International Messengers Nigeria Limited Vs Engineer David Nwachuku (2004)
LAWGLOBAL HUB Lead Judgment Report
MUSDAPHER, J.S.C.
By a writ of summons issued by the High Court of the Federal Capital Territory, Abuja and in suit No. FCT/HC/CV/414/93, the plaintiff, Engineer David Nwachukwu claimed against the defendant, International Messengers Nigeria Ltd., a courier company, as per paragraph 14 of the statement of claim, as follows:-
“Whereof the plaintiff claims from the defendant the sum of one million Naira as general damages for the injuries that occurred to him as a result of the defendant’s negligence and breach of duty of care.”
In its statement of defence, the defendant denied liability and the matter proceeded to trial where the parties led evidence. In his judgment delivered the 24th day of September, 1997 the trial Judge found for the plaintiff but held that there was contributory negligence on the pari of the plaintiff (but did not indicate the extent) and awarded the plaintiff general damages in the sum of N100,000.00.
The learned trial Judge held in particular:-
“In assessing damages, the delay caused by the defendant in not sending the letter before the date of the interview caused loss of opportunity to the plaintiff, which is a direct natural or probable consequence of the act of the defendant. Shell, that invited the defendant for an interview, after examining all his papers, found him to be worthy of such invitation. The plaintiff has lost his valuable opportunity. After a very careful assessment, this court has awarded to the plaintiff the sum of N100,000.00 as damages only.”
The defendant felt unhappy with the judgment and appealed to the Court of Appeal. In accordance with the notice of appeal, the Court of Appeal considered the following issues formulated by itself for the determination of the appeal:-
“(1) Whether the lower court was right when it found the appellant liable in negligence. Subsumed in this issue is:-
Whether the lower court was right when it held that the defendant owed the plaintiff a duty of care to advise its Post Office Box before the 1st November, 1993.
(2) Whether there was any evidence to sustain the award of damages made by the lower court. Subsumed in this issue are two sub issues as follows:
(a) Whether the lower court was right to have made an award for damages for lost opportunity when the evidence of injury led is for mental and psychological shock.
(b) Whether the award for lost opportunity was based on mere speculation or a mere probability. (3) Whether the lower court was right when it held there was causal connection between the act of the defendant and the plaintiff missing the interview.”
In its judgment delivered the 18/4/2000, the Court of Appeal per Oduyemi, JCA and agreed to by Coomassie and Bulkachuwa, JJ.C.A found no merit in the appeal and dismissed the same. The defendant, hereinafter called the appellant, and the plaintiff, the respondent filed a notice of further appeal to this court. Before the consideration of the issues submitted to this court for the determination of the appeal, it shall be necessary to set out the relevant facts. The action was filed by the respondent at the trial Court because he was not happy with the way and manner his mail was handled and delivered to him by the appellant a courier company. In response to his application for employment, Shell Development Company Nigeria Ltd. (hereinafter referred to simply as Shell), the respondent was invited for interview at Port-Harcourt Shell’s Head Office. A letter was delivered to the appellant’s office at Port-Harcort for delivery to the respondent at Abuja. The letter was handed over to the appellant at its office at Port-Harcourt on the 26/10/1993 at 6.15 p.m. The letter which was written on the 20/10/1993 inviting the respondent to the interview fixed for 1/11/1993 did not contain any address for delivery. It was to be kept with the appellant at its office at Abuja for the respondent to personally come to collect. The appellant should only advise the respondent of the arrival of the letter at Abuja through a Post Office Box number, The appellant claimed that the letter arrived Abuja on the 29/1 0/1993 at about noon and that was Friday. Saturday and Sunday were not working days and the appellant dispatched the advice to the respondent on the 2/11/1993 a day after the interview was scheduled to hold at Port-Harcourt. The respondent did not even receive this advice until the 15th of November, 1993. The respondent claimed that the letter arrived Abuja on the 26/10/1993 and the appellant accepted to deliver the advice to the respondent within 24 hours of the arrival, but the appellant failed to despatch the letter to the Post Office Box until the 2/11/1993. Thus the respondent missed the interview and accordingly made a claim for negligence and breach of duty of care against the appellant for non-delivery of the letter on time.
