UNITED PARCEL SERVICE V. KOSOKO ADEYOSOYE
(2010)LCN/3962(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of July, 2010
CA/B/167/2005
RATIO
ADMISSION OF A DOCUMENT: CONDITION FOR ADMITTING A DOCUMENT IN THE ABSENCE OF THE MAKER UNDER THE PROVISION OF SECTION 91 OF THE EVIDENCE ACT
Section 91 of the Evidence Act makes provisions for the admission of a document in the absence of the maker. Such a document to be admissible, it must be shown that the maker had personal knowledge of document amongst other conditions. None of these conditions was satisfied before this document was admitted in evidence. PER GEORGE OLADEINDE SHOREMI J.C.A.
PLEADINGS: WHETHER EVIDENCE LED AS TO FACTS NOT PLEADED OR WHICH IS INCONSISTENT WITH THE PLEADINGS GOES TO NO ISSUE
The law is that parties are bound by their pleadings and evidence led as to facts not pleaded or which is inconsistent with the pleadings goes to no issue. See Ndoma Egba v. Chukwuogor (2004) 8 NWLR Pt.869 P. 832 at 4325-426. PER GEORGE OLADEINDE SHOREMI J.C.A.
SPECIAL AND GENERAL DAMAGES: DISTINCTION BETWEEN GENERAL AND SPECIAL DAMAGES
General damages often consist in all items of loss which a Plaintiff is not required to specify in his pleadings in order to allow him to recover monetary compensation in respect of them at the trial. What constitute general damage in pleading is made clearer when considered in relation to the two other meanings of the term. The fact of this goes to liability and the second goes to proof. If an item of damage is general for the purpose of liability because it represents a normal loss a fortiori it will be general for the proper of pleading in so far as its existence can not take the Defendant by surprise. If an item is general for the purpose of proof because it is inferred or presumed by the court a fortiori it will be general for the purpose of pleading since what the law proposed to infer or presume in Plaintiff s favour the Defendant can not contend would surprise him at the trial. But special damage consists in all items of loss which must be specified or stated by him in his pleadings before they will be allowed to be proved at the trial and recovery of same granted. The basis of whether damage is general or special is whether particularly is necessary and useful to warn the Defendant of the type of claim and evidence of the specific amount of claim which he will be confronted with at the trail. See AKINKUGBE V. EWULUM HOLDINGS NIG. LTD & ANOR (2008) 12 NWLR Pt 1098 375. PER GEORGE OLADEINDE SHOREMI J.C.A.
JURISDICTION: IMPORTANCE OF JURISDICTION IN ADJUDICATION
Jurisdiction is fundamental in adjudication. It is very important and indispensable in the administration of justice. In UTI V. OMOYIWE (1991) I SCNJ 25 at 49 Bello CJN as he then was, viewed’ It is an organic farm thus: “Moreover, jurisdiction is blood that gives life to the survival of an action in a court of law and without jurisdiction the action wilt be like an animal that has been drained of its blood. It wilt cease to have life and any attempt to resuscitate if without infusing blood into it will be an abortive exercise. PER GEORGE OLADEINDE SHOREMI J.C.A.
JUSTICES
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
UNITED PARCEL SERVICE – Appellant(s)
AND
KOSOKO ADEYOSOYE – Respondent(s)
GEORGE OLADEINDE SHOREMI J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court delivered on 23/2/04 wherein the sum of N1,000,000 (On Million Naira) was awarded against the Appellant as general damages and the sum of N12,685 (twelve thousand six hundred and eighty five Naira as special damages in favour of the Respondent.
In the lower court the Respondent as the Plaintiff brought a claim against the Appellant as Defendant alleging that he paid the Appellant a courier company N12,685 for delivery of two parcels abroad. The Respondent further alleged that the Appellant failed to deliver one of the parcels to the recipient abroad and claimed four million Naira as general damages as well as special damage in the sum of N12,685 only. At the hearing of the case only the Respondent as Plaintiff gave evidence and tendered various exhibits.
On 28/7/04 when the matter came up for the defence. The Appellant as Defendant’s counsel said I quote –
“The matter is for us to call our witness. We have decided not to give evidence we apply for a date to address.”
In a considered judgment the trial Judge has this to say and I quote –
“I have above narrated the evidence of the plaintiff and the submissions of both counsels. It is pertinent to note that the Defendant, though he filed a statement of Defence, did not call any witness in support of his pleadings. It therefore goes to no issues.
