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In The
Supreme Court of
On Friday, the 15th day of June
2007
Before Their Lordships
SC.
121/2002
Between
And
Judgement of the Court
delivered
by
Dahiru
Musdapher, J.S.C.
In the Federal High Court
holden at Lagos and in Suit No
FHC/121/90, by an Amended Statement of Claim the
Plaintiffs’ Claim against the defendants were as follows:-
1.
Delivery of all 41 Reels of Kraftliner
Board 150 GSM 2050 mm directly to the plaintiffs
factory with all other consequential directions and /or either.
2.
Damages for fraud or fraudulent misrepresentation and/or negligence
and /or
3.
Payment of the sum of USD 71,446.94 plus interest at the rate of 8%
from the 22nd of August 1990 to the date of judgment and
thereafter interest at the rate of 10% until date of payment.
4.
The sum of
5.
Anticipated
loss of profit on use of goods
6.
Further and or other reliefs as the Court
may deem fit."
Pleadings were ordered,
delivered and amended. Five witnesses testified for the plaintiffs and a
number of documentary evidence were tendered. The defendants offered no
evidence but rested their case on the evidence led by the plaintiffs.
After the addresses of counsel, in his judgment delivered the 12th
day of February, 1997, the learned trial judge refused the plaintiffs'
claims on the ground that the 1st plaintiff had no locus
standi
to file the suit because it had lost its right of suit to the 2nd
plaintiff by appointing the 2nd plaintiff as its clearing agent
for clearing the lost goods. The learned trial judge also found that the 2nd
plaintiffs claims had become statute barred. He struck out the plaintiffs'
case. The plaintiffs felt unhappy with
the situation and
appealed to the Court of
Appeal on 16 grounds of appeal.
The Court of Appeal in its consideration of the appeal before it, in
its judgment delivered on the 2nd of January, 2002, held per
Aderemi JCA (as he
then was), which was concurred by Oguutadc
JCA (as he then) was and
Chukwuma-Eneh JCA (also as he then was):-
"In the final result and for
ail the reasons that I have given above, this
appeal must be allowed and is accordingly allowed. The ruling of the court
below striking out tlfc entire suit is hereby
set aside. In its place is an order entering judgement in favour of the
appellants in the following terms-
(a)
US Dollar 60,087.07 (Sixty
thousand eighty seven dollars and seven cents)
(b)
The defendants also felt
unhappy with the decision of the Court of Appeal and have now appealed to
this court on two grounds of appeal. In his brief for the defendants the
learned counsel stated that the appeal is only against the consequential
orders and not against the decision allowing
the appeal
per se,
but on what appropriate orders should have been made
having come to the decision that the ease was
struck out.
The plaintiffs on 1/2/2002
filed an Application before the Court of
Appeal praying for the variation of the judgment
entered on the 21/1/2002 in that "the
judgment sum should include interest
the amount adjudged
as proved at the rate of 8% from 22/8/1990 until
dale of judgment on the 21/1/2002 and
thereafter interest at the rate of 10% until date of payment to 1st
plaintiff," and for also loss of profits. The
defendants filed a Counter Affidavit in opposition to the motion. In its
consideration of the motion, the court
below agreed that it made a mistake in not awarding the interest and the
loss of profits as claimed and proved, but declined to vary its judgment
since at the time of the ruling on the application the appeal had already
been entered in the Supreme Court. That was why the plaintiffs also filed a
Notice of Cross-appeal on the omission of the Court of Appeal to enter the
full judgment in accordance with the amended statement of claim. Now in this
judgement, the defendants are hereinafter referred to as the appellants or
the cross-respondents as the case may be while the plaintiffs are referred
to as the respondents or the cross-appellants. I shall first deal with the
appeal as filed by the appellants.
Appellants Appeal
In their Notice of Appeal, the
appellants filed the following two grounds of appeal:-
“(1)
The Court of Appeal erred in law in awarding damages excess of the
limitation imposed by the Bill
of lading.