Distilled from the notice of appeal filed against the decision of the Court of Appeal three issues for the determination of the appeal were identified and submitted to this court. An objection against the first issue was raised by the respondent. At the hearing of the appeal before this court, the learned counsel for the appellant, rightly in my view, conceded the point and abandoned issue No. 1. Issue No.1 is accordingly struck out. The two issues remaining are:-
“2. Whether the Court of Appeal was right in holding that the defendant/appellant was negligent in handling the said package which negligence resulted in damages to the plaintiff/respondent.
- Whether the Court of Appeal was right to have made an award for damages for lost opportunity having regard that the plaintiff/respondent did not claim for lost opportunity but for mental and psychological shock.”
I shall now discuss issue No.2 as it appears in the appellant’s brief and then issue No.3.
Issue No.2
This issue is concerned with whether on the facts it can be said that the appellant was liable to the respondent in the tort of negligence, simply because the appellant did not despatch the invitation letter to the interview within the time to enable the respondent to attend the interview on the 1/11/1993. To put it another way, could it be said that the appellant owed a duty of care to the respondent to despatch the letter so as to reach the respondent in time to enable him attend the interview on the 1/11/1993 In his judgment Oduyemi, JCA observed:-
” … I have no doubt that the respondent who was the addressee of the letter by Shell was as close in proximity to the appellant as was Shell with whom it had contract and was as such in contemplation of the appellant, carelessness or negligence on whose part, may be likely to cause damages to the addressee respondent thus making a prima facie duty of care to arise. …
I am quite satisfied with the finding of the learned trial Judge that even (if) were the 29/10/1993 to be the accepted date of the arrival of the letter in Abuja, it was an act of negligence for which the appellant would be liable that by an error of judgment it did not consider it necessary to communicate the postal box address of the respondent until the 2nd of November, 1993.”
He went on to observe as did the trial Judge that the delay of the appellant in sending the notification on the 2/11/1993, after the date fixed for the interview “was, a natural and direct cause of the plaintiffs loss of opportunity.” Thus it was found as a fact that the appellant owed the respondent duty of care, the appellant was in breach of that duty of care and damages had resulted from that breach.
It is submitted on behalf of the appellant, that duty of care owed to the respondent was to deliver the package intact and that there was no duty of care to deliver the invitation letter to enable the respondent attend the interview on the 1st of November, 1993. It is argued that the following facts must be taken into consideration in order to gauge the culpability of the appellant in negligence:- (1) There was ‘no physical address to which The letter was to be delivered.
(2) The letter arrived Abuja on a Friday and two days thereafter were not working days.
(3) The letter was not marked urgent.
(4) The letter was not marked deliver as soon as possible.
(5) The letter was not marked to be delivered by the 31st of October.
(6) Shell did not ask the appellant to deliver on or before 31st October.
(7) Appellant was not aware of the contents of the letter. It is thus submitted that on these facts it could not be in the contemplation of the appellant that its failure to advise the postal box on or before the 31st of October would cause damages to the respondent. And accordingly there was no duty of care to advise the box before the 31st of October See BDC Ltd. v. Hopstrand Farms Ltd. (1986) 26, Dominion Law Reports, 4th page 1.
It is again submitted that under the circumstances, the appellant had a duty only to deliver the message to the box within a reasonable time and it had done so. It is also submitted that no evidence was led to show any causal connection between the purported carelessness of the appellant and the loss of opportunity to attend the interview suffered by the respondent.
