Mallam Ibrahim Sa?id Mohammed V. Dhl International Nigeria Limited (2000)
LawGlobal-Hub Lead Judgment Report
UMOREN, J.C.A.
The claim before the lower Court is as hereinafter set out, the appellant was the Plaintiff in the Court below. He instituted an action claiming N348,040.00 from the defendant, the respondent in the lower Court for breach of contract for the delivery of a parcel, accepted in Maiduguri, from the appellant for delivery to the consignee at Istanbul, Turkey, in the course of his business.
The respondent is a limited liability company who carries on courier services for delivery of mails, parcels and goods within and outside Nigeria. The respondent, failed to deliver the parcel.
The claims before the Court below is as contained in paragraph 13 of the plaintiffs statement of claim. The claim is set out below:
“Particulars
(1) Value of contents of the parcel
(a) One coconut N10.00
(b) One small measure of Ridi N400.00
(c) 1 large Python skin N4,200.00
(d) 4 large Aligator skins N3,900.00
= = = = = =
N8,510.00
= == = = =
(2) Transportation to and from Kano and
Air Fare from Kano to Istanbul, Turkey N40,000.00
(3) Accommodation and travelling
Expenses at Turkey for 2 weeks N48,020.00
(4) Amount paid to the defendant for the
delivery of the parcel N1,520.20
(5) Loss of Profit from the export trade worth
350,000 American Dollars due to the non-delivery
of the parcel containing the samples N250,000.00
==========
Total of (1) to (5) N348,040.00
= = = = = = =
And plaintiff claims the said N348,040.20 as damages. Dated this 1st day of February, 1995”.
The respondent, (defendant in the court below) also filed its statement of defence denying few of the arguments in the plaintiffs statement of claims. At the hearing, the plaintiff gave oral evidence and tendered three Exhibits, viz: (A, B, & C). He closed his case.
The respondent fielded no witness and apparently rested his case on the plaintiffs case although he did not expressly say so.
Learned counsel for the parties addressed the Court.
The learned trial Judge in his judgment, contained at pages 19-30 of the record of appeal, dismissed the plaintiffs claim Nos. 2, 3 & 5. But awarded to the plaintiff claim Nos.1 & 4.
The appellant being dissatisfied with that part of the decision of the trial Court, appealed to this Court on three grounds of appeal, reproduced hereunder:
Grounds of Appeal
(1) The learned trial Judge erred in law when in considering the plaintiffs claim under particulars numbered (2) in the statement of claim she held that:
“It is pertinent to mention that the claim in question is a special damage which must be strictly proved and the proof despite the evidence of the plaintiff which is uncontradicted must need to be proved by the translation of Exhibit C as well as the production of the passport in evidence or certified copy in the absence of the original without such, I hold as rightly submitted by the defence counsel, that the plaintiff has failed to prove this leg of the claim.
Particulars
(a) Exhibit ‘C’ is written both in English and Arabic and does not require any translation.
(b) Exhibit ‘C’ itself is the best evidence (section 76 Evidence Act).
(c) As the defendant called no evidence, the plaintiffs claim are provable on a minimal of proof.
(d) The learned trial Judge had found that plaintiffs evidence on particular (2) not contradicted.
(e) The production of the plaintiffs passport is not a sine qua non of awarding the special damage and the presumption under section 149(d) of the Evidence Act does not apply.
(f) Defendant failed to cross-examine as to the amount claimed as transportation and air fare.
- The learned trial Judge erred in law when she rejected the plaintiff’s claim, under particular (3) in the statement of claim and held that:
“The claim in question is a special damage and on the authority of F.H.A. v. Sommer under reference, with the plaintiff being precise in his calculation, he is under obligation to give the defendant access to the facts which make such calculation possible.
The said facts required and necessary are inclusive of the receipt as evidence from the hotel. The failing to so produce calls for invocation of section 149 (d) as amended, of the Evidence Act as rightly argued by the defence counsel…”
Particulars
(a) The uncontroverted evidence before the Court was that Hotels in Turkey were not issuing receipt and that the plaintiff got none.
