International Messengers Nigeria Limited V. A.O. Tawose (2003)

LawGlobal-Hub Lead Judgment Report

CHRISTOPHER MITCHELL CHUKWUMA-ENEH, J .C.A.

This is an appeal against the decision of the High Court of Lagos State (Coram: Thomas, J.) in an action, in which the plaintiff claimed the sum of N115,000.00 as damages for the failure and/or neglect of the defendant company to deliver the plaintiff’s goods to wit:- examination scripts to a consignee in London. The defendant admitted the non-delivery of the package, but relied on the company’s standard trading conditions to limit its liability.

By an amended statement of claim dated 7/3/88 the plaintiff claimed special and general damages as follows:
N : K
(a) cost of the two flights to London                                              1,669.00
(b) cost of board and transport in England                                      15,000.00
(c) Cost of conducting another examination and returning some fees     8,125.00
(d) resulting damage to and collapse of trade and goodwill                 75,000.00
(e) general damages                                                                   15,206.00
Total:                                                                                    115,000.00

The trial court on 28/2/92, gave judgment in favour of the plaintiff as follows:
“(a) The sum of N1,669.00 being cost of two flights to London and back in search of answer scripts.
(b) N15,000.00 for cost of boarding and transport in England; and
(c) N7,500.00 being general damages.”

Dissatisfied with the decision the defendant/appellant by a notice of appeal filed on 12/3/92, appealed to this court upon 6(six) grounds of appeal and has sought to have the decision set aside.The parties filed and exchanged their briefs of argument. The appellant in its brief identified two issues for determination.

And they are reproduced as follows:
“(a) Whether there was credible evidence to justify the award of damages for cost of the trips to London; and
(b) Whether having awarded special damages, the lower court was justified in making an award for general damages for breach of contract.”

The plaintiff/respondent also identified two issues for determination and they are reproduced as follows:
“(a) Whether evidence adduced by the plaintiff is not sufficient to justify the award of damages for cost of the trips to London and back.
(b) Whether having awarded special damages, the lower court cannot in addition award general damages for negligence in a case of contract.”

The appellant also on 27/10/03, filed a reply brief. The facts of this matter are more or less agreed by the parties. The plaintiff/respondent was the representative of an educational institution overseas and conducted examination in Nigeria for the Institution. After such examination, the answer scripts were sent to the institution overseas for assessment of the candidates. The plaintiff/respondent after one of such examinations handed over the examination scripts to the defendant/appellant, a courier company, to deliver to the institution in England. The answer scripts were never delivered in breach of the contract and the plaintiff/respondent instituted this suit.

The appellant’s argument on issue one hinged on the special damages awarded for the cost of the two flights to London and the cost of board and transport in England. The appellant submitted that the court below erred in making the award as he did. As regards the first trip which took place in January, 1984, it submitted that the trip was unconnected with the lost package as the package was despatched on 7/3/83. The 2nd trip which was made between 13/10/84 and 20/10/84 it was contended, was made after the instant suit had been instituted on 24/5/84. The appellant argued that the respondent having made the trip after the suit had commenced the award was made in error. The tickets for the said trips were as per exhibits J and K.

On the question of board and transport, the appellant submitted that there was no evidence to sustain the award of N15,000.00 for board and transport. The claim was also challenged on the ground of want of strict proof as no receipts were tendered in their support. See: Imana v. Robinson (1979 – 81) 12 NSCC 1 at 11.On issue two, the appellant submitted that the court below erred in that having awarded special damages, the award of general damages was done in error. See: Omonuwa v. Wahabi (1976) 10 NSCC 233 at 238; Kusfa v. United Bawo Construction Co. Ltd. (1994) 4 NWLR (Pt. 336) 1 at 16. The appellant urged the court to allow the appeal.

The respondent contended on issue one of his brief that as no issue was joined between the parties as to whether the respondent made any trips that the point could not be taken excepting as a fresh issue on appeal for the first time with leave. See: Osakwe v. Governor of Imo State (1991) 5 NWLR (Pt. 191) 318 at 342 – 344 G-A; Elakhame v. Osemobor (1991) 6 NWLR (Pt. 196) 170 at 176 – 177 H-A. The respondent also submitted that he gave sufficient evidence to sustain the awards and referred to McGregor on Damages, 13th edition page 167 – 168 paragraph 237 and at page 570 paragraph 840. He also relied on the case of Adeoshun v. Adisa (1986) 5 NWLR (Pt. 40) 225 at 236 A-B, to submit that non-production of receipts for board and transport in England was not fatal to the claim.

On issue two, the respondent submitted that the action being on bailment encompassed aspects of contract and tort, hence, the court would make awards as to special and general damages. See: Omonuwa v. Wahabi (1976) NSCC 233 at 238 line 30 and lines 47 – 51. He argued that he was not adequately compensated under the first head of claim, under special damages hence, the award of general damages which did not amount to a double compensation.

The court was urged to dismiss the appeal. The appellant on its reply, argued on whether the cost of the trips was recoverable, particularly after the writ had issued. See: Original Hartlepool Collieries Co. v. Gibbs (1877) 5 Ch. D 713 at 718 and at 719 – 770; also see, Gowon v. Ike Okongwu (2003) 6 NWLR (Pt. 815) 38 at 49. It relied on Ogundipe v. Attorney General Kwara State (1993) 8 NWLR (Pt. 313) 558 at 568 B-C; Ngilari v. Mothercat Ltd. (1999) 3 NWLR (Pt. 636) page 626 at 647 to submit that, negligence must be pleaded with particulars and proved accordingly, which it submitted were not done here. See: Adeoshun v. Adisa (supra).

This matter has raised very interesting points, although one might find no point quibbling over a couple of naira at variance between the parties in this matter. However, the gist of this appeal, turns on whether the plaintiff/ respondent can recover for pecuniary loss incurred by him in reasonable attempts to avoid loss, even though the resulting damages may appear to be greater than it would have been had the mitigating steps not been taken.