The respondent’s counsel on the other hand argued that negligence was proved against the appellant in the way and manner it handled the mail and the negligence caused damage to the respondent. It was evident that the appellant undertook to deliver the mail within 24 hours. It is further argued that the appellant entered the contract for the respondent’s benefit and Shell relying on the appellant’s skill, a duty of care thus arose vide Hedley Bryne v. Heller (1964) AC 464 at 594. It is again submitted that a person not party to a contract can still claim damages for breach of that contract if duty of care is owed to him see Makwe v.Nwukor (2001) ]4 NWLR (Pt. 733) 356 at 361, Savannah Bank (Nig.) Ltd. v. S. I. O. Corporations (2001) 1 NWLR (Pt. 693) 194 at 197, Amadi v. Essien (1994) 7 NWLR (Pt. 354) 91 at 102, Techno Mech (Nig.) Ltd. v. Ogunbayo (2000) 14 NWLR (Pt. 639)] 50 at 153, A. N. T S. v. Atoloye (1993) 6 NWLR (Pt. 298) 233 at 236. It is again submitted that appellant owed the respondent a duty of care to ensure that mail is carefully and promptly delivered as it contracted to do within the normal delivery period of 24 hours and the appellant can reasonably foresee that the respondent may be injured if the mail is not delivered within the stipulated period of 24 hours. Learned counsel further refers to I. I. T A. v. Amrani (1994) 3 NWLR (Pt. 332) 296 at 300; UBN/PN v. Eskol Paints Ltd. (1997) 8 NWLR (Pt. 515) 157 at 160; NEPA v. Akpata (1991) 2 NWLR (Pt. 175) 536 at 540. It is further submitted, that negligence can be inferred from conduct, since it has been shown that the appellant delivers mail within 24 hours. The failure to deliver the mail in this case shifts the onus to disprove negligence on the appellant and the appellant has failed to prove no fault. See Alao v. lnaolaji Builders Ltd. (1990) 7 NWLR (Pt. 160) 36 at 39, Ohadugha v. Garba (2000) 14 NWLR (Pt. 687) 226.
Now, negligence is the breach of duty to take care. A duty to take care can be imposed by law or can be created by contract or trust. The breach of the contractual duty to take care, however, has not always been regarded as an actionable tort. But it is not uncommon to speak of the negligent performance of a contract, but the law used to be “whenever there is a contract, and something to be done in the course of the employment which is the subject of that contract, if there is a breach of a duty in the course of that employment the plaintiff may recover either in tort or contract.” See Brown v. Boonnan (1844) 11 CL&F. It is now well recognized that a breach of a contractual duty must be dealt with according to the law of contract, and can not be regarded as a tort of negligence, although the same facts may in some cases amount to a breach of contract and also the tort of negligence. This may be illustrated in a case of the relationship of a surgeon and his patient, where the surgeon negligently performs an operation, the patient may claim either for breach of contract or in tort. Indeed in the case of death, resulting from the negligent operation, a third party may sue in tort. It had been argued before that A’s breach of contract to B should not be considered capable of giving rise to liability in tort for harm caused to C. See Winterbottom v. Wright (1842) 10 M & W 109, in which the plaintiff was employed to drive a mail coach by one Atkinson, who had been engaged to cany mail by the Postmaster-General, the latter had hired a coach from the defendant, who had undertaken to him that it would be kept in a fit, proper, safe and secure state. The plaintiff’s claims for damages in respect of injuries suffered when the coach broke down on a journey owing to its dangerous state was rejected by the court, which accepted the defendant’s contention that “whenever a wrong arises merely out of the breach of contract … the party who made the contract alone can sue. “This approach was rejected by the House of Lords in Donoghue v. Stevenson (1932) AC 562 as Lord Macmillan put it, “there is no reason why the same set of facts should not give one person a right of action in contract and another person a right of action in tort.” See also Hedley Byrne case (supra). See also Junior Books Ltd. v. Veitchi Co. Ltd. (1983) 1 AC 520 where the House of Lords held that a specialist flooring sub-contractor who had built a defective but not dangerous floor could owe a duty of care to the owner of the building who had to replace it as the result. Clearly, there was no privity of contract between the parties, their Lordships found that there was a “special relationship” between them which enables the owner to sue. See also White v. Jones (1955) 2 AC 207 coming home on this point this court per Karibi- Whyte, JSC in the case of Abosomwan v. Merchantile Bank of Nigeria Ltd. (1987) 3 NWLR (Pt. 60) 196 at 208, (1987) (Pt. 2) Vol. 18, NSCC 878 at 887 observed:- “The fog over remedies arising from contractual obligations introduced into the law by what was conveniently regarded as the “privity of contract fallacy” was cleared by the brightness brought in the lucidity of the arguments of Lord Atkin in Donoghue v. Stevenson (1932) AC 562. The effect of Donoghue v. Stevenson supra is that where a person is injured from a transaction arising from the contract of two person, the third party is not precluded from bringing action on the grounds that he was not a party to the contract, the mis-performance or non-performance of which has resulted in the damage. The duty imposed here is not because there was a contract but because the defendant had implied undertaken not to injure the plaintiff. The rationale in truth is that, even though not so expressed, the obligations towards the contracting party extended to all such persons who were likely to be injured by the acts or omissions of the defendant. They are the neighbours in contemplation or ought to be in contemplation of the defendant.”
