A.B.C (Transport Company) Limited V. Miss Bunmi Omotoye (2019)

LAWGLOBAL HUB Lead Judgment Report

UWANI MUSA ABBA AJI, J.S.C.

This appeal is against the judgment of the Court of Appeal, Port Harcourt Division, delivered on 18/6/2009, which set aside the judgment of the High Court of Rivers State, Port Harcourt that dismissed the claims of the Respondent contained in the amended statement of claim dated 17/6/2003 at page 21 of the record as follows:

(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 covered by receipt on 27/7/2000, which caused damages to the goods,

(b) An order of the Court compelling the defendant to pay to the plaintiff the following:

(i) The sum of N 117,000.00 (One Hundred and Seventeen Thousand Naira) being the value of the goods damaged

(ii) The sum of 4,700.00 (Four Thousand Seven Hundred Naira) being the cost of transport to and from Port Harcourt to Lagos.

(iii) The sum of N 1,000,000.00 (One Million Naira only) being damages for loss of goodwill, loss of turnover on the goods and loss of profit.

TOTAL N1,121,700.00

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It is the fact that the Respondent on 28/7/2000 travelled in one of the Appellant’s buses from Lagos to Port Harcourt with some goods she was to deliver to a customer but that the goods got damaged because of the negligence of the Appellant, who placed them in a place where heat from the engine of the bus damaged them. After the close of the trial, the trial Court dismissed the Respondent’s suit in its judgment contained at pages 62-69 of the record. Dissatisfied, she appealed to the lower Court, which allowed her appeal and granted her reliefs save relief (b) of Sub-paragraph (iii) of the amended statement of claim. Dissatisfied, the Appellant appealed to this Court.

By a Notice of Appeal, the Appellant formulated 4 Grounds of appeal with their particulars for the determination of this appeal. In arguing the appeal, the Appellant filed on 19/8/2011, an Appellant’s Brief wherein he formulated 2 issues for the determination of the appeal thus:

1. Whether the Court of Appeal was justified in holding that the Respondent proved her case against the Appellant. (Grounds 1, 2 & 4).
2. Whether the Court of Appeal was justified in holding that the High

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Court denied the Respondent of a fair hearing in its findings on the exemption clause contained in Exhibits A and B respectively. (Ground 3).

On the other hand, the Respondent filed a Brief of Argument deemed filed on 3/7/2013 wherein he also formulated 2 issues for the determination of the appeal as follows:

1. Whether the Court of Appeal was right in allowing the appeal of the Respondent when they held that the Respondent proved her case based on the preponderance of unchallenged evidence and admission of facts in pleading and evidence of the Appellant before the trial Court.
2. Whether the Court below held that the trial Court denied the Respondent of a fair hearing in its findings on the exemption clause contained in Exhibits A and B respectively.

The Appellant’s learned Counsel consequently prepared a Reply Brief filed on 1/8/2013. The parties adopted their respective Briefs and asked this Honourable Court for judgment in their favour.

Having gone through the records and the evidence therein, this appeal shall be considered on the 2 issues formulated by the learned Counsel to the Appellant.

Let me quickly consider the Reply

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Brief filed by the Appellant’s learned Counsel before delving into the issues for determination. The 5-page Reply Brief of the Appellant filed on 1/8/2013 does not seem to raise up or address any fresh issue or point of law to the Respondent’s Brief and therefore does not qualify as a Reply brief. It is the general practice since the introduction of brief writing that there may be need for an Appellant to file a Reply Brief when an issue of law or argument is raised in the Respondent’s Brief, not necessarily being a mere repetition of what the Appellant’s Brief contained. In other words, where a Respondent’s brief raises issues on points of law not covered in the Appellant’s Brief, an Appellant should file a reply to deal with such new points/matters. Filing of a Reply Brief even by the Appellant, where desirable should not be used to either extend the scope of the arguments in the Appellant’s Brief or to raise issues that did not arise as new issues or matters in the Respondent’s Brief. See Per MUHAMMAD, J.S.S in SPDC & ORS V. AGBARA & ORS (2015) LPELR-25987(SC). Thus, the Reply Brief of the Appellant shall not be considered by me since it amounts to a

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superfluous repetition.

ISSUE ONE:

Whether the Court of Appeal was justified in holding that the Respondent proved her case against the Appellant.