(b) Section 149 (d) of the Evidence Act cannot apply in the circumstances of this matter.
(c) The facts and circumstances leading to the decision in F.H.A. v. Sommer are distinguishable from the present case.
Briefs of argument were filed and exchanged.
The appellant distilled one issue from the grounds of appeal as follows:-
Whether having regards to the evidence and the pleadings, the trial Court was right to have dismissed the appellant’s claims for transportation to and from Kano, Air Fare from Kano to Istanbul, Turkey and for accommodation and travelling expenses at Turkey for two weeks?.
The respondent filed his brief and raised two issues for determination.
“1(1) Whether ones the balance of probability, the appellant discharged the burden of proof placed on him by section 137 of the Evidence Act, as amended?.
Whether the documents written in a foreign language and relied upon by the appellant in proof of his special damages were of any probative value to found any of his claims”.
The respondent indicates he will argue the two issues together. The main grouse of the appellant is that the trial court dismissed the appellant’s claims Nos. 2 & 3. Before I take on the arguments of the learned Counsel, it is necessary for me to have a second look at paragraph 13 (2) of the statement of claim. It reads as follows.
“(2) Transportation to and from Kano and Air Fare from Kano to Istanbul, Turkey, N40,000.00”.
It is my humble observation here that the plaintiff pleaded ‘transportation’ To and From Kano and AIR FARE FROM KANO TO Istanbul, Turkey. No mention was made of his return fare. It was not pleaded that the appellant returned from Istanbul, Turkey, or whether the N40,000.00 was inclusive also of the fare from Istanbul to Kano. So that the evidence of his return journey to Nigeria at page 10 lines 34 & 35 of the record and the return fare as in Exhibit ‘C’ is not borne out by any pleading. By this observation, I intend to say that counsel should make their pleading water-tight if no piece of the evidence is to be perceived as floating in the air or flouting the rules of pleadings otherwise, evidence that is not tied to pleading goes to no issue. See Nigerian Fishing Co. v. W.N.F.C. (1969) 1 NMLR 164, at page 167 Coker Ag. C.J.N. observed as follows:-
“It is manifest from his observations that the learned trial Judge found that the plaintiffs had failed to prove the case which they had set up on their pleadings. Obviously, everything else that was canvassed by the plaintiffs went to no issue of the case for if it were otherwise, the value of pleadings would be seriously assailed and the necessity for them rendered useless”.
It is the duty of the court to jettison all evidence which have not been pleaded. In George v. Dominion F. M. (1963) 1 All NLR 71 at 78-79, (1963) 1 SCNLR 117 Baira mian F.J observed as follows:-
“There is a passage in the judgment of Lord Sumner in that case which is in point in this appeal: it is this:-
“Much of the oral evidence was strictly immaterial since, though obtained in cross-examination, it went to no issue. It may therefore be disregarded”.
Onyeama J. (as he then was), having rightly refused leave to add the plea of illegality to the defence, was right in disregarding all evidence bearing on illegality whether in the cross-examination of the plaintiff’s witness or in the evidence for the defence: for any such evidence had no bearing on the issue for adjudication”.
This being the legal position, the plaintiff’s evidence of his return journey from Istanbul to Kano should be taken with a grain of salt. I now come to the appellant’s grouse in this appeal. The appellant complained in his only issue against the lower court’s dismissal of his claim for:-
(i) Transportation to and from Kano,
(ii) Air fare from Kano to Istanbul, Turkey,
(iii) Accommodation, and
(iv) Travelling expenses at Turkey for two weeks.
(i) and (ii) above amount to N40,000.00, while
(iii) and (iv) amount to N48,020.00
All these make up what the appellant referred to as claims 2 & 3 in his statement of claim and in his brief of arguments. The appellant did not appeal against any other head of claim. I have split the claim into (i), (ii), (iii) and (iv) for ease of reference and for a clearer view of the appeal. (i) and (ii) relate to appellant’s claim 2, and (iii) and (iv) relate to claim 3. This is based on his pleading and the way he phrases his only issue for determination.