(i)
The Bill of Lading exhibit A specifically incorporates the Hague
Rules, which placed a limit on owners/appellants liability for
cargo claims.
(ii)
The Court of Appeal relied on the Terms of the same Bill of Lading to
come to its decision allowing the respondents' appeal.
(iii)
The Court failed to take adequately advantage of the powers allowed
it by
virtue of section 6 of the Court of Appeal Act, 1976.
(1)
The Court of Appeal erred in law and a miscarriage of justice was
occasioned when if failed low adequately
consider the defence of the appellants.
Particulars
(i)
The failure of the appellants to lead evidence should not prejudice
defences available to it
by law.
(ii)
The Court of Appeal should have in the circumstances of the decision
reached assumed the role of the trial Court to consider the legal defences
in the pleadings alone with the totality of the evidence provided.
(iii)
The appellants pleaded and raised legal defences in counsel’s address
at the trial court and which should have been considered.
Before the examination of the
issues distilled from the two grounds of appeal by both parties, it is
convenient at this stage to set out the relevant facts for the determination
of the appeal. The respondents claims against the appellants were in respect
of losses and damages caused through the failure of the appellants to
deliver the 41 reels of Kraftliner board
95m 2050 mm which the 1st appellant
carried for reward by sea for and on behalf of the respondent from the sea
port of Paranagua for delivery to the
lst respondent in Lagos, Nigeria. The
appellants failed to deliver the goods and gave no explanation why the goods
were not
delivered nor traced. The claims of the respondents against the appellants
were in detinue and or/conversion and/or
negligence and/or fraud or fraudulent misrepresentation for non delivery of
the goods. As mentioned above the claim was for losses, damages, including
losses of profits and interest. As mentioned above,
the
respondents called evidence
in proof of pleadings.
The appellants however did not lead any evidence in
proof or support of
their pleadings, but merely rested their defences on the evidence led by
the respondents.
The Court of Appeal commented
on the consequence of a party who fails to adduce evidence to substantiate
its pleadings. As a matter of fact in paragraph 2 of the Statement of
Defence, the appellants admitted paragraphs 5,9,
and 10 of the Amended Statement of Claim of Claim. The consequence was that
there were no issues joined on the liability of the appellants to the
respondents. Also as mentioned above, the appeal herein is not challenging
any aspect of the facts and evidence as admitted before the trial court but
seeks to review the decision of the Court of Appeal when the court failed to
be guided by the defences of limitation of liability available to the
appellants” (see Page 5 of the appellants brief).
Now, in his brief for the
appellants the learned counsel has identified formulated and submitted two
issues for determination of the appeal, thus:-
"1.
What in the circumstances of the facts of the case should have been
the orders/award of the Court of Appeal having held that the case of the
respondents was wrongly struck out.?
2.
On the true construction of the contract
between the parties as evidenced by Exhibit A, the Bill of lading, what is
the measure of the limit the appellants' liabilities?
In my view, having regard to
the two grounds of appeal, the complaint of the appellant is based on the
issue whether the limitation of liability clause as provided by the Hague
Rules as incorporates into the contract of carriage by the Bill of Lading
avails the appellants to limit their liability to 100 in Gold per package or
unit. The issues formulated by the appellants do not really appear to be
inconsonance with the grounds of appeal especially issue No. I. See
Captain
Amadi
vs. NNPC (2000) 10
NWLR (Pt 674) 76. Arowolo
vs. Akapo (2003) 8 NWLR
(pt 823) 451 382 Archbishop
Jatau vs. Alhaji
Ahmed & 4 others (2003)1
SCNJ 382,
Facola
vs. Union Bank (2005) 2 SCNJ (Pt 11)
62,
Dada vs Dosunmu
(2006) vol. 12 MJSC
115.
Issues for determination should be distilled from the grounds or
ground of appeal and must naturally flow from the essential complaint in the
ground or grounds of appeal. As mentioned above the fundamental complaint of
the appellants in this appeal is the failure of the court below to apply the
limitation of liability under the Hague Rules which will reduce claims of
the respondents.