The submission of the learned Counsel to the Appellant is that there was no justification to hold that the Respondent proved her case against the Appellant. That the parties having joined issue on negligence, the burden is on the Respondent to prove the alleged damage as decided in IROAGBARA V. UFOMADU (2009) ALL FWLR (PT.481) AT 352. That since the evidence of the Respondent on the alleged cause of damage was at variance, it should not be relied on. Furthermore, that the Respondent did not prove delivery of the damaged goods to the Appellant in the manner laid down in NLEWEDIM V. UDUMA (1995) 6 NWLR (PT.402) AT 394. He stated also that the lower Court was in error to hold that the non-production of the damaged goods was not fatal to the Respondent’s claim. That the lower Court was wrong to rely on Exhibit G which was not signed since an unsigned document is worthless as decided in AG, ABIA STATE V. AGHARANYA (1999) 6 NWLR (PT.607) AT 371. Again, that negligence is a question of fact provable

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by pleaded particulars and evidence. He quoted in support KALLA V. JARMAKANI TRANSPORT LTD (1999) 13 NWLR (PT.636) 626. He urged for the resolution of this issue in his favour.

The learned Counsel to the Respondent in his turn has submitted that where the trial Court has failed in the evaluation of evidence, the appellate Court can do that especially where documentary evidence is involved. He relied on DUMEZ NIG. LTD V. NWAKHOBA (2009) ALL FWLR (PT.461) AT 857-358. He submitted that by the pleading, the Appellant admitted the fact of damage but denied responsibility for the damage. Thus, when the trial Court is in error of appraisal of evidence, the appellate Court can correct it as decided in 0BINECHE W. AKUSOBI (2010) ALL FWLR (PT. 533) AT 1855-1866. He therefore urged that this issue be resolved in his favour.

The Appellant’s learned Counsel’s argument is that the Respondent being the Plaintiff at the trial Court must necessarily prove the negligence of the Appellant to entitle her to judgment. Indeed, lack of proof of negligence in a matter as the instant appeal can be fatal to the case of the Respondent. It is trite that the burden of proof of

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negligence falls on the plaintiff who alleges negligence. This is because negligence is a question of fact, and it is the duty of he who asserts to prove it. Failure to prove particulars of negligence pleaded will be fatal to the case of the plaintiff. Per TOBI, J.S.C in ABUBAKAR & ANOR V. JOSEPH & ANOR (2008) LPELR-48(SC). In the pleadings of the Respondent vide her amended statement of claim contained at pages 18-21 of the record, she averred particularly at paragraph 10 in page 19 as follows:

10. The plaintiff avers that the defendant was negligent because:

(a) Its staff knew the system of the vehicle where it generates heat most.

(b) The heat from the engine compartment impacted on some goods discharged at Owerri, which suggests need for duty of care.

(c) The defendant’s staff in loading back the plaintiff’s luggage at Owerri, with the knowledge of what had happened to the other luggage from that particular area of the luggage cabin did not observe duty of care to avoid a second effect.

(d) The defendant’s staff assured the plaintiff that her goods were safe when she inquired how the goods were placed.

(e) The damages

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on the goods were caused by the direct impact of the heat generated by the vehicle.

The Appellant denied these in its statement of defence at page 14 of the record in paragraphs 7 and 8 thus:

7. (a) The Defendant denies that it is guilty of the alleged or any negligence or breach of duty of care as contained in the Plaintiff’s statement of claim.

(b) The Defendant denies any injury, loss or damages which the Plaintiff sustained as alleged.

(c) The Defendant asserts that the alleged loss and or damage was caused without any negligence or default on the part of the Defendant.

(d) The Bus with which the Defendant (sic) made the journey from Lagos to Port Harcourt did not have any exhaust pipe problems or leakage.

(e) The Buses used by the Defendant for its business do not generate heat at the boot compartments.

In the evidence given by the Respondent from pages 25-32, she chronicled how she embarked on her journey and the ugly experience she had. She complained of how her goods were damaged because it was wrongly placed in a heat and faulty chamber of the bus and so on. She in fact complained initially to the

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bus conductor, an agent of the Appellant, to be careful with her goods but he shouted at her. She at page 26 lines 16-19 emphatically stated that “when they opened the compartment, smoke came out. They allowed for some minutes and they now tried to recover the goods. The goods were burnt. The manager now called me into his office, apologized and asked me to write a letter of claim…” She revealed how she lodged her complaint to the Manager who organized for a meeting with her and how her letter of complaint Written to the MD was unattended to, hence the suit.