‘The recent decision of the House of Lords has summed up the law admirably in Ann v. Merton London Borough Council (1978) AC 728 where Lord Wilberforce stated as follows:-
‘Through the trilogy in this house Donoghue v. Stevenson (1932) AC 562, Hedley Byrne & Co. Ltd. v. Heller Partners Ltd. (1964) AC 465, Dorset Yacht Co. Ltd. v. Home Office (1970) AC 1004. The position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. First one has to ask as between the alleged wrong doer and the person who has suffered damage if there is a sufficient relationship of proximity or neighbourhood such that in the reasonable contemplation of the former,. Carelessness on his part may be likely to cause damage to the latter in which case a prima facie duty of care arises …. ”
Applying the above principles, it is clear in my mind, that the way and the manner the appellant in the instant case executed the contract between Shell and himself could affect the respondent. The appellant by his contract, had accepted the responsibility to deliver the mail to the respondent any failure to deliver the mail or to deliver it late or mis-deliver it may cause damage to the respondent. It is that assumption of responsibility that imposes a duty of care. There is no doubt, the appellant is a courier company, it has special skills and expertise to deliver packages and letters sent through them with speed and accuracy. That is why their services are engaged by customers for the benefit of the customers and the third parties for whom the packages are meant for.
Negligence is the failure to use the requisite amount for care required by law in the case where duty of care exists, accordingly it is now necessary to examine the conduct of the appellant under the circumstances to judge whether the appellant breached its duty in accordance with it’s contract with Shell.
Now, the learned trial Judge had found as a fact that the letter inviting the respondent arrived Abuja on a Friday, and Saturday and Sunday were not working days. At least there was no contrary evidence led by the respondent. There was no indication that there was any urgency in the matter, as a matter of fact, the instruction the appellant had from Shell was to keep the letter and merely to send a notice of its arrival through a Post Office Box number, these points in my view do not suggest urgency – but rather security of the letter or package. The appellant was not aware of the contents of the letter so as to ensure that the respondent was to travel to Port-Harcourt and arrive there to attend an interview fixed for 1/11/1993. It had no knowledge of the fact, that the letter was an invitation to attend an interview fixed for 1/11/1993.
The appellant in any event despatched the letter to the post office on the 2/11/1993. The respondent only received the notification on the 15/11/1993. Considering all these facts I do not agree that the appellant had been careless or negligent in the performance of his contract. The arguments of the learned counsel for the respondent that the appellant agreed to deliver the package or advise within 24 hours is not pleaded and the appellant cannot rely on such piece of evidence which was given during cross-examination and which only related to a situation when an address of delivery is given. It is even clearer that the respondent could not be responsible for the delay, when the respondent only received the notification slip after 13 days of its placement in the postal letter box. I am of the view that based on the facts, the appellant could not be said to have breached the contract or caused the delay causing the respondent any damage. I accordingly resolve issue No.2 in favour of the appellant. The appellant was not negligent in his handling of the mail dispatched by Shell to the respondent.