There is no doubt that the
Court of Appeal did not consider the limitation of liability as provided for
under Hague Rules which
is indisputably incorporated in the instant contract by the Bill of Lading.
The only issues presented to the Court of Appeal for the
determination of the appeal by
the then appellants/respondents herein were:.-
“(i)
Whether on the facts and the circumstances
of this case, the 1st appellant could rightly be held to have
lost its right of suit to 2 appellant.
(ii)
Whether the appellants' case received fair and/or adequate
consideration of the learned trial judge.
(iii)
Whether the trial judge is justified in deciding the ease only on
technicality without making any findings on the merits.
(iv)
Whether
the learned trial judge is right in finding that the 2nd
plaintiff/applicant's action is statute barred."
For their part, the
respondents to the aforesaid appeal, the therein, raised two issues for the
determination of the appeal:-
(i)
Whether either of the appellants as plaintiffs had proved within the
relevant period for the purposes of the time limitation restrictions that
they were endorsees and party entitled to property covered by the Bill of
Lading”
(i)
Whether the trial court was right to determine the case solely on a
legal point on a consideration of the terms of the applicable law.
It can be seen plainly that
the issue as to the limitation of liability to 100 gold per package or unit
was not an issue for the determination of the matters placed before the
Court of Appeal. The issues of defence open to the appellants
were not
raised in the Court of appeal and were not accordingly decided upon. The
issue in the mail was whether trial judge,
having regard to the uncontradicted
evidence adduced by the respondents, was not in error to have struck out
their claims and if the decision was found to be erroneous, the Court of
Appeal should enter judgment for the respondents in accordance with their
claims as in the Amended Statement of Claim.
Thus the issue of the defence
of the limitation of liability was not raised in the Court of Appeal.
It is now a fresh issue.
A matter not raised at and decided by the Court of Appeal may not
ordinarily be raised in the Supreme Court for the first time without leave
unless it is such matter of fundamental importance such as the issue of
jurisdiction. Thus jurisdictional issue because of the nature of its
fundamental importance to the Competence of adjudication is one of the very
few exceptions where fresh issue may be raised without leave. Issue of
jurisdiction may be raised at any stage of the proceedings even at the
Supreme Court and even by
the court
suo
motu,
leave may not be necessary because without the judicial
competence to adjudicate everything done is a nullity. The general rule is
that fresh issues can only be raised with leave.
I have above in this judgment
recited the issues submitted to the Court of Appeal for the determination of
the appeal before it together with the prayer to enter judgment as per the
Amended Statement of claim in my view the parties
arc bound by the issues they formulated in their
briefs of argument. So too, the Court of Appeal.
The Court of Appeal had no jurisdiction to go outside the issues
legitimately submitted to it for the determination of the appeal See
Ojoh
vs. Kamalu (2005)24 NSCQR
(Vol. 24) Page 256.
There is no doubt that the
appellants in the court of trial raised the issue of limitation of liability
as provided for under the Hague Rules as an alternative defence. But it is
good law, that pleadings as stated by Tobi
JSC in
Ojoh
vs. Kamalu
supra:-
" .......
not being human beings, have no mouth to speak in Court.
And so they speak through witnesses.
If witnesses do not narrate them in court they remain moribund, if
not dead at all times and for all times, to the procedural disadvantage of
the owner, in this context the appellant”
In the instant case, the
appellants, led no shred evidence in support of their entire pleadings and I
am of the view that under the circumstances the Court of Appeal had no duty
or authority to resurrect the pleadings and to find a defence for the
appellants to limit their liability, significantly when such a defence was
even never referred to the court.
In any event, this court will
not generally allow a party on appeal to raise a question or an issue not
raised in the Court of Appeal or to grant leave to argue fresh grounds not
canvassed in the Court of Appeal except where the new grounds involve
substantial points of law substantive or procedural which need to be allowed
in order to
prevent an obvious miscarriage of justice. Even in such a case, there
must be the evidence adduced by the party relying on the new issue. See
Eze
vs. A.G. Rivers State [2001] 8
NSCQR 537.