She listed the goods damaged to be 1 land slide @ N35,000.00, 1 stage 3 car seat @ N45,000.00, 1 foreign pool ball @ N7,000.00 and 2 Educational tucks @ N30,000. She also testified to loss of goodwill, turnover and profit because of the damage to the above stated goods. In evidence by DWI, the witness to the Appellant, he admitted damage to some goods of the Appellant when he stated at page 40 lines 10-13 that “I recall the only contact I had with the plaintiff was when she drew my attention that her goods were damaged.. The damaged luggage looked like a baby seat…As I didn’t

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touch the damaged luggage, I don’t know the exact damage.”

It is the law therefore that in an action for negligence, the plaintiff must prove the following essential elements: (a) The existence of a duty of care owed to the plaintiff by the defendant. (b) Breach of that duty of care by the defendant. (c) Damages suffered by the plaintiff as a result of the breach by the defendant of that duty of care. SeeEDOK ETER MANDILAS LTD. V. ALE (1985) 3 NWLR (PT. 11) 43, OKEOWO V. CHIEF SANYAOLU (1986) 2 NWLR (PT. 23) 471, AGBONMAGBE BANK V. GENERAL MANAGER G.B. OLLIVANT LTD. (1951) 1 ALL NLR 116, MERCANTILE BANK OF NIGERIA LTD. V. ABUSOMWAN (1986) 12 NWLR (PT. 22) 270. In order to establish negligence, one pertinent question arises for consideration and it is whether as between the alleged wrong doer and the person who has suffered damage, there is a sufficient relationship of proximity or neighborhood such that in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter. By the summations above, it cannot be argued that the Respondent has proved against the Appellant the existence of a duty of care owed to

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her, breach of that duty of care by the Appellant and damages suffered by the Respondent as a result of the breach by the Appellant of that duty of care.

Besides, it is contended by the Appellant’s learned Counsel that they Appellant put up a defence to the allegation of damage made by the Respondent. The mere fact that a defence or statement of defence is filed or denial is made does not amount to a real defence in law since cases are won based on preponderance of facts and evidence. Similarly, a defence that does not answer the points of substance is as good as no defence. A Defendant usually sets out in his defence to answer the points of substance, to contradict and thus demolish the live issues on which the case will stand. If his defence fails to achieve that result, it will be as good as no defence. See Per OPUTA, J.S.C in NWADIKE & ORS V. IBEKWE & ORS (1987) LPELR-2087(SC).

The non-production of the damaged goods cannot be fatal or even affect the case of the Respondent. The lower Court was right in its finding on this issue. Moreover, civil cases are to be proved on balance of probality or preponderance of evidence by admissible

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evidence. The damaged goods were proved abundantly by the admission of DW1 of the damage and by Exhibits Dl and D3 being the photographs of the damaged goods attached to Exhibit D.

The Court below carried out a painstaking and sagely evaluation of both the documentary and oral evidence before it in reaching its decision especially its sound and erudite appreciation of the facts and evidence from pages 132-138 of the record. I am in agreement that the lower Court is justified to hold that she preponderantly proved her case against the Appellant. This issue is therefore resolved against the Appellant.

ISSUE TWO:

Whether the Court of Appeal was justified in holding that the High Court denied the Respondent of a fair hearing in its findings on the exemption clause contained in Exhibits A and B respectively.

It is submitted that the lower Court was not justified in holding that the trial Court denied the Respondent fair hearing in its findings on the exemption clause contained in Exhibits A and B respectively, the tickets for the Respondent’s journey to and fro respectively. That by the exemption clause that “Luggage are carried without

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inspection and at owner’s risk”, the trial Court rightly interpreted the documents tendered, which is the duty of the Court to do. He cited in support INYANG V. REG. TRUSTEES OF THE FIRST CENTURY GOSPEL CHURCH (2006) ALL FWLR (PT.314) AT 295. He concluded that it is not the business of the appellate Court to substitute its view for that of the trial Court as held in ONYEJEKWE V. ONYEJEKWE (1999) 3 NWLR (PT.596) AT 500-501. He prayed this issue to be resolved in its favour and that the appeal be allowed.

The Respondent’s learned Counsel submitted hereunder that issue 2 formulated by the Appellant did not arise from any decision of the Court below and it is trite that this Court only reviews a decision taken by the Court below in its judgment as decided in XTOUDOS SERVICES NIG, LTD V. TAISEI (WA) LTD (2006) ALL FWLR (PT. 333) AT 1650. On the exemption clause in Exhibits A and B respectively, it is argued that they do not relate to carriage of the goods, which is the subject of the suit. That the carriage of the goods damaged, being the subject of this suit is covered by a separate contract evidenced by Exhibit C. He prayed for the resolution of this issue

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in her favour and to dismiss the appeal.