From the facts of this case which stands unchallenged, the Plaintiff sent the parcels through the Defendant office here in Benin on the 26/7/03, as per Exhibit “A”. The plaintiff paid N12,685 for the two parcels with Nos-M1003366173, M1003366182. It is not also in dispute that the said parcel was sent by the plaintiff to his Daughter Mrs. Nke Osa-Amadasum, who is based in Dublin. It is also not objected that up to the 1/8/03 the said parcels did not reach its destination. As a result the plaintiff wrote the Defendant which was acknowledged by the Defendant on the 4/3/03, Exhibit “B” in which the Defendant gave the intention to commence investigation of his complaint. But up to the 1/9/03 the Plaintiff did not receive any positive reply from the Defendant. The documents sent according to the plaintiff were required for legal proceeding in Belgium in a matter involving the murder of the plaintiff’s daughter. The Plaintiff by Exhibit “D” made some demands on the Defendant and also gave them legal notice of intention to use. But from the evidence before this court, the Defendant did nothing but to deny liability in Exhibit “D”, in which they said that they delivered the package in the normal course of its business, but they did not tender any documentary evidence in support. The court therefore finds that the plaintiff paid in Benin in the office of the Defendant a parcel for delivery to Dublin to Mrs. Amadasun and the Defendant negligently did not do so, as per Exhibit “C”, the full visibility Tracking Package Detail, which showed that the said document was short landed.
The Defendant owed the plaintiff a duty of care to see that he gets value for his money. He has paid for the services of the Defendant and the Defendants are legally bound to see that it was delivered. It is to be noted that the content of the parcel have not been denied by the Defendant as that did not call any witness to that effect. The content therefore are Diskette, photographs of his grand daughter, by name Ashley und other records/documents need to prosecute the case of adoption of the child in Belgium. That the parcel also contains the letters written to the plaintiff by his late daughter Oluwa Toyi Kosoko Adeyosoyo, relating to events reading to the murder of her by her husband in Belgium.
From the evidence before this court, the Plaintiff has established negligence on the side of the Defendant. He is also entitled to damages.
From the evidence before the court, the plaintiff paid the sum of N12,685. He is therefore entitled to claim the said sum as Special Damages. It is no doubt very painful for a father who lost his daughter, through murder and while trying to see that justice is done, for some one to frustrate that effort by negligently handling his documents. I therefore grant as general damages, the sum of N1,000,000 Naira.
Parties on appeal exchanged briefs of argument and when the appeal came up for hearing on 10/2/2010. George Etomi Esq of learned counsel to the Appellant identify ed his brief dated 19/7/06 filed same day but deemed properly filed and served on 27/3/07. He adopted same and relied on it as his argument in favour of the appeal and urged the court to allow the appeal. T.A. Akahomen Esq of learned counsel to the Respondent identified his brief deemed properly filed and served on 12/5/08. He adopted same and relied on it as his argument and urged the court to dismiss the appeal.
The Appellant in his brief of argument distilled two issue for consideration:
(a)Whether the learned trial judge was right when it awarded N1,000,000 as general damages and N12’685 Naira as special damages.
(b)Whether there was admissible evidence in this case to prove that the Appellant failed to deliver the package in question.
In his argument on Issue No.1 the Appellant argued that the Federal High Court has no jurisdiction whatsoever to make an award for damages in negligence as it has no jurisdiction to hear and determine cases on Negligence. The only basis for the jurisdiction in this matter is because it is a case of carriage of goods by Air but for that the Federal High court would not have had jurisdiction to determine this matter. Refers to KLM AIRLINES V. KUMZHI (2004) 8 NWLR (Pt 875 231) and S.251 of the constitution of the Federal Republic of Nigeria. He also argued that being a case of carriage of goods by Air the Provisions of the convention on carriage of goods by air applies to it.
This convention is enacted as a law of the National Assembly and is applicable to Nigeria as Carriage by Air (Colonies protectorates and Territories) order 1953, Vol XI Laws of the Federal Republic of Nigeria. 1958 P 618. Refers also to IBIDAOPO V. LUFTANSA AIRLINES (1997) 4 NWLR (Pt 498) 124. He argued that Article 22 of the convention as enacted in Nigeria limited the liability of a carrier to 250 francs equivalent of $20 per kilogram.