Invariably the court will only allow a fresh issue to be argued on
appeal where the issue is relevant and no further evidence is necessary.
In any event, it is patently clear that no leave was sought and
obtained to canvas this issue on appeal and the appellants led no evidence
to support the defence.
As mentioned above, the Court
of Appeal considered the
issues submitted to it for the determination of the appeal. It
considered all the evidence led before the trial court before it reached its
decision to enter judgment. I am also of the view that the appellants having
admitted the loss of the goods without any explanation and without
disapproving that they were negligent or fraudulent, cannot avail themselves
on the defence of limitation of liability. From the facts, the appellants
were guilty of a fundamental breach of the contract and they could therefore
rely on their own wrong doing to limit their liability. In any event they
led no evidence whatsoever to support their entitlement to the defence.
When a contract of carriage is
breached in such a manner and when no explanation is offered as to how the
loss occurred and where the shipper pleads and proves fraud,
misrepresentation and negligence, the Hague Rules and
the per package limitation will not apply. See the
Pembroke (1993) Lloyds Rep 230, The
Canda(1989)2
Lloydds REP. 494.
I accordingly discountenance
the two issues formulated, by the appellants and consequently strike out the
appeal as incompetent.
The Cross-appeal
The cross-appeal is concerned
with the claim for damages for loss of profits and interest. As mentioned at
the beginning of the judgment, the Court of Appeal admitted that they were
wrong refusing to grant the claims, but declined to vary the judgment
because the appeal was already entered at this court. The cross-appellants
submit one issue for the determination of the cross-appeal
which reads:-
"Whether
the respondent/cross-appellants are entitled to interests on their claims
also whether they are entitled to loss of profits, which was proved in
evidence at the trial and not contradicted, as well as general damages."
The learned counsel for the
cross-respondents on the other hand, has submitted the following issues for
the determination of the cross-appeal.
"1.
Whether the reliefs sought by die
cross-appellants in this appeal is available under the "sliprule;"
or by a "variation" of the judgment of the Court of Appeal as stated on the
Notice of appeal. (sic)
2.
Whether the grounds and particulars supporting the cross-appellants'
Notice of Appeal should not be dismissed for relying on the decision not
appealed, the ruling, to support the complaints against the decision
appealed, the judgement.
3.
Whether the Appeal Court did not take full account and/or was not
fully mindful of the totality of the cross-appellants' claims as plaintiffs
in the trial court in the eventual decision that it reached on the appeal”
The issues formulated by the
cross-respondents as recited above do not flow from the grounds of the
cross-appeal. It is settled law that issues for determination must relate or
tie to the grounds of appeal and where such issues do not tally with the
grounds of appeal, they become incompetent and are deemed non-issues and
should be ignored and struck out. It must be emphasized that even a
respondent to an appeal is not permitted to formulate any issues not arising
from or related to the grounds of the cross- appeal and therefore a
respondent to an appeal such as this case must be careful in formulating
issues for the determination of the cross-appeal to formulate issues that
are in consonance with the grounds of the cross- appeal otherwise, the
issues not covered by grounds of appeal will be incompetent and
struck out. See
Ojegbe vs.
Ometsone (1999) 6 NWLR
(Pt 608) 59.
It is also the law that issues
for determination failing to flow from the judgement appealed against cannot
be competent See Western Steel Works
Ltd
vs. Iron
and Steel Workers
Union
of Nigeria (1987)1NWLR
(PT
49) 284 @ 304,
Onyeso
vs. Nnebedum
(1992)3 NWLR (Pt.229)
315, Olowosago vs
Adebanjo(1988) 4 NWLR
(Pt. 88) 275. Issues for determination in any appeal
must not only be related to or arise not only from the grounds of appeal
filed by the appellant or Cross-appellant but must be traced to the
judgement or decision being appealed against.
