Chief D. O. Ogugua Vs Armels Transport Ltd (1974)
LawGlobal-Hub Lead Judgment Report
O. IBEKWE, J.S.C.
This appeal raises vital questions as to the liability of a bailee under the law. The main facts are not in dispute. The defendant is a limited liability company and carries on the business of common carriers and motor repair workshop and motor garages throughout the Federation of Nigeria. Sometime in October 1966, the plaintiff, a businessman, delivered his Mercedes-Benz Saloon Car Model 222S Registration No. ED 1965 to the defendants’ workshop at Aba for repairs and subsequent delivery to him at Dmuahia. The defendants accepted the vehicle. Accordingly, Job Cards Nos. G. 829 and 873 were issued for it.
But for reasons which would appear to be beyond the control of the defendants, the repairs were so prolonged that the plaintiff’s patience ran out, and he made repeated demands upon the defendants for the return of his car. Nevertheless, the defendants failed to repair and return the car to the plaintiff. In the end, the car remained in the Defendants’ workshop from October, 1966 to September, 1968 when Aba was over-run by Federal troops and the said car was abandoned by the defendants.
The plaintiff, therefore, instituted this action in the Aba High Court, claiming from the defendants as follows:
“‘4,821pounds:;8:8d. being general and special damages for loss of plaintiff’s car No. ED 1965 Mercedes Benz Model 222S entrusted to the defendant for repairs at Aba on or about 25th October, 1966”
“Or in the alternative damages for breach of contract to repair and deliver the said car to the plaintiff which the defendant has failed so to do.”
At the trial, the issues, by consent of counsel on both sides, were narrowed down. Dealing with this aspect of the case in his judgment, the learned trial judge said, inter alia, as follows:
“Following the trend of the pleadings generally, and in particular, the issue of fact raised by the defence in paragraph 10. It seemed to me,having regard to the admissions made by the defendants, that the main issue to be tried was that raised in paragraph 10 of the defence. Both counsel agreed with me. They further agreed that as defence asserted the positive in this paragraph the defence had to begin.”
Paragraph 10 of the Statement of Defence referred to above reads thus:
“10 The defendant further states that it was the responsibility of plaintiff to evacuate his car from the defendant’s garage in Aba as agreed between the parties and as confirmed by letter No. ATELO/AMO/MISC/6 dated 4th September, and plaintiff’s letter dated 12th September, 1968 both of which will be founded upon at the trial.”
It is, therefore clear that the narrow issue which the Court was called upon to determine is as to whether the plaintiff at any time agreed to evacuate his car from the defendants’ workshop.
At the trial, the defendants tried without success, to establish this point. Kieran Onyekwere, D.W.1, the only defence witness who gave evidence to this effect, produced and tendered what purponed to be photo-copy of the letter of 4th September pleaded under paragraph 10 of the Statement of Defence. It is relevant to observe that the plaintiff’s counsel objected to the admission of the document on the ground that it was a photostat copy and that the original should be produced. The learned trial judge over-ruled him, but reserved for consideration in his judgment the weight to be attached to the document. The letter was accordingly received in evidence and marked Ex. “A”.
At the end of the day, the learned trial judge after carefully weighting the evidence before him, decided not to attach any weight to Ex. “A”, in the light of the following remarks recorded by him:
“Ex. “A” makes reference to a letter of the plaintiff allegedly written on 29th August, 1968 and states that an agreement was reached between the parties in the presence and hearing of the 1st defence witness and a Mr. Han and a Mr. Offiah. Neither Mr. Han nor Mr. Offiah was called. The letter of 29th August was not put in either by the defendants or the plaintiff I think, Ex. “A” was made in anticipation of this suit.”
It is enough to observe here that we are in complete agreement with the stand taken by the learned trial judge on this particular issue, more especially, as it is on record that, Kieran Onyekwere, D.W.1, the only witness who testified for the defendants on this issue, had himself admitted under cross-examination that Ex. “A” was made after the war, and that the original was, at the time he gave his evidence, in a file which was in their Head Office at Apapa and was probably no longer available.
Later on in his judgment, the learned trial judge also made the following finding in favour of the plaintiff’s case:
“The plaintiff has impressed me as very truthful and I accept his evidence. I believe that he did not at any time accept the responsibility to evacuate his car from the defendant’s garage at Aba.”
After stating that he was satisfied that the defendants were bailees for reward and that they had failed to exercise the high degree of care placed upon their shoulders by the law, the learned trial judge entered judgment against the defendants for the sum of 3,108pounds:8s:8d. and 500pounds general damages.
From this decision of Anyah J., the defendants have now appealed to this Court. The only two grounds which were argued before us are as follows:
(1) “That the Learned Trial Judge erred in Law in holding that the Defendant was negligent when the issue of Negligence in a “Bailee” was neither pleaded nor sued upon by the Plaintiff.
Errors in Law.
“In Law I am satisfied that the defendants were bailee of the Plaintiff’s car for reward.”
“As Bailees for valuable consideration the defendant must exercise a higher degree of care than in cases of gratuitors depository danger.”
