Ignatius Odinaka & Anor. V. Felix Nkanyichukwu Moghalu (1992)

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OLATAWURA, J.S.C 

When this appeal came up for hearing on 10th February 1992. the Appellants were neither in court nor represented, but since an Appellants’ brief of argument has been filed, we exercised the powers conferred on the court under Order 6 rule 8 (6) of the Supreme Court Rules 1985 and heard the appeal. Mr Erondu who appeared for the respondent adopted his brief and offered no oral submissions in support.

The facts of this case as shown from the pleadings and the evidence led are straight forward. The Plaintiff is a businessman trading in motor cycle spare parts under the trade-name of FEN-KA-CHUMO Trading Company. The 1st defendant at the material time to this case was the owner of a Mercedes Benz Lorry registered as No. MA.5266. The 2nd defendant was at that material period the driver of the said vehicle and an employee of the 1st defendant.

On 30th April 1980, the plaintiff instructed is agents (P.W.1 and P.W.2) to clear his goods from the warehouse in Port Harcourt and to load the goods in a vehicle and convey them to 16 Iweka Road. Onitsha. These goods were in 29 cases or crates. They consisted of motor cycle spare parts of various descriptions. They were conveyed in the 1st defendant’s vehicle No.MA. 5266. The vehicle left Port Harcourt with the goods, but the goods never reached the agreed destination at Onitsha. The defendants did not deny carrying the goods from Port Harcourt. Their own version of the ill fated journey was that on the way after leaving Port Harcourt and because it was too late to travel to Onitsha the vehicle parked on the road at Ihiala. In the night they were attacked by armed bandits who drove the vehicle together with the goods to an unknown destination. A report was immediately lodged with the police; a search was made and the lorry without the plaintiffs 29 wooden cases of assorted spare parts was found at Adazi-Nnuku.

The plaintiff gave evidence and called two witnesses – P.W.1 one Alex Nwokedi a clearing agent who processed the customs documents in respect of the 29 cases or crates.

After the usual and necessary examination of the goods by the Customs Officials, the goods were loaded into the lorry driven by the 2nd defendant. Augustine Nwokedi (2 P.W.) travelled in the same vehicle. Where they parked at Ihiala and while the 2 .P.W. was sleeping inside the vehicle he heard gunshots, he i.e. 2 P.W. jumped out and the vehicle was driven away by the bandits. After a review of the evidence and consideration of the submissions made by the learned counsel, the learned trial Judge Awogu J (as he then was) dismissed the claim on the ground that the loss of the goods did not occur as a result of the negligence of the defendants. The plaintiff appealed to the Court of Appeal, Enugu Division. On 9th December 1987, the Court of Appeal allowed the appeal ; set aside the judgment of the lower court and in its place awarded the sum of N16,000.00 for loss of profit on the 29 cases and N16,246.07 being the total cost of the goods. It is against that decision that the appellants appealed to this Court.

The grounds of appeal without the particulars are as follows:-

“(1) ERROR IN LAW:- The Justices of the Court of Appeal erred in law when they overlooked the major issue of the appeal before them, namely, whether or not the loss of the 29 cases of the motorcycle spare parts was occasioned as a result of the negligence of the defendants/Appellants before finding them liable.

(2) The learned Justices of the Court of Appeal erred in law when they awarded judgment in favour of the Plaintiff/Respondent as Bailor of the 29 missing cases of motorcyc!e spare parts against the defendants/ Appellants as Bailee/Common carriers, in the sum of N32.246.07 made up as follows:-

(a) N16.247.07 being the total cost of the 29 cases of motorcycle spare parts.

(b) N16,000.00 being 100% PROFITS (Italics supplied) on the 29 cases of Motorcycle spare part, when in law they ought not to award N16.000.00 or any surn at all as loss of profits.

(3) The learned Justices of the Court of Appeal erred in law when they awarded judgment to the Plaintiff/Respondent in excess of the loss which was proved by him.

(4) The learned Justices of the Court of Appeal erred in law when they held that the Defendants/Appellants were liable to the Plaintiff as Bailes/Common Carriers or Custodians of the goods when there was no finding of fact made by the Court of first instance. Awogu J., as he then was. or by the Court of Appeal itself. Indeed the evidence was to the contrary.

(5) ERROR IN LAW:- The learned Justices of the Court of Appeal erred in law in awarding judgment to the Plaintiff when it was commonly accepted by the parties that the loss was occasioned by unknown armed robbers with violence.