In this case the Respondent failed to prove the kilograms. This being the case the claim for damage ought to have been dismissed. On the issue of special damage he argued that the Respondent in his evidence at p 39 of Records of appeal testified that one of the parcels was delivered but the other one to his daughter in Ireland was not delivered. His claim for the whole sum ought to fail. Refers to TBEANU v OGBEIDE (1994) NWLR Pt. 359 6771. He argued that the award of N12,685 as special damage would amount to giving the Respondent double compensation for the parcel already admitted by the Respondent as having been recovered. This claim ought to fail.
On Issue 2: He referred to a passage in the judgment where the trial Judge said as follows:
“The court therefore finds that the Plaintiff paid in the Benin office of the Defendant a parcel for delivery to Dublin to Mrs. Amadasum and the Defendant negligently did not do so as per Exhibit ‘C’ the full visibility Tracking Package detail which showed that the said document was short landed.”
This document is contained at p.8 of the records. When it was sought to be tendered in evidence objection was taken to it as being documentary hearsay. See pp.26 and 27 of the records. The objection was over ruled.
It is submitted on behalf of the Appellant that the document is of no probative value whatsoever. Section 91 of the Evidence Act makes provisions for the admission of a document in the absence of the maker. Such a document to be admissible, it must be shown that the maker had personal knowledge of document amongst other conditions. None of these conditions was satisfied before this document was admitted in evidence. There is no evidence as to who fed the information into the internet in he first place. It is submitted that if the learned trial Judge had adverted to the provisions of Section 92 of the Evidence Act he would have come to the reasonable conclusion that the document is of no probative value. That being the case the Plaintiff has failed to discharge the burden on it under section 135 of the evidence Act to rebut the presumption in Section 149(c) of the Evidence Act.
The learned counsel is referred to paragraphs 8 and 8(a) of the Statement of Claim at pages 3 and 4 of the records. It is clear there from that what the respondent pleaded in tracking which he the respondent did himself. The law is that parties are bound by their pleadings and evidence led as to facts not pleaded or which is inconsistent with the pleadings goes to no issue. See Ndoma Egba v. Chukwuogor (2004) 8 NWLR Pt.869 P. 832 at 4325-426.
In the respondent’s evidence in chief at page 26 of the records the respondent gave evidence to suggest that it was the Appellant’s Manager that tracked the document and gave the result to him. Clearly that was not what the respondent pleaded. I refer this court to paragraphs 8 and 8(a) of the Statement of Claim.
The evidence there from goes to no issue whatsoever and should be discountenanced. If and when this is done all what is left is the evidence of the respondent that his daughter phoned and said that she did not receive the package. Clearly that is hearsay evidence. See Utteh v. State (1992) NWLR (Pt.223) 257.
He urged the court to allow the appeal and set aside the judgment of the lower court on the ground that:
(1) The Respondent having failed to prove the weight of his package and therefore not entitled to damages
(2) Because the learned trial Judge had no jurisdiction to award general damage in a claim for loss of package subject of a conflict of carriage by air.
(3) Because there is no admissible evidence that the package in question was not delivered to the consignee as contracted.
The Respondent-in his brief also distilled two issue for determination thus:
(1)Whether the learned trial Judge was right when it awarded N1,000,000 as general damage and N12,685 as special damage.
(2) Whether there was admissible evidence in this case to prove that the Appellant failed to deliver the package in question.
On Issue I he submitted that the trial Judge was in order in his award of one million Naira as general damage. He said the object of an award is to give compensation to Respondent for loss or injury which the Plaintiff has suffered. Refers to FAGGE V. TUKUR (2007) 1 NSC Page 185 at
Page 211.
He claimed that the Respondent gave unchallenged and uncontradicted evidence of his irreparable loss and pain suffered as a result of the Appellant failure to delivered the parcel sent through it. He relied on the case of MAINAGGE V. GWAMMA (2004) 12 M.J.SC 34; NEW BREED ORG. LTD. V. ERHONIOSELE (2006) 1 NSC Page I where it was held that:
“Where the only evidence available for the learned trial judge to adjudicate on was that of the Plaintiff/Respondent alone, and the evidence was cogent and credible the learned trial Judge had no option but to rely on it and base his finding thereon”
He admitted that the argument of the Appellant that its activities are governed by the provision of the convention of on carriage of guards by air is without facts to support the assertion refer to section 135(1) of the Evidence Act. He said the Appellant led no evidence as to show that its trade is governed by the said convention.