The appellant in his brief complained that the action was in contract and not in tort and that the learned trial Judge was wrong in accepting the defendant’s counsel’s address as facts before the Court, that the claim before the Court below was for special damages and as such must be strictly proved. Learned Counsel submitted that the air ticket bearing the appellant’s name and admitted without objection as Exhibit ‘C’, contained all the details about the journey. The ticket according to counsel, was both in English and Arabic and submitted that it is superfluous to require any further translation of it.
The respondent in his brief contends that,’ the travelling endorsements on the said Exhibit ‘C’ are written in Arabic which is not the language of the High Court of Borno State. The appellant refused and failed to have these endorsements interpreted into the language of the Court. The respondent therefore, could not have cross-examined the appellant on the document in which the most important endorsements on it were written in a language that is not English, or interpreted into English language, or that the respondent and the Court would understand and appreciate its significance.
The respondent further contended in his brief that the refusal of the appellant to have the said Exhibit ‘C’ interpreted, prevented the lower Court from being able to determine equivocally whether the appellant actually travelled to Turkey or not. He submitted that, Exhibit ‘C’ has no probative value in the assessment of special or general damages by the appellant. He cited S. 133(1) of the Evidence Act as amended. However, from nowhere the respondent pushed forward the non production by the appellant of his passport with the accompanying visa. For the non production, the respondent relied on S.149(d) of the Evidence Act as amended. Learned counsel submitted that the lower court was right in holding that this part of the claim was not proved.
This claim was claim No. 2 in paragraph 13 of the statement of claim. This is the claim I had above split into (i) and (ii). By this, I had wanted what was pleaded under that head to be clearly brought out. Particulars of paragraph 13 of the statement of claim are reproduced above. Led by his Counsel, P.W.1. in-chief, in the lower court said as at page 9; lines 29-31 of the record:
“On 14th October, 1993, I went to Kano and obtained air ticket to Istanbul in Turkey as agreed”
Under cross-examination at P.12 Lines 17-18 of the record, the P. W. 1. said:
“I left Nigeria for Turkey on 21st October, 1993 through Cairo”.
The travelling Air ticket No. 0774407.664:052 was Exhibit ‘C’.
In rejecting this head of claim, the learned trial Judge had this to say at page 27 lines 41 to page 28, lines 1 & 2:
“It is pertinent to mention that the claim in question is a special damage which must be strictly proved and the proof, despite the evidence of the plaintiff which is uncontradicted, must need be proved by translation of Exhibit ‘C’ as well as the production of his passport in evidence or certified copy in absence of original without such, I hold as rightly submitted by the defence counsel, that the plaintiff has failed to prove this leg of the claim”.
I am taking the appeal on pleadings and evidence. I am unable to see where the plaintiffs passport and travelling visa were pleaded either in the statement of claim or of defence or at all canvassed. The defendant in the Court below now respondent, did not even put the plaintiff to the strict proof of all averments in his statement of claim. Apart from the general traverse in paragraph 4 of the statement of defence I failed to see on the record, a proper traverse of averments in paragraphs 9, 10, 11, 12 and 13 of the statement of claim. Rather than answer the averments in the plaintiffs statement of claim, the defendant in the lower Court resorted to irrelevant pleading. I am satisfied that the trial Judge held that the conditions the defendant made much fuss about were on a receipt which the plaintiff had the opportunity to see only after he and the defendant signed the agreement. Those so called terms could not bind the plaintiff. I agree with the learned trial Judge.
However, I am unable to see why the learned trial Judge, after seeing Exhibit ‘C’, was able to hold that that same Exhibit was written in Arabic. I have taken a good look at Exhibit ‘C’. It was issued in 1993. It may not be too legible today, some years after but I suppose at the trial of the case, it was fairly legible. Even as it is, I can read:-
‘Ibrahim S. Mohammed’
‘From Kano’
‘To Cairo’
‘To Istanbul’
‘To Cairo’
‘To Kano’
On the carbon copy of the ticket. At the back of it is written:
‘Passenger Ticket and Baggage Check issued by EGYPT AIR CAIRO’
‘Member of International Air Transport Association’.
