAL EXPORTERS LTD (1961) ALL NLR 946 were referred to.
It is the further submission of the Appellant that mere general words in an exemption clause do not absolve a party from liability arising from negligence and that the exemption clause cannot exclude liability for negligent execution of a contract. The cases of FBN PLC vs. ASSOCIATED MOTORS CO. LTD (1998) 10 NWLR (PT 570) 441 at 462, UNION BANK vs. OMNIPRODUCTS (NIG) LTD (2006) 15 NWLR (PT 1003) 660 and EAGLE SUPER PACK (NIG) LTD vs. ACB PLC (2006) 19 NWLR (PT 1013) 20 at 59 were relied upon. It was opined that the evidence is that the package would have been delivered within two working days of arrival and that for it to take one month was not reasonable, and would have been avoided if the Respondent had notified the Appellant of the seizure by NDLEA. The case of NBCI vs. INTEGRATED GAS LTD (2005) 3 MJSC 40 was cited in support.
The Appellant asserted that exemption clauses are expressed clearly and without ambiguity and that the words of the exemption clause do not expressly exempt the Respondent from the consequences of the negligence of its employees, showing an intention not to exclude all liability without exception. The case of FBN PLC vs. ASSOCIATED MOTORS CO. LTD (supra) at 462-463 and Chitty on Contracts, Vol. 1, 30th Edition, pages 911-912 were called in aid.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent referring to Clauses 3 and 12 of Exhibit D2 submits that the lower Court was right to hold that the exemption clause exempts the Respondent from liability for acts of third parties. It was maintained that it was not a part of the contract for the Respondent to inform the Appellant immediately the package was seized by NDLEA. It was posited that where the language in a document is clear and unambiguous it must be given its ordinary and natural meaning and oral evidence cannot be led to prove documentary evidence. The case of CDC (NIG) LTD vs. SCOA (NIG) LTD (2007) 6 NWLR [no part] 300 at 314 was referred to.
It was contended that the Appellant’s contention on delivery within a reasonable time was in a normal situation where there was no intervening factor making it impossible to deliver within a reasonable time; the intervening factor, in this case, being the NDLEA ‘on hold’ stamp on the package. It was asserted that the lower Court properly construed and evaluated Exhibit D2 and came to the correct conclusion that the exemption clause exonerated the Respondent. It was conclusively stated that parties are bound by the contract they enter and that the lower Court was right in holding that the Appellant was bound by the terms in Exhibit D2.
RESOLUTION OF ISSUE NUMBER ONE
The quodlibet in this issue is the interpretation of the exemption clause in the contract between the parties. It is trite law that in the construction of a document, the cardinal principle is that the parties are presumed to intend what they have in fact said or written down. Therefore the words employed by them will be so construed and should be given their ordinary and plain meaning unless where circumstances such as trade usage or the like dictate that a particular construction ought to be applied in order to give effect to the particular intention envisaged by the parties. In pauciloquent terms, the guide in the interpretation of the provisions of a written contract is that nothing should be read into a contract other than what its clear and plain words indicate. The contract is to be given the plain and ordinary meaning of the words employed. See UNION BANK vs. NWAOKOLO (1995) 6 NWLR (PT 400) 127, CITY ENGINEERING (NIG) LTD vs. FHA (1997) LPELR (868) 1 at 42 and LEWIS vs. UBA (2016) LPELR (40661) 1 at 25.
It is against the background of this settled state of the law that the interpretation of Exhibit D2, the contract between the parties, has to be approached. In the diacritical circumstances of this matter, the pivotal provisions of Exhibit D2 are Clauses 3 and 12. Exhibit D2 is copied on pages 33-37 of the Records; Clause 3 thereof provides as follows:
3. YOUR ACCEPTANCE OF OUR TERMS AND CONDITIONS
By giving us your shipment you accept our terms and conditions set out in this contract of carriage on behalf of yourself or anyone else who has an interest in the shipment irrespective of whether you have signed the front of our consignment note or not. Our terms and conditions also cover anyone we use to collect, transport or deliver your shipment. None of our employees, agents or subcontractors are authorised to waive, alter or modify these terms and conditions. When you give us the shipment with oral or written instructions that conflict with our terms and conditions we shall not be bound by such instructions. (See pages 33-34 of the Records)
The above stipulation is clear on the terms and conditions in Exhibit D2 being binding on the parties as well as the Respondent’s employees, agents or subcontractors. In the circumstances, since the language employed is plain and admits of only one meaning, the task of interpretation is negligible. See NWANGWU vs. NZEKWU (1957) 3 FSC 36, ORIENT BANK (NIG) PLC vs. BILANTE INT?L LTD (1997) 8 NWLR (PT 515) 37 at 78 and LEWIS vs. UBA (supra).