“In these circumstances, I fail to see that the defendants exercised that High degree of care which the Law imposes upon them to see to it that the Plaintiff’s vehicle was removed to safety.”
(2) “That the Learned Trial Judge erred in Law in Awarding 3,108pounds:8:8d, as special damages when the items of special Damages have not been proved.”
Arguing ground 1 before us, Mr. K.S. Okeaya-Inneh, learned counsel for the appellants, made two points which are worthy of some consideration, namely:
(1) “That as the issue of negligence in a “bailee” was neither pleaded nor sued upon by the plaintiff, the learned trial judge. was wrong in awarding judgment against the defendants.
(2) That as from the moment when the plaintiff agreed to evacuate his vehicle the defendants had ceased to be bailee for reward, in that the contract to repair had come to an end. That at the very worst, the defendants’ position in law would be that of a gratuitous bailee. It was the contention of learned counsel that, in order to hold the defendants liable, it must be shown that they were guilty of gross negligence.”
Dealing with the first point first, we think that there was no need on the part of the plaintiff in this case to plead negligence specifically. Once it is admitted by the parties (as was the case here) that the car was delivered to the defendants and that they had failed to return it to the owner, we think that the onus was on them to deliver the car to the plaintiff or satisfy the Court that its loss was not due to their carelessness.
It is settled law that, in bailment, the onus of proving that there is no negligence is on the bailee. (See Phipson on Evidence (eleventh edition) p. 93 para. 94). In other words, provided that the claim is properly worded, the onus of proof is always on the bailee to show that the loss of, or damage to, the goods entrusted to him occurred without negligence or default on his part.
Furthermore, we fail to see that it is open to the appellants counsel to complain about the onus of proof, when in fact the only issue tried was that contained in paragraph 10 of the Statement of Defence, and it had been agreed between the parties that the defendants (now appellants) should begin and prove the positive assertion pleaded by them.
In the circumstances, it is patent that the onus upon the appellants arises not only by the operation of the law, but also from the agreement reached between the parties at the trial, which had the effect of casting the onus of proof upon the defendants.
In our view, therefore, it follows that this aspect of the ground of appeal is, to say the least, misconceived. Consequently, the contention of learned counsel for the appellants based upon it is devoid of any substance. As a matter of fact, the burden of proof in bailment was considered in the well known case of Joseph Travers and Sons Ltd. v. Cooper (1915 1 K.B. 73 at 90), where in his judgment Kennedy L.J., quoted with approval, the opinion expressed in the House of Lords by Lord Halsbury in the unreported case of Morrison, Pollexfen and Blair v. Walton, delivered 10th May, 1909 as follows:
“It appears to me that here there was bailment made to a particular person, a bailment for hire and reward, and the bailee was bound to show that he took reasonable and proper care for the due security and proper delivery of that bailment; the proof of that rested upon him.”
In the case before us, it is our considered judgment that, both in law, and on the facts, the onus was on the appellants to satisfy the Court by showing that, although they could not put their finger on what actually did happen to the Plaintiff’s car after they had abandoned their workshop at Aba in 1968, nevertheless, whatever did take place occurred notwithstanding all reasonable care having been exercised by them to ensure the security of the car. Indeed, the defendants throughout the trial, made no attempt to establish the step, if any, which they had taken to guarantee the safety of the car bailed to them. The learned trial judge found as a fact that the defendants had not acted “diligently and with due care,” in dealing with the vehicle which was entrusted to them for repairs. We think that, on the evidence, it was open to him to come to that conclusion.
We now come to deal with the second point, namely that as from the moment the plaintiff accepted to be responsible for the evacuation of his car, the contract for repair had ceased to exist, that the defendants had assumed the role of a gratuitous bailee, and that, in that case, the learned trial judge could only find against the defendants if it was shown that they had been guilty of gross negligence.
We do not share the view that, in approaching the issue as to whether the defendants in this case failed to exercise the measure of care which in all the circumstances was demanded of them, regard should be had as to whether their conduct amounted to what is generally referred to as “gross negligence.”
Learned Counsel for the appellants was probably led into making this erroneous submission by the fact that in English law there are some old authorities in support of the theory that a gratuitous bailee is liable only for gross negligence. We wish however, to draw attention to the fact that, it is no longer good law to import the so-called distinction between negligence and gross negligence into a case of bailment. Viewed in the sense of a breach of the duty to take care, which is really what concerns us in this case, it seems to us that there are no degrees of negligence. Any breach of duty of care, whether grave or venial which caused a loss constitutes, in our view, negligence. Indeed, the trend in English law today clearly supports the stand which we have taken on this matter.