One the issue of special damage he said the Respondent proved its case by Exhibit “A” the receipt of payment of N12,685, the exhibit was admitted without objection he said Exhibit A is in respect of the parcel that was sent and not delivered.
On Issue 2 He said the argument by the Appellant’s counsel but Exhibit C amount to documentary hearsay is not found on any fact or legal ground. He said the facts of the visibility tracking was pleaded by the Respondent. He argued that the visibility tracking must be read along with other document e.g Exhibit “A”.
He argued that both the oral evidence of the Respondent and the document tendered completely discharged the Respondent of the burden of proof in this case. He concluded that the lower court came to a right decision and the judgment should not be disturbed.
Let me say that from decided authorities there is a distinction between general damages and special damage in the consideration of how a Plaintiff must deal with damage in his statement of claim, it is often necessary to make a basic distinction between general damage and special damage.
General damages often consist in all items of loss which a Plaintiff is not required to specify in his pleadings in order to allow him to recover monetary compensation in respect of them at the trial. What constitute general damage in pleading is made clearer when considered in relation to the two other meanings of the term. The fact of this goes to liability and the second goes to proof.
If an item of damage is general for the purpose of liability because it represents a normal loss a fortiori it will be general for the proper of pleading in so far as its existence can not take the Defendant by surprise.
If an item is general for the purpose of proof because it is inferred or presumed by the court a fortiori it will be general for the purpose of pleading since what the law proposed to infer or presume in Plaintiff s favour the Defendant can not contend would surprise him at the trial.
But special damage consists in all items of loss which must be specified or stated by him in his pleadings before they will be allowed to be proved at the trial and recovery of same granted. The basis of whether damage is general or special is whether particularly is necessary and useful to warn the Defendant of the type of claim and evidence of the specific amount of claim which he will be confronted with at the trail. See AKINKUGBE V. EWULUM HOLDINGS NIG. LTD & ANOR (2008) 12 NWLR Pt 1098 375.
The Appellant in his brief of argument raised the issue of jurisdiction when he submitted as follows: I quote –
“It is humbly submitted on behalf of the Appellant that the Federal High court has no jurisdiction whatsoever to make the amend for damage in negligence as it did. The Federal High court has no jurisdiction to hear and determine case of negligence.”
The Court after reading this submission invited parties to address it on the aspect of jurisdiction of the court. On the 25th day of May 2010 Mr. Etomi for the Appellant in adopting his brief dated 19/7/06 filed on 27/3/07 relied on the said brief and submitted further that the statement of claim in the lower court shows an action on negligence and breach of contract and the judgment was based on that claim and the court based his conclusion on negligence. He submitted that by doing this the court has no jurisdiction.
The Counsel to the Respondent did not appear to address the court on this issue. I will therefore consider the issue of jurisdiction.
Jurisdiction is fundamental in adjudication. It is very important and indispensable in the administration of justice. In UTI V. OMOYIWE (1991) I SCNJ 25 at 49 Bello CJN as he then was, viewed’ It is an organic farm thus:
“Moreover, jurisdiction is blood that gives life to the survival of an action in a court of law and without jurisdiction the action wilt be like an animal that has been drained of its blood. It wilt cease to have life and any attempt to resuscitate if without infusing blood into it will be an abortive exercise.”
One of the ingredient and determinant of jurisdiction is that the subject matter of the case is within the jurisdiction of the court that tried the matter.
The statement of claim is a dependable determinant in determining the jurisdiction of the court. As decided in IKINE V. EDJEROLE (2001) 18 NWLR Pt745, 446 at 499.
The (Plaintiff) Respondent claim as contained in his statement of claim reads thus: I quote –
PARTICULARS O F NEGLIGENCE
A. That when the plaintiff after payment for the services the defendant failed to deliver the parcel to it’s rightful destination.
B. When the defendant could not produce evidence of acknowledgement of the delivery of the parcel/letter in the normal course of courier services.
C. When after over two month the defendant is yet to deliver a parcel/letter send since the 26th of July 2003 to the person addressed to or returned to the Plaintiff.
D. When in the ordinary cause of courier services, delivery of parcel/letter is normally within days and failure by the defendant to deliver the parcel is a breach of it’s duty of care to ensure it’s delivery to the person addressed to or returned to the Plaintiff within few days.