Now, the parties having agreed that they would be bound by the terms and conditions in Exhibit D2, the stipulations of Clause 12 come into play. On the facts of this matter, it is not confuted that the package arrived in a timely manner. Upon arrival, officials of NDLEA put the delivery of the package ‘ON HOLD’. On account of this, the package could not be delivered to the Appellant until one month later, after the restriction on delivery by the ‘ON HOLD’ stamp of NDLEA had been resolved. The facts are thus effulgent that the delayed delivery of the package was as a result of the action of NDLEA. Clause 12 of Exhibit D2 stipulates as follows:
12. EXCLUSIONS
12.1 We are not liable for any consequential or special damages or loss (including loss of income, profits, markets, reputation, use of contents or loss of an opportunity) or other indirect loss arising from the loss, damage, delay, misdelivery or non-delivery of shipment even if we had knowledge that such damages or loss might arise.
12.2 We are not liable if your shipment or any part of it is lost, damaged, delayed or mis-delivered or not delivered at all as a result of:
a) circumstances beyond our control such as (but not limited to) acts of god including earthquakes, cyclones, storms, flooding, fire, disease, fog, snow or frost, force majeure including war, accidents, acts of public enemies, strikes, embargoes, perils of the air, local disputes or civil commotions; national or local disruptions in air or ground transportation networks and mechanical problems to modes of transport or machinery; latent defects or inherent vice in the contents of the shipment.
b) your acts or omissions or those of third parties such as:
”you being in breach of (or any other party claiming an interest in the shipment causing you to breach) your obligations under these terms and conditions and in particular those warranties set out in Clause 10 in the long form version an act or omission of any customs, airline, airport or government official.
c) The contents of the shipment consisting of any article that is a prohibited item even though we may have accepted the shipment by mistake.
12.3 We are not a common carrier and do not accept from you any liabilities of a common carrier. Under normal circumstances we do not accept shipments sent to and from residential addresses.?
(See pages 35-36 of the Records)
The above stipulation is clear in its provision exempting the Respondent from liability for delayed delivery of a shipment as a result of the act or omission of a government official. As earlier stated, the delayed delivery was occasioned by the action of NDLEA putting the package on hold. The gravamina of the Appellant’s contention is that the Respondent was negligent in not informing the Appellant immediately NDLEA put the package on hold and so the exemption clause would not avail the Respondent since the words employed in the exemption clause do not sufficiently indicate that the Respondent would be absolved of liability for negligence.
Let me reiterate that the law remains that in interpretation of contracts, the words employed, where they are clear and unambiguous, should be given their plain, ordinary and natural meaning. The words in Clause 12 (2) (b) of Exhibit D2 reproduced above are clear in its stipulation that the Respondent will not be liable where a shipment is delayed as a result of an act or omission of any government official. There is nothing therein requiring that the Respondent would not have been negligent in the circumstances surrounding the act or omission of the government official. In ADETOUN OLADEJI vs. NIGERIAN BREWERIES PLC (2007) LPELR (160) 1 at 14, Tobi JSC stated:
“The meaning to be placed on a contract is that which the plain, clear and obvious result of the terms used in the agreement. See Aouad v. Kessrawani (1956) NSCC 33, (1956) 1 F.S.C. 35, SCNLR 83. When constructing document in dispute between the parties, the proper course is to discover the intention or contemplation of the parties and not to import into the contract, ideas not potent on the face of the document. See Amadi v. Thomas Aplin Co. Ltd (1972) 4 SC 228, (1972) 7 NSCC 262. Where, there is a contract regulating any arrangement between the parties, the main duty of the Court is to interpret that contract to give effect to the wishes of the parties as expressed in the contract document. See Oduye v. Nigeria Airways Limited (1987) 2 NWLR (Pt.55) 126. In the construction of documents, the question is not what the parties to the document may have intended to do by entering into that document, but what is the meaning of the words used in the document. See Amizu v. Dr. Nzeribe (1989) 4 NWLR (Pt. 118) 755. However, where the meaning of words used are not clear, the Court will fall back on the intention behind the words. Above all, it is not the function of a Court of Law to make agreements for parties or to change their agreement as made. See African Reinsurance Corporation v. Fantaye (1986) 1 NWLR (Pt.14) 133.”
