United Parcel Service V. Kosoko Adeyosoye (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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.