‘Each passenger should carefully examine this ticket particularly the conditions inside’.
I have also seen some writing in Arabic. The English is, to my mind meant for English speaking travellers and the Arabic is for Arabic travellers. In fact, I am unable to see why interpretation or translation of the Air Ticket was called for. To my mind, the ticket was perfectly in order for both English and Arabic travellers. It was admitted without objection. There was no proper traverse of paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of the statement of claim. By insufficient traverse, the respondent (defendant in the lower court) did not join issues with regard to the plaintiffs journey to Istanbul, Turkey. Moreover, the non translation of the Air Ticket made no difference because the important portions of the Air Ticket were written in English: that is to say: passenger’s name, the point of embarkation, fare and destination. If all these were written in English as I could see on Exhibit ‘C’ itself, I am at a loss as to what further aid interpretation or translation of their Arabic counterpart could offer. I am convinced that the non-interpretation or translation did not have any effect at all or lead to any miscarriage of justice. In fact, such translation or interpretation would be superfluous. I am unable to appreciate the application to the case before me of the case of Chartenary v. Brazilian, Telegraph Co. (1886 – 1890) All ER 1135 cited and relied on by the respondent’s counsel. In that case, the plaintiff who was a resident in Brazil, executed there a power of attorney giving a London based stock-broker power to buy and sell shares in all, countries on his behalf. The document was in Portuguese and was made in compliance with the forms of Brazilian law. The stockbroker purporting to act on the power of attorney, disposed of certain of the plaintiffs shares in the defendant’s company and the shares were registered by the defendant company in the names of the transferees. The plaintiff who claimed that this transaction had been carried out without his knowledge issued a summons asking that the defendant company should rectify its register by inserting his name therein as the holder of the shares and the question arose whether the power of attorney should be construed according to Brazilian or English law. It was held that although the assistance of competent translators and experts, including Brazilian lawyers, might be required in order to ascertain the meaning of the words used, nevertheless the principle stated above applied to a power of attorney and when shares were bought or sold in England in the exercise of the power then, the power of attorney should be construed according to English law.
Throughout the length and breadth of the appeal before me, I find nothing in common between this appeal and the decision referred to above. I therefore hold that, it has no application to this case.
In the same vein, I hold that the learned trial Judge brought in extraneous matters such as non-production of passport and visa by the plaintiff. Once you can show your air ticket or whatever other travelling ticket, it suffices to explain that you travelled to the destination named therein. To suggest that the air ticket could have been used by someone else, shows the Respondent is desperate and is fishing which the law frowns at.
In respect of the issue of quantum of damages, my view which is supported by a preponderance of authorities, is that this being an action in contract, the basis of the award is governed by the principles laid down in the 19th Century English case of Hadley v. Baxendale (1854) 9 Exch. 341. The principles are that damages in respect of breach should be as:-
“(i) May fairly and reasonably be considered either arising naturally i.e. according to the usual course of things, from such breach of contract itself, or
(ii) May reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it”.
From the foregoing, it could be seen that the principle for the award of damages in contract is based on what could be reasonably said to be damages arising naturally from the breach of contract, and what the parties had contemplated as deducible from their agreement. Thus being an agreement, knowledge, actual or constructive, is imputed to the parties. The question is not whether the Defendant foresaw the damage resulting in the breach. It is whether the possibility of its occurrence should have been within the reasonable contemplation of both parties at the time they entered into the contract. See Koupos v. C. Czarnikow Ltd. (1969) 1 AC 350 at 391.
These principles have been adopted by our Courts and applied. See Nigerian Produce Marketing Board v. Adewunmi (1972) 1 All NLR (pt.2) 433 at 438., P.Z & Co. Ltd. v. Ogedengbe (1972) 1 All NLR (Pt.1) 202 at 205-206.
