Miss Bunmi Omotoye V. Abc (Transport Co.) Ltd (2009)

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KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

By writ of summons and statement of claim filed on 23/1/01 before the High Court of Rivers State, in the Port Harcourt Judicial Division, the appellant (as plaintiff) sought the following reliefs against the respondent:

a. A declaration that the defendant was negligent in handling the goods belonging to the plaintiff which the defendant was to deliver from Lagos to Port Harcourt to the plaintiff cover (sic) by receipt on 28/7/2000.

b. An order of the court compelling the defendant to way to the plaintiff the following:

1. The sum of N 117, 000.00 (One hundred and seventeen thousand naira) being the value of the goods damaged.

ii. The sum of N4, 700.00 (Four thousand seven hundred naira only) being the cost of transport to and fro Port Harcourt to Lagos.

iii. The sum of N1, 000, 000.00 (One Million Naira Only) being damages for loss of goodwill, loss of turnover on the goods and loss of profit.

The respondent filed a statement of defence in reaction thereto. The matter proceeded to trial. The appellant testified on her own behalf and did not call any other witness. She tendered various exhibits in support of her claims. The respondent called one witness but did not tender any exhibit. At the conclusion of the trial, learned counsel submitted written addresses. In a considered judgment delivered on 10th June 2004, the learned trial Judge dismissed the appellant’s case in its entirely with costs awarded against her. The appellant was dissatisfied with the decision and filed a notice of appeal containing five grounds of appeal on 20/10/04.

In compliance with the rules of this Court, the parties duly filed and exchanged their respective briefs of argument. In her brief of, argument dated 5/10/06 and filed on 6/10/06 the appellant formulated five issues for determination as follows:

1. Whether facts admitted by the Respondent need further proof from the appellant. (Ground 1)
2. Whether an unchallenged and uncontradicted direct oral evidence (sic) of the appellant needs further corroboration before the court can accept and act on it. (Ground 2)
3. Did the appellant not discharge the burden expected of her on the issue of delivery of the goods to the Respondent who still has custody of the goods. (Ground 3)
4. Whether the issue of exemption clause raised by the court suo motu and relying on same without allowing the parties address on it does not infringe on the right of the appellant’s fair hearing (sic) (Ground 4)
5. Whether the reliance the trial court placed on Exhibit A which is the ticket showing the transportation cost or contract to carry the appellant to her destination instead of Exhibit C which is the receipt evidencing the contract to carry the goods from Lagos to Port Harcourt and without considering the issue of negligence that causes damages to the goods which the respondent admitted has not occasioned miscarriage of justice to the appellant. (Ground 5)

The respondent, in its brief dated 19/3/07 but deemed filed on 3/5/07, distilled three issues for determination thus:

1. Whether the learned trial Judge was right in holding that the Plaintiff/applicant did not prove that the goods in question, the subject matter of the suit in the court below were damaged and by the defendant/respondent. (Grounds 1, 2 and 3)
2. Whether the learned trial Judge actually raised the issue of exemption clause as contained in the contract between the Plaintiff/appellant and defendant/respondent suo motu and decided on same without hearing from the parties. (Ground 4)
3. Whether the learned trial Judge was wrong in the appraisal of the evidence before the lower court.

At the hearing of the appeal on 4/5/09, Benjamin Obiora, Esq., of counsel, adopted the appellant’s brief and urged us to allow the appeal.

A.1.Nwachukwu Esq., of counsel, holding the brief of Emeka O. Nwagwu Esq., adopted the respondent’s brief and urged us to dismiss the appeal.

Having carefully considered the issues formulated by both parties, I am of the view that the issues formulated by the appellant are rather prolix, while the issues formulated by the respondent are not succinct enough. In my humble view the two issues that arise for determination in this appeal are:

1. Whether the appellant proved her claim upon a preponderance of evidence or on a balance of probabilities; (Grounds 1, 2, 3 and 5) and
2. Whether the learned trial Judge raised the issues of exemption clause suo motu without affording the parties an opportunity to address him on it and thereby occasioned a miscarriage of justice. (Ground 4)

The appeal shall be determined on the above issues. The submissions of the parties in their respective briefs can conveniently be considered under these two issues.

The facts that gave rise to this appeal are as follows: The appellant, a businesswoman, had a requisition from a, client in Port Harcourt for some specific items, which she had to source from Lagos. She travelled to Lagos on 25/7/2000 by the respondent’s night bus, purchased the items and returned to Port Harcourt also by the respondent’s night bus on 28/7/2000. It is the appellant’s case that the purchased goods were placed in one of the luggage compartments of the bus and were in good condition up to Owerri where some passengers disembarked. She contends that her items were removed from the luggage compartment at Owerri to enable the luggage of passengers disembarking to be removed. She also alleged that at Owerri one of the disembarking passengers complained that her goods got burnt in one of the luggage compartments. She stated that before the bus continued on its journey to Port Harcourt, her goods were returned to the luggage compartment and the bus attendant assured her that they were safe. Upon arrival at Port Harcourt, one of the luggage compartments, which incidentally contained her goods, could not open. When it was eventually forced open, it was filled with smoke and the appellant’s goods were damaged. It is the appellant’s contention that her goods were not kept in the faulty compartment from Lagos but transferred there after passengers disembarked at Owerri. In order to satisfy her customer that