To clarify this point further, we think it is desirable to refer to the illuminating judgment of the Court of Appeal in the case of Houghland v. R.R. Low (Luxury Coaches) Ltd. (1962), 1 Q.B.D. 694 at 697, in which Ormerod L.J., traced with clarity the origin and eventual rejection of the theory of gross negligence in cases of this nature, as follows:-
“I am bound to say that I am not sure what is meant by the term “gross negligence” which has been in use for a long time in cases of this kind. There is no doubt, of course, that it is a phrase which has been commonly used in cases of this sort since the time of Coggs v. Bernard, when the distinction was made in a judgment of Lord Holt C.J. which has been frequently referred to and cited; but as we know from the judgment of Lord Chelmsford in Giblin v. McMullen, that it was said, after referring to the use of the term “gross negligence” over a long period: “At last, Lord Cranworth (then Baron Rolfe) in the case of Wilson v. Brett, objected to it, saying that he could see no difference between negligence and gross negligence; that it is the same thing with the addition of a vituperative epithet. And this critical observation has been since approved of by other eminent judges.”
Continuing his judgment at p. 698, Ormerod L.J. finally discredited this theory of “gross negligence” in cases of this kind, in the following words:
“For my part, I have always found some difficulty in understanding just what was “gross negligence,” because it appears to me that the standard of care required in a case of bailment, or any other type of case, is the standard demanded by the circumstances of that particular case. It seems to me that to try and put a bailment,for instance, into a watertight compartment such as gratuitous bailment on the one hand, and bailment for reward on the other is to overlook the fact that there might well be an infinite variety of cases, which might come into one or the other category. ”
We are satisfied that, in the present case, the defendants, regardless as to whether they are bailees for reward or are deemed to be gratuitous bailees, have in either case failed to exercise the due care cast upon them in respect of the plaintiff’s vehicle which was throughout in their possession.
As a matter of fact, the learned trial judge made a clear finding that the defendants were bailees for reward, and we see no reason to disagree with his finding, in view of the fact that the main issue which emerged from the pleadings was the sole question as to whether the plaintiff at anytime did assume responsibility for the evacuation of his car from the defendants’ workshop and on that issue, the learned trial judge found in favour of the plaintiff.
In a strict sense, our decision in this case relates only to bailment. But in view of its importance in practice generally, we think we should draw attention to the fact that, even in a much wider sense, there are no degrees of negligence so far as the common law is concerned. More often than not, negligence in civil matters occur in the form of a breach of duty to take care and in that sense, negligence is negligence and therefore, does not require any epithet like “gross”, or such like expression, to qualify it.
Under ground 2, learned counsel for the appellants criticised certain items of expenditure in respect of which the learned trial judge entered judgment for the plaintiff. To avoid confusion, we prefer to set out in detail the relevant portion of the judgment as follows:
“There will, therefore, be judgment against the Defendants for 3,108:8:8d special and 500 general damages. Items of special damaged proved are:
- One Mercedes Benz Saloon No. EU 1965
- Car Radio 2,400
- Tape Recorder 260 —
- Licence fee 100–
- Insurance premium 25 —
- Cost of hire of Low-Loader 112 – –
- Deposit paid to Defendants 40–
171 8 8
TOTAL 3,108:8:8d
Plus 500 3,608:8:8dMr. Okeaya-Inneh, learned counsel for the appellants, challenged items 2, 3, 4 and 5, as itemised above.
Before dealing with the items complained of, we wish to observe that there was ample evidence in support of every item of claim made by the plaintiff, and that the aspect of the plaintiff’s evidence remained uncontradicted. We take the view that the learned trial judge was right in awarding items 2 and 3 i.e. the Car Radio and Tape Recorder, respectively.
We are however not satisfied that the plaintiff is entitled to recover item 4 and 5; namely the Licence fee and Insurance premiums respectively.
In law, the measure of damages in cases of this nature would be the prevailing market value of the car at the material time, which is 2nd April, 1971. We take judicial notice of the fact that motor licence and insurance are renewable annually. According to the Statement of Claim the car was delivered to the defendants in October 1966 and remained in their possession till September 1968 when it was abandoned at Aba. That being the case, the licence and the insurance must have expired sometime in 1967. Even if the defendants had been able to repair and return to the plaintiff the vehicle with promptitude, the duty to licence and insure the car would still have lain upon the plaintiff. At any rate, in 1971 when this action was filed, the licence fee together with the insurance premiums could not reasonably be said to be part of the price of the vehicle in question, especially as there was no evidence that the licence and the insurance were ever renewed at any time when the vehicle was in the defendants’ workshop. We will therefore, disallow the claims founded on items 4 and 5 i.e. licence fee and insurance premiums. In effect, we allow the plaintiff the total sum of 3,471:8:8d made up as follows:
- One Mercedes Benz Saloon No. ED 1965 2,400
- Car Radio 260-
- Tape Recorder 100 –
- Cost of hire of Low-Loader 40-
- Deposit paid to Defendants 171 8 8
TOTAL 2,971 :8:8d
Plus 500 3,471:8:8d
Learned Counsel for the appellants also urged that the general damages awarded were excessive. As has been frequently pointed out in these cases, the Court of Appeal will only interfere with the assessment of damages if the trial Judge acted on some wrong principle of law or made an entirely erroneous estimate, and this he clearly did not do. For the reasons given this appeal must be dismissed with costs assessed at N81 in this Court.
Other Citation: (1974) LCN/1802(SC)