In NPMB v. Adewunmi (supra) the Supreme Court referred with approval to its earlier decision in Swiss-Nigerian Wood Industries Ltd. v. Danilo Bogo SC 14/70 delivered on 3rd March, 1970 where it was stated.
“The terms ‘general’ and ‘special’ damages are normally inapt in the categorisation of damages for the purposes of award in cases of breach of contract. We have had occasion to point this out before (See Agbaje v. National Motors Ltd. SC 20) 68 dated 13-3-70 and we make the point that apart from damages naturally resulting from the breach no other form of general damages can be contemplated”.
The appellant cannot recover exemplary damages because they are not damages in contemplation of the parties at the time of making the contact. At the time the parcel was sent through the respondent, they could not have reasonably had within their contemplation a journey to Istanbul, Turkey in pursuit of the parcel. The expenditure incurred in the journey does not appear to me to flow naturally from the contract between the parties as the trip to Turkey came from nowhere. Even if it were possible to fix the defendant/respondent with the knowledge of the trip, as the returning trip was not pleaded as pointed out earlier in this judgment, the evidence of it goes to no issue. Even if the appellant was to be awarded the value of the trip to Turkey, there exists no basis for calculating the value of the return journey as no evidence was led to prove it nor was it even pleaded.
For all I have said so far, claim No.2 fails.
Claim No.3 was for N48,020.00 being amount spent on accommodation and travelling expenses at Turkey for 2 weeks. The appellant’s grouse here is that the learned trial Judge refused the claim under this head because the appellant could not produce the receipt as evidence from the hotel. The learned trial Judge again regarded the claim as special damages. The Court below relied on the case of Federal Housing Authority v. Sommer & Ors. (1986) 1 NWLR (Pt.17) 533 which was a case in which the damages were on tort of conversion. The appellant however pleaded the hotel expenses and gave oral evidence in support. In answer to cross-examination, the appellant stated:
“…In Turkey I stayed in a hotel. I have forgotten the name of the hotel but I have their business card. In the hotel you are not given receipt but a foreigner’s passport is taken over and kept and all bills are computerised and your passport is surrendered at the end of the stay. This is their procedure in Turkey”.
It is true the defendant/respondent did not controvert the plaintiffs evidence. Despite the attitude of the respondent, the appellant still had the onus of proving his case by credible evidence. In this case no evidence except the plaintiff’s oral evidence, was adduced to at least tilt the scale in his favour. It is trite law that a civil case is decided on a preponderance of probabilities and that the onus of adducing further evidence is on the person who would fail if such evidence were not produced. See S. 136 of the Evidence Act 1990. But even then, the nature of proof in a given case must be dictated by the particular circumstances of the available evidence. Thus, in an uncontested case a plaintiff may establish his case by a minimum of proof while a contested case may be established by a balance of probabilities. What amounts to a minimum of evidence is a matter for the Court to decide on the peculiar facts and circumstances of each case. In the Court below the trial Judge found that the scanty and insufficient evidence adduced by the plaintiff at the trial did not amount to a minimum of proof which would have entitled the plaintiff to judgment against the defendant. See the case of Ogunjumo v. Ademolu (1995) 4 NWLR (Pt.389) 254; Nwabuoku v. Ottih (1961) 2 SCNLR 232, (1961) 1 All NLR 487 at 490; Odulaja v. Haddad (1973) 11 SC 357 at 354-365 (1973) 1 All NLR (pt.2) 191.
There is a plethora of decisions that where the findings of fact of a trial Judge are supported by evidence, there is no legal basis for the interference of an appellate court with such findings of fact. An appellate court will only reverse a finding of fact of a lower court if the finding is not supported by evidence. See ELF Nigeria Ltd. v. Sillo & Ors. (1994) 6 NWLR (Pt.350) 258.
Even though there may be some palatable aspects of the plaintiff’s case, nonetheless the defects are so fundamental that to overlook them would lead to injustice. On the whole, the appeal fails on the sole issue, and should be and is hereby dismissed. I affirm the judgment of the lower Court. I make no order as to costs.
Other Citations: (2000)LCN/0751(CA)