The exemption clause referred to provides that “Luggage are carried without inspection and at owner’s risk”. This clause is inscribed on the ticket of the Appellant for all its passengers. In the instant case, the ticket in which this was written is Exhibit A which the Respondent used to transport herself from Port Harcourt to Lagos. Exhibit B is the ticket from Lagos to Port Harcourt. Thus, this exemption clause applies to the transport tickets {Exhibits A & B) used by the Respondent. It was based on this that the trial Court held that the Respondent was bound by it. This error is at page 69 lines 14-19 thus:

Furthermore, on the tickets Exhibit A, it is clearly inscribed under caption “NOTICE/CONDITION item 3 “Luggages are carried without inspection and at owner’s risk.”

This by itself exempts the defendant from liability with regards to the goods in question.

This unfortunately is not the case of the Respondent. It must be noted that Exhibits A & B apply to transport ticket of passengers with their luggage. In the instant case however, the Respondent entered into a separate contract for the

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carriage and delivery of her goods/luggage by the Appellant evidenced vide Exhibit C from Lagos to Port Harcourt. Exhibit C was the receipt for the carriage of the Respondent’s goods from Lagos to Port Harcourt separately entered between the parties. Parties are bound by the terms of their contract and if any dispute should arise with respect to the contract, the terms in any documents which constitute the contract, are invariably the guide to its interpretation. See Per MOHAMMED, J.S.C in ONYKWELU V. ELF PETROLEUM (NIG) LTD. (2009) LPELR-2733 (SC). It must be noted that it is because of the nature and class of goods the Respondent wanted to be carried and delivered to Port Harcourt and because of their safety and protection that she entered into a distinct contract with the Appellant evidenced by Exhibit C, separately paid for. There was or no exemption clause contained on Exhibit C for the exculpation of the Appellant from liability to damage since it owed duty of care to the Respondent for the safety of the goods. The trial Court was manifestly in error to import the exclusion/exemption clause in Exhibits A & B into Exhibit C, being a separate category

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of contract. To read a meaning different from that contemplated by the parties in this case is what the lower Court considered to be denial of fair hearing. I must without ado commend that the lower Court did well to have discovered and sifted this error early enough which would have denied the Respondent her right to fair hearing of her suit. This matter was well explained and reasoned by the lower Court in the 2nd paragraph of page 138 thus:

The other issue raised by the appellant is whether the reliance by the lower (trial) Court on Exhibit A, particularly the exemption clause contained therein did not occasion a miscarriage of justice. As observed earlier in this judgment, Exhibit A, which the learned trial judge referred to and relied on in his judgment at page 69..,was the receipt for the appellant’s outward journey from Port Harcourt to Lagos. It was not a return ticket. She had no complaint about that leg of journey. Her complaint arose from her return journey from Lagos to Port Harcourt, evidenced by Exhibits B and C respectively, Exhibit B is the receipt covering the return journey, while Exhibit C is the charge for the extra luggage. I agree

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with learned counsel for the appellant that the learned trial judge erred when he referred to and relied on Exhibit A and thereby came to wrong conclusion. The only relevance of Exhibit A was to show that the appellant traveled to Lagos on the respondent’s bus.

Furthermore, at page 139, the Court below also rationalized that:

The second issue for determination is whether the learned trial judge raised the issue of exemption clause suo motu without affording the parties an opportunity to address him on it and thereby occasioned a miscarriage of justice.

Having held in the course of resolving the first issue that the learned trial judge erred in relying on Exhibit A (which contains the exemption clause) in determining the case before him, the issue as to whether he raised the issue of exemption clause suo motu or not has become otiose.

There is apparently an operating and functional error based on the misconception of the facts and evidence by the trial Court that majorly and grossly worked out injustice against the Respondent and led to the loss and dismissal of her case before the trial Court. Save for the lower Court, she would have

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suffered an irredeemable injustice! An appellate Court will not embark on a re-evaluation of the evidence led by the parties in the trial Court simply because a party made an allegation of improper evaluation of evidence and formulated one of the issues for determination. An appellate Court will only do so where a party visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. See Per OGUNBIYI, J.S.C in ALI V. STATE (2015) LPELR-24711(SC).

I give a tap at the back to the lower Court in stepping in to wrest justice for the Respondent denied her by the trial Court. The issue is resolved against the Appellant and judgment of lower Court delivered on 18/6/2009 is hereby affirmed. The appeal is dismissed with costs. of N500,000.00 against the Appellant.

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SC.177/2011