Wherefore the Plaintiff claim against the defendant as follows:
1. The sum of N12,685.00 (Twelve Thousand, six hundred and eight five Naira) as special damages being the cost of the services the Plaintiff paid the defendant for.
2. The sum of N4,000,000.00 (Four million Naira) as general damages for breach of contract
OR
IN THE ALTERNATIVE, the sum of N4,000,000.00 (Four Million Naira) as general damages for the Negligent handling of the parcel and the misplacement of the all valuables in the said parcel by Defendant.
TOTAL CLAIM: N4,012,685.00 (Four Million, Twelve Thousand, Six hundred and eight jive Naira).
I have earlier quoted the judgment of the court but for emphasis let me quote the concluding part of the judgment.
“From the evidence before this court, the plaintiff has established negligence on the side of the Defendant. He is also entitled to damages. From the evidence before the court, the Plaintiff paid the sum of N12,685. He is therefore entitled to claim the said sum as special Damages. It is no doubt very painful for o father who lost his daughter, through murder and while trying to see that justice is done, for some one to frustrate that effort, by negligently handling his documents. I therefore grant as general damages, the sum of N1,000,000 Naira.
It is apparent that the judgment was based on negligence. The Appellant in his argument is blowing hot and cold saying is one breath that the trial court has no jurisdiction in another submitting to jurisdiction.
On the other hand he submitted that the matter is a case of carriage of goods by air therefore the convention of carriage of goods by air applies to it. I disagree with the Appellant on this issue. The claim is simply an issue of contract between the Appellant and Respondent.
It is the obligation of the Respondent to deliver the letter handed over to him at a particular destination. The manner of transportation of the letter is not the business of the Respondent.
The Respondent has no contract with any Air line nor is he privy to the manner of transportation. The subject matter of the claim is a ‘letter’ which can not be classified as baggage or cargo.
The Federal High Court has exclusive jurisdiction in matters listed in section 251(1) of the Constitution of Nigeria 1999. All other items not set out in the section is outside the jurisdiction of the Federal High Court. It will be within the competence of the State High court.
In other words simple contract is not one of the matters placed exclusively within the jurisdiction of the Federal High Court. See MICO OLIVER V. DONGOTE INDUSTRIES LTD. (2010) An FWLR part 506 1858 at 1877 Niki Tobi JSC in OKORO v. EGBUOH (2006) 15 NWLR (Pt 1001) 1 at 23-24 has this to say
“Although jurisdiction is a word of large purport and significance in the judicial process. It is not a subject of speculation or gossip. It is u matter of strict and hard law directed by the constitution and statutes. It is a threshord issue, the brood that gives life to the survival of the action and occupying such an important place in the judicial process.”It has been held in many decided cases that the issue of jurisdiction is basic and fundamental. Jurisdiction is the legal power by which a court can validly enter into jurisdiction in the matter before it where a court lacks jurisdiction to entertain an action, the entire proceedings is a nullity no matter how perfectly conducted or brilliantly written the judgment may be. See O.F. (NIG) LTD V. VEEPEE IND. LTD. (2009) 5 NWLR Pt 1135, 430 at 439 paras F-G. See also NDABA NIG LTD V. UBA PLC (2009) 13 NWLR Pt 1158, 256. The case at hand is quite different from the facts in KLM AIRLINES v. KUMZHT (supra). The facts are not the same as in the case therefore not applicable.
From the above consideration I hold that the trial court in this appeal lacks jurisdiction to adjudicate on the subject matter which is simple contract. The appeal therefore succeeds and the judgment of the lower court decided on 23/2/05 is set aside and the claim is struck out for want of jurisdiction.
I award no cost.
ALI ABUBAKAR BABANIDI GUMEL, JCA: I agree.
CHIOMA EGONDU NWOSU-IHEME (Ph. D) JCA: I read in advance the lead Judgment just delivered by my learned brother GEORGE OLADEINDE SHOREMI JCA. I agree that there is merit in the appeal. The appeal therefore succeeds and the Judgment of the lower court delivered on 23/2/05 is set aside and the claim struck out for want of Jurisdiction. I also make no order as to costs.
Appearances
Pat Etomi Esq
Mrs. Pamella Roland OragbonFor Appellant
AND
T.A. Akahomen Esq
E.A. Agbonjatar EsqFor Respondent