Issue No.3
This is concerned with whether the award of damages is sustainable having regard to the statement of claim and the evidence led and what was awarded by the court. Now, by paragraphs 13 and 14 of the statement of claim, the respondent pleaded thus:
- That the plaintiff suffered nervous shock and mental distress as a result of the defendant’s conduct; and
- Whereof the plaintiff claims from the defendant the sum of one million Naira as general damages for the injuries that occurred to him as a result of the defendant’s negligence and breach of duty of care.”
In his evidence at page 17 of the printed record, the respondent said:-
“As a result of that, I suffered mental and physiological (sic) shock for not getting the job.”
In its judgment on page 101 of the printed record, the trial court awarded damages to the respondent because the respondent “had lost valuable opportunity” The Court of Appeal in its judgment confirmed the award at page 169 of the record as follows:-
” … I am of the opinion that the learned trial Judge rightly held that the delay of the defendant in sending the notification before the date of the interview was a natural and direct cause of the plaintiff’s loss of opportunity.”
It is submitted for the appellant that the claim made out by the respondent was for damages for nervous shock and mental distress as contained in the pleadings and for mental and psychological shock as testified by the respondent. There was no claim for “loss of valuable opportunity” and the court was wrong to have so awarded the damages on that ground. Learned counsel referred and relied on the cases of Okoya v. Santilli (1994) 4 NWLR (Pt. 338) 256 at 303 and 304, Commissioner For Works Benue State and Anor. v. Devcon Development Consultants Ltd. and Anor. (1988) 3 NWLR (Pt. 83) 407, N.H.D.S. Ltd. v. Mumini (1977) 2 SC 57.
It is further argued that even if it was open for the court to make the award for “lost valuable opportunity,” the appellant still contends, the award was not based on any facts adduced by evidence but on mere speculation as there was no guarantee or certainty that the respondent would have secured any job had he attended the interview. It is submitted that the award of N100,000.00 damages for lost opportunity was arbitrary and ought to be set aside vide Davies v. Taylor (1974) AC 207.
The learned counsel for the respondent argued that by his statement of claim, the respondent claimed general damages for negligence and breach of duty of care and that the respondent led evidence to prove damage and the award was not speculative or arbitrary.
Learned counsel referred to the case of Joseph v. Abubakar (2002) 5 NWLR (Pt. 759) 185 at 189, UBA Ltd. v. Achoru (1990) 6 NWLR (Pt. 156) 254. It is again submitted that the claims of the respondent being taken by Shell after the interview were substantial. It is argued that general damages can be awarded under the head of “injuries sustained and for pains and suffering” even where the plaintiff failed to supply details of the injuries. Learned counsel referred to the following case. Eseigbe v. Agholor (1990) 7 NWLR (Pt. 161) 234 at 238, Igbinovia v. Agboifo (2000) 12 NWLR (Pt. 681) 336 at 338, Bello v. Pategi (2000) 8 NWLR (Pt. 667) 21 at 23.
Let me start with the obvious. It is settled law that a court cannot grant to a plaintiff a remedy which has not been claimed and established by the pleading and the evidence respectively. The Court has no power to do so. See Ekpenyong and Ors. v. Nyong and Ors. (1975) 2 SC 71, Kalio and Ors. v. Daniel Kallo (1975) 2 SC 15, Nigerian Housing Development Ltd. and Anor. v. Mumini (1977) 2 SC 57 at 81, University of Lagos v. Dada (1971) 1 UILR (Pt. 3) 344 and Union Beverages v. Owolabi (1988) 1 NWLR (Pt. 68) 128 at 133. Thus a Court cannot grant a relief which has not been specifically prayed for. See Dyktrade v. Omnia (2000) 12 NWLR (Pt. 680) 1, (2000) 7 SC (pt. 1) 56 at 68, Oyekanmi v. NEPA (2000) 12 SC (Pt. 1) 70.