The Appellant’s contention is an invitation for the Court to import into the contract, ideas that are not potent on the face of the document, id est, that the exemption clause will not avail the Respondent where the Respondent has been negligent. The Appellant agreed to Clause 3, that Exhibit D2 would govern their relationship, the duty of the Court is to give effect to the stipulation expressed in the contract:
ODUYE vs. NIGERIA AIRWAYS LTD (supra). The Appellant?s submission is for the Court to make an agreement or change the agreement made by the parties. This is not the function of the Court; I am therefore not enthused by the invitation. See AFRICAN REINSURANCE CORPORATION vs. FANTAYE (supra), BOOKSHOP HOUSE LTD vs. STANLEY CONSULTANT LTD (1986) 3 NWLR (PT 26) 87 at 97 and AFROTEC TECHNICAL SERVICES (NIG) LTD vs. MIA & SONS LTD (2000) 12 SC (PT II) 1 at 33-34 or (2000) 15 NWLR (PT 692) 730 at 772 and 784.
In the circumstances, the lower Court was correct when in construing the contract between the parties, it gave the words employed their plain, ordinary and natural meaning when it held:
”It is trite law that parties are bound by their terms of contract and that there is no rule of law that exception clause is nullified by breach of contract or breach of a fundamental term, but in each case the question is one of construction of the contract whether the exception clause was intended to give exemption from the consequences of a fundamental breach.” (See page 188 of the Records)
The lower Court continued at page 189 of the Records stating thus:
”The Courts have held that in order to determine whether the exclusion clause will exempt the party that such an intention must be deduced from the construction of the terms of the contract between the parties. In other words, having regard to the terms and circumstances of the contract, was it the intention of the parties that even if a fundamental term of the contract (in this case an express or implied warranty) had been breached, the exclusion or exemption clause would nevertheless apply
The lower Court then held conclusively as follows on pages 190-191 of the Records:
”The plank of the Claimant claim is for negligence found on a breach of contract on the failure and or omission of the Defendant to deliver the shipment within reasonable time, it is clear from the terms as stated above that the defendant is exempted from any claim arising from acts of third parties and by clause 3 the Claimant is bound by that terms having agreed that its shipment be delivered by the Defendant. In the circumstance of this case this Court is of the considered opinion that there is no breach of contract … and that by the exclusion clause the Defendant is avail of any liability even if it was found that the Defendant was in breach.”
In the light of the foregoing, this issue number one is resolved against the Appellant. The lower Court placed the proper construction on Exhibit D2 and was correct in its decision that the exclusion clause in Exhibit D2 avails the Respondent.
ISSUE NUMBER TWO
Whether the trial Court was right in holding that the Appellant’s failure to lead evidence that the Defendant was advised by NDLEA official to inform the Claimant of the seizure puts a dent to the Claimant’s claim.
SUBMISSIONS OF THE APPELLANT?S COUNSEL
The Appellant submits that the Respondent pleaded that the delayed delivery was due to NDLEA placing the package on hold and that in reaction thereto the Appellant pleaded and led uncontroverted evidence that the NDLEA advised the Respondent to inform the Appellant about the package being on hold, which it failed to do. It was maintained that the finding of the lower Court on the failure by the Appellant to call an official of NDLEA is perverse because the lower Court did not consider the uncontroverted facts in the Reply to the Statement of Defence, it failed to properly analyse the evidence elicited from the Respondent’s sole witness in cross examination that the normal practice in mail delivery is to notify the recipient where a package had been confiscated by a government agency; thus making it immaterial that the official of NDLEA was not called.
The Appellant further submitted that the lower Court deviated from the established principles of confining itself to the issues raised by the parties as the issue was whether the Respondent notified the Appellant of the seizure of its package by NDLEA, which issue was resolved by the Respondent?s witness testimony that there was no such notification thereby establishing the issue. The cases of ARHURHU vs. DELTA STEEL COMPANY LTD (1997) 3 NWLR (PT 491) 82, UDO vs. WILLIAM (1997) 1 NWLR (PT 483) 548, ECO INTERNATIONAL BANK PLC vs. NULGE, JALINGO LOCAL GOVERNMENT COUNCIL (2015) 10 NWLR (PT 1466) 49 at 84-85 and FIRST BANK vs. I. A. S. CARGO AIRLINES (NIG.) LTD (2015) 3 NWLR (PT 1445) 1 at 24 were referred to.