In the present case as none of
the issues formulated by the cross- respondents addressed the real issue in
this appeal to wit whether the Court appeal was right in omitting to enter
judgment in all the matters proved as found by the court and which was
contained in the Amended Statement of Claim. The issues even appear to me in
the nature of preliminary objection to the competence of the cross-appeal.
It is not permitted to file a Notice of Preliminary Objection in this
manner. I discountenance the issues, filed by the cross-respondents.
Now in its judgment, the Court
of Appeal stated as pointed/out before, that the
respondents as
plaintiffs
called evidence
in proof of all
the averments contained
in the
Amended Statement of Claims and the appellants failed or refused to
call any evidence in the defence of the claims or proof or support of the
Statement of Defence, judgment
should be entered in favour of the respondents. In their Notice of Appeal
the respondents as the appellants prayed the court to enter judgment as per
the Amended Statement of Claim. But instead of doing that the Court of
Appeal merely entered judgment on two items only without mentioning other
claims and without assigning any reasons for failure to make the award. In
the present appeal, the cross-respondents have no dispute with the evidence
adduced by the cross-appellants.
In my view, the Court of
Appeal having held that the respondents had proved all their claims, the
Court ought to have awarded the claims as pleaded and proved. I accordingly
allow the cross-appeal and vary the judgment of the Court of Appeal to
include the interest as claimed and the anticipated profit as contained in
paragraph of the Amended Statement of Claim. In the result the appeal is
struck out and the cross appeal is allowed. The respondents/cross-appellants
are entitled to costs assessed at
Judgement delivered by
Sylvester
Umaru Onu,
J.S.C
Having been privileged to read
before now the judgment of my learned brother Dahiru
Musdapher, JSC, I am
in entire agreement with his reasoning and conclusions to strike out the
main appeal and allow the Cross-Appeal. I abide by the consequential orders
contained in the leading judgment inclusive of costs awarded therein.
Judgement delivered by
Sunday Akinola
Akintan,
J.S.C
The dispute that led to the
respondent/cross appellants to commence this action arose over the
performance of a contract of carriage of goods by sea between the parties.
The appellants
were the carriers, while the respondents/cross-appellants were
the owners of the goods carried. The allegation was that the goods sent
through the appellants for delivery to the respondents/cross-appellants in
Lagos port were never delivered. The action was filed at the
Federal High Court, Lagos for the recovery of the cost of the goods lost and
interest therein. Pleadings were filed and exchanged. At the trial, the
plaintiffs led evidence in support of their pleadings. The defendants, on
the other hand, did not call any witness.
At the conclusion of the
hearing and address of counsel, the trial court refused the claim on the
ground,-inter alia that the
1st plaintiff had no locus standi,
to file the Suit and that the 2nd plaintiffs claim had become
statute barred. An appeal to the court below was allowed and judgment was
entered in favour of the plaintiffs based on the merit of their claim. The
Court below however failed to award interest on the awards made even though
claimed by the plaintiffs.
The present appeal is against the judgment of the court below.
I
had the
privilege of reading the draft of the lead judgment written by my learned
brother, Musdapher, JSC.
The facts of the case are fully set out in the said lead judgement and all
the issues raised in both the appeal and the
cross-appeal are well set out and extensively discussed. I agree with his
reasoning and conclusions as set out therein and I hereby adopt them. For
the detailed reasons given in the lead judgment, I also dismiss the appeal
and allow the cross-appeal with costs as assessed in the lead judgment.
Judgement delivered by
Mahmud Mohammed,
J.S.C
This appeal arose from the
performance of a contract of carriage of goods by sea between the parties.
The Appellants who were the carriers, carried
goods for reward by sea for and on behalf of the Respondents from the
seaport of Paranagua for delivery in Lagos
Nigeria. The goods
the subject of the contract were not delivered at
the destination and no reason whatsoever came from the carriers as to what
really happened to the goods. The Respondents action at the trial Federal
High Court, after going through full trial in which the Appellants as
Defendants virtually conceded liability for the breach of their obligation
under the contract, was all the same struck out by the learned trial judge.