It is also obvious that negligence is only actionable if actual damage is proved. There is no right of action for nominal damages in the tort of negligence. In Munday Ltd. v. L.E.E. (1916) 2 KB 331 at 334 Lord Reading, C. J. stated:-
“Negligence alone does not give a cause of action, damage alone does not give a cause of action; the two must co-exist.”
In negligence actions the measure of damages is that the injured party is to be placed back, so far as money can do it, in the same position as he would have been in had it not been for the defendant’s negligence. This is subject to the rules of remoteness of damages and in cases of personal injuries, a reasonable sum for pain and suffering. The dominant rule of law is the principle of restitutio in integrum. In negligence cases, damages are also divided into general and special damages. General damages are those damages which the law presumes to flow from the negligence of which the plaintiff has complained. These damages must be specifically averred to have been suffered and must be proved. See Admiralty Commissioners v. S. S. Susquehanna (1926) AC 661, Ezeani v. Ejidike (1964) 1 All NLR 402.
As shown above, the respondent pleaded under paragraphs 13 and 14 of the statement of claim, that he had suffered nervous shock and mental distress and had claimed one million naira for general damages. The assessment of damages should be based on the pleadings and the evidence adduced, and where there is no evidence to support a claim for damages, the claim should be dismissed. See W.A.E.C. v. Koroye (1977) 2 SC 45, Dumez v. Ogboli (1972) 1 All NLR (Pt. 1) 241, (1972) SC 196.
The trial court as shown above assessed general damages for “lost valuable opportunity” and the Court of Appeal confirmed this. It is clear that respondent claimed only for personal injuries of shock and mental distress and in his evidence added “psychological shock.” The respondent’s claims as per his pleadings and evidence were said to be for personal injuries and not for “lost opportunity”. Both the trial court and the Court of Appeal are accordingly wrong to have awarded the damages they did. A claim for damages in personal injury cases is a claim for compensation for loss of capacity for future earnings or for a diminished enjoyment of life as a result of the injury suffered and for pain and suffering. In the instant case, the respondent claimed only for personal injury – which clearly he did not suffer. See Obere v. Eku Baptist Hospital (1978) 6/7 SC 15.
In any event, the respondent did not claim for “lost opportunity” as was awarded by the lower courts, the award cannot stand. See Kalio v. Daniel Kalio supra.
It is the law that before a court begins a meaningful assessment of damages, it must be sure of the nature of the claim, that is to say, whether the claim is in contract or in tort, if in tort, the nature of the wrong alleged. As mentioned above, the principles guiding the award of damages are different from those guiding the award of damages in contract. See James v. Mid Motors Nigeria Co. Ltd. (1978) 11 and 12 SC 31. In this case, it is clear that the claim in tort is negligence, it is also necessary to make further inquiry whether the tortuous conduct found had occasioned personal injuries, economic loss or other social losses or a combination of those losses. See Agbanelo v. U.B.N. Ltd. (2000) 7 NWLR (Pt. 666) 534 at 550-551.
The problem in this case is that the respondent has alleged to have suffered personal injuries i.e. mental and psychological distress and shock as the result of alleged negligence of the appellant, while both the trial court and the Court of Appeal awarded damages for lost opportunity, which is not a physical injury as claimed by the respondent, but economic loss. It is very clear that the lower courts were wrong to have awarded damages on matters not pleaded and proved. To be entitled to compensation or damages in tort, the wrong must be accompanied by loss or damage, where no loss or damage occurs or where none has been proved, there can be no liability. I accordingly resolve the 3rd issue in favour of the appellant against the respondent.
All the remaining issues having been resolved in favour of the appellant, this appeal succeeds and is allowed. The judgments of the courts below including the orders for costs are hereby set aside in their place I order the dismissal of the respondent’s claims. The appellant is entitled to costs assessed at N3,000.00, N5,000.00 and N10,000.00 at the High Court, Court of Appeal and this court respectively.
SC.132/2000