It was conclusively submitted that if the lower Court had dispassionately considered the Appellant’s case, it would not have made the error of misconception that the evidence of an NDLEA official was necessary to establish negligence and the consequent breach of contract by the Respondent. This Court was urged to set aside the decision of the lower Court since it is a product of the said misconception. The case of OYEWALE vs. OYESORO (1998) 2 NWLR (PT 539) 663 was relied upon.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that he who asserts must prove and that the lower Court was therefore right when it held that the failure by the Appellant to call an NDLEA official to testify put a dent on its claim. It was asserted that the issue of the NDLEA advising the Respondent to inform the Appellant of the package being put on hold was introduced by the Appellant in the Reply to the Statement of Defence and it therefore had a duty to prove the same by calling the officer(s) who gave the advice. Section 135 of the Evidence Act and the case of SOKWO vs. KPONGBO (2008) 12 SCM (PT 1) 188 were cited in support. The Respondent further submits that the Appellant having failed to call the NDLEA official, the burden of proof never shifted to the Respondent.
RESOLUTION OF ISSUE NUMBER TWO
Let me start by saying that the manner of resolution of issue number one has rendered the disceptation in this issue academic. This is so because whether negligence on the part of the Respondent was established by the testimony of the Respondent?s witness that the normal practice is to inform the recipient where a package is seized by a government agency or whether it was not fatal that the NDLEA official was not called to testify, the bottom line remains that the exemption clause in the contract between the parties absolved the Respondent from liability for the delay.
Howbeit, this being an intermediate appellate Court, I will still consider and resolve the disparate contentions of learned counsel on this issue number two. The case at the lower Court was fought on the pleadings filed by the parties. The case made out by the Appellant in its Statement of Claim and on which it adduced evidence is as borne out by paragraphs 6, 7, 8, 9, 12 and 13 of the Statement of Claim, where it is inter alia, averred as
6. The Claimant avers that the said Bill of Lading arrived the Defendant?s Lagos office on the 25th of March, 2009 and the Defendants retained same failed and/or neglected to forward same to the Claimant until the 24th of April 2009.
7. The Claimant avers that the delay in forwarding the said Bill of Lading within time by the Defendant has caused the Claimant serious loss and damage in demurrage to the tune of N1, 489,800.00k (One Million Four Hundred and Eight – Nine Thousand Eight Hundred Naira). The receipt evidencing payment of this sum shall be founded upon at the hearing.
8. The Claimant avers that the Defendant was at all material time under a duty as mail delivery agent to dispatch the said Bill of Lading to the Claimant within time and having failed to do so was in breach of that duty.
9. The failure of the Defendant to so deliver the said Bill of Lading till the 24th of April 2009, one month after receiving the said package amounts to breach of duty and consequent loss to the Claimant who had to pay extra cost to clear the goods and excessive Bank Interest Charges on the borrowed capital for the importation of the goods.
12. The Claimant avers that the Defendant failed to exercise due diligence of those concerned in mail services to ensure that the said Bill of Lading was dispatched to the Claimant within reasonable time and will contend at the hearing that 1 (one) month is not a reasonable time.
13. The Claimant will contend at the trial that the Defendant owed him a duty of care which duty was breached by the Defendant by reason of non delivery of the mail containing the Bill of Lading to it and which led to the loss incurred by the Claimant.(See pages 3-4 of Records)
In succinct terms, the case is that the Respondent delayed delivery of the package for one month before delivering it to the Appellant as a result of which the Appellant suffered damages and loss.
In meeting this case made out by the Appellant, the Respondent made out a defence that it was not responsible for the delay since it was as a result of NDLEA placing the parcel ?ON HOLD? and that they could only deliver when NDLEA released the package. The averments in Paragraphs 6, 7, 8, 9, 11 and 12 of the Amended Statement of Defence and on which the Defendant adduced evidence are relevant. They read:
6. The Defendant in specific response to paragraph 7, 8 and 9 of the Statement of Claim avers that they are not liable for the delay in shipment, delivery of the bill of lading and alleged damages or loss suffered by the Claimant.
7. Further to the above, the Defendant avers that the delay was caused by the National Drug Law Enforcement Agency (NDLEA) a Governmental regulatory agency that placed ‘on hold’ stamp on the parcel an action which was beyond the control and influence of the Defendant.
8. The Defendant avers that upon arrival of the shipment in their Lagos office on 25th March 2009, officials of the National Drug Law Enforcement Agency (NDLEA) stormed their office on tip off to specifically investigate the origin and content of the Claimant?s shipment.
9. The National Drug Law Enforcement Agency (NDLEA) officials consequently placed an ?on hold? stamp on the said parcel. The National Drug Law Enforcement Agency (NDLEA) register showing that the parcel was placed ?on-hold? is hereby pleaded and the Claimant shall rely on the same at the trial of suit.
11. The Defendant avers that upon the release of the shipment by the National Law Enforcement Agency (NDLEA), the Defendant preceded [sic] to deliver the parcel timeously to the Claimant.
12. The Defendant further avers that the Claimant is not entitled to any damages or special damages at all as such alleged loss or damages are not in any way attributed or connected to the any act or acts of the Defendant. (See pages 146-147 of the Records)
In reaction to the case made out by the Respondent that it was the placing of the package on hold by NDLEA that caused the delay, the Appellant filed a Reply to the Statement of Defence averring that NDLEA officials advised the Respondent to inform the Appellant that the package had been placed on hold but it neglected and failed to do so. The Appellant’s averment in Paragraphs 5 and 10 of the Reply to the Statement of Defence is as follows:
5. In response to paragraph 7 of the Statement of Defence, the Claimant admit that the officers of the National Drug Law Enforcement Agency placed ‘on hold’ stamp on the parcel. However, the same officers advised the Defendant to inform the Claimant of the position and which advise the Defendant neglected and/or failed to do.
10. The Claimant avers that its Managing Director proceeded immediately to the office of the NDLEA and protested the seizure of the parcel, without inviting the Claimant. The officer in charge informed him that they advised the Defendant to inform the Claimant of the seizure of the parcel and that they were only conducting a routine check on documents coming from certain designated countries. (See pages 68 and 69 of the Records)
So at the close of pleadings, the issue raised by the Appellant was that the Respondent failed to heed the NDLEA advice to inform it of the package being put on hold. From the pleadings, the Appellant did not make out any case of the practice in the courier business of notifying the recipient where a package is seized by a government agency. The case it made out and took to trial and which it was obligated to adduce evidence in proof of was that the NDLEA advised the Respondent to inform the Appellant that the parcel had been put on hold, and the Respondent neglected and failed to do so.
It is hornbook law that parties are bound by their pleadings and evidence at variance with the pleadings must be discountenanced as they go to no issue. It is further trite that it is not open to a party to depart from his pleadings and put up a case different from the one pleaded. See UMUKORO vs. NPA (1997) LPELR (3376) 1 at 13, AKPAKUNA vs. NZEKA (1983) LPELR (384) 1 at 48-49, SKYE BANK vs. AKINPELU (2010) LPELR (3073) 1 at 6, ALHASSAN vs. ISHAKU (2016) LPELR (40083) 1 at 68 and BASSIL vs. FAJEBE (2001) LPELR (757) 1 at 13.
So the case made out by the Appellant and which it is not permitted to depart from is that the Respondent occasioned the delay which caused the breach of contract by neglecting and failing to notify it of the seizure of the package as it was advised to do by the NDLEA. This is the case the Appellant was to prove. The law remains that a party should be consistent in stating his case and consistent in proving it. He cannot take one stance in his pleadings and take a difference stance during trial. See AJIDE vs. KELANI (1985) LPELR (302) 1 at 35. In view of the stance which the Appellant took in the pleadings in making out his case, he cannot make a volte face to rely on the evidence adduced in cross-examination, the facts of which were not pleaded, that the normal practice is to inform the recipient where the package is seized by a government agency.
In arriving at the finding that the failure by the Appellant to call the NDLEA official affected its case, the lower Court reasoned and stated as follows at pages 188 of the Records:
”In the instant case the Claimant by his pleadings claimed that the Defendant failed and omitted to deliver its shipment within reasonable time relying also on the testimony of the Claimant witness (CW1) that the shipment arrived Lagos on the 25th of March, 2009 and same was not received until 24th of April, 2009 and that the delay occasioned loss in damages.
Whilst, the Defendant in its pleadings stated that the shipment was placed on hold by the Nigeria Drug and Law Enforcement Agency and in furtherance to its pleading relied on the testimony of the DW1 who said that the shipment could not be sent to the Claimant because of the act of NDLEA.
The Claimant admitted that he found out that its shipment was placed on hold by the Defendant but that he was informed by an official of NDLEA that the Defendant’s were advised to inform the Claimant of the seizure. It is interesting to note that the Claimant did not call evidence in respect of this assertion so as to suggest to this Court that the buck lies at the table of the Defendant, because by leading such evidence the evidential burden will further shift to the Defendant.
In the circumstance of this case, this Court hold and find that the failure of the Claimant to lead evidence to the effect that the Defendant was advised by the NDLEA official to inform the Claimant of the seizure puts a dent to the Claimant’s claim.”
The lower Court then conclusively held at page 190-191 of the Records that:
”In the circumstance of this case this Court is of the considered opinion that there is no breach of contract based on the above stated findings that the Claimant failed to call evidence on the advised [sic] by the official of NDLEA that the Defendant should inform Claimant of the seizure …”
There is no doubt that the above findings are correct. It is not the product of any error of misconception as contended by the Appellant. Without a doubt, the Appellant’s sole witness testified that the NDLEA official told him that he advised the Respondent to inform the Appellant about the package being put on hold. But while that testimony may be true of what the Appellant was told, it cannot establish the fact in issue which is that NDLEA advised the Respondent to inform the Appellant that the package had been put on hold. The evidential rule on hearsay testimony remains good law. In UTTEH vs. THE STATE (1992) LPELR (6239) 1 at 21, Nnaemeka-Agu, JSC stated thus:
“As Taylor has put it in his classic on ”Evidence” (12th Ed. p.363): ”In its legal sense ‘hearsay’ evidence is all EVIDENCE which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person.If any such evidence is designed to prove the truth of the statement and not merely the fact that the statement was made, then it is hearsay and inadmissible. See Subramaniam v. Public Prosecutor (1956) 1 W.L.R. 965, at p.969, P.C.”
So the testimony of the Appellant’s sole witness, see paragraphs 3 and 8 of Additional witness statement on oath Exhibit A1 (on pages 71-72 of the Records) as to what the NDLEA official told him is hearsay and inadmissible to establish the truth of what is contained in the statement, id est, that NDLEA advised the Respondent to inform the Appellant of the package having been placed ON HOLD by NDLEA. See UTTEH vs. THE STATE (supra) at 11, BUHARI vs. OBASANJO (2005) LPELR (815) 1 at 209, ARMELS TRANSPORT LTD vs. MARTINS (1970) LPELR (556) 1 at 7, EGWONOWO vs. YAKUBU (2017) LPELR (43355) 1 at 16-17 and Section 126 of the Evidence Act. The case the Appellant made out could only have been established by the testimony of the NDLEA official who allegedly gave the advice to the Respondent. It was an issue raised by the Appellant and it bore the evidential burden of proving the same. Alas, it failed to discharge the burden and the lower Court rightly held that it put a dent on the Appellant’s claim.
In the circumstances, this issue number two is resolved in favour of the Respondent. The lower Court was right in holding that the Appellant’s failure to call evidence of the official of NDLEA was fatal to the Appellant’s case.
Conclusively, the issues for determination having been resolved against the Appellant, the appeal is entirely devoid of merit and it is hereby dismissed. The decision of the lower Court is affirmed. The Respondent is entitled to the costs of this appeal which I assess and fix at N 100,000.00.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the priviledge of reading the lead judgment of my learned brother UGOCHUKWU ANTHONY OGAKWU, JCA just delivered with which I adopt as mine. I have nothing more to add.
JAMILU YAMMAMA TUKUR, J.C.A.: I had the privilege of reading before today the draft of the judgment delivered by my learned brother UGOCHUKWU ANTHONY OGAKWU, JCA.
I agree with his reasoning and conclusion. The appeal is dismissed by me. I abide by the consequential orders in the lead judgment.
Appearances:
Chigbo Anaenugwu, Esq. with him, Emmanuel Urama, Esq.For Appellant(s)
Chief Emeka Okpoko, SAN with him, K.C. Okechukwu, Esq.For Respondent(s)