The Court below however on hearing the Respondents' appeal, set aside the
decision of the trial Court and entered judgment for the
Plaintiffs/Respondents
for part of their claims.
Both parties were not happy with the judgment of the Court below
hence the Appellants' appeal and the Respondents' cross-appeal to this Court
now for consideration.
I have had the opportunity
before today of reading the Judgment of my learned brother
Musdapher JSC, in
which he ably dealt with the issues arising for determination in the appeal
and the cross-appeal. I entirely agree that the Appellants, not having
obtained the leave of the Court below or this Court in raising the fresh
issues canvassed in their grounds of appeal, their appeal is incompetent and
ought to be struck-out. As for the cross-appeal, the Appellants as
Defendants having admitted liability to the Plaintiffs/Respondents' claims,
the Court below in entering judgment for the Respondents, ought to have
granted all the reliefs claimed by them including the reliefs for loss of
profit in the goods which the Appellants refused to deliver and appropriate
interest. The Court below was therefore in error for not entering judgment
for all the reliefs claimed by the Plaintiffs/Respondents.
Accordingly, the Appellants'
appeal for being incompetent is hereby struck-out while the cross-appeal is
allowed. I abide by the
orders made in the leading judgment including the order on costs.
Judgment delivered by
Ikechi
Francis Ogbuagu,
J.S.C
This
is an appeal against the decision of the Court of Appeal, Lagos Division
(hereinafter called "the court below") delivered on 21st January,
2002 allowing the appeal of the Respondents against the decision of the
Federal High Court sitting in
Dissatisfied with the said
decision, the Appellants, have appealed to this Court in respect of
the Consequential Orders
of the court below the two (2) grounds of appeal.
Without their particulars, they read as follows:
"(a)
The Court of Appeal erred
in law in awarding damages in excess
of the limitations imposed
by the Bill of Lading.
(b)
The Court of Appeal erred in law and a miscarriage of justice was occasioned
when it failed to adequately consider the defences of the Appellants"
In other words, the
appeal, is not against the decision allowing the
appeal against the decision of the trial court.
I note that the claim of the
Respondents over various heads, was for the
breach of contract and/or negligence in respect of a contract of
affreightment
for the Carriage of goods by Sea. The trial court, struck out the suit
in respect of the 1st plaintiff, it held that it had no locus
standi to sue and could not obtain leave, to
join the 2nd Plaintiff.
In respect of the 2nd Plaintiff, it held that the action
failed as it was "statute-barred and relied on
Articles 3 -6 of the Hague Rules -
Clause 8(2) of Exhibit
A-Bill of Lading. The court below, awarded special damages, but
failed to award interest as claimed.
The Appellants have
formulated two (2) issues for determination, namely,
"1.
What in the circumstances
of the facts of the case should have been the orders/award of the Court of
Appeal having held that the case of the Respondents,
was wrongly struck out?
2.
On a true construction of a
contract, between the parties as evidenced by Exhibit A, the Bill of Lading,
what is the measure of the limit of the Appellants liabilities ".
On its part, the Respondents
formulated one (1) issue for determination, namely,
"3.03B(1)
Whether the Respondents are
entitled to interest on their claims and also whether they are entitled to
loss of profit, which was proved in evidence at the trial and not
contradicted, as well as general damages".
The Respondents,
Cross-appealed and they also filed one ground of appeal which without its
particulars, reads
follows:
“
At the hearing of the appeal
on 19th March, 2007, learned counsel for the Appellants -
Oyeleke, Esq, told
the Court that they are not denying liability, but
are challenging the consequential order of the court below
after allowing the Respondents' appeal. That the order it should have made,
was to award damages in terms of the contract of the parties. He referred to
their case No. 1 in their Additional List of Authorities (which is
not quite properly/correctly cited) it is. - See
The M.V. "Caroline
Maersk" Sister Vessel to
M.V. "Christian Maersk" & 2 ors.
v. Nokoy Investment
Ltd. (2002) 12 NWLR (Pt.782)
- (the page was/is not supplied, but it is at page 472 and it is also
reported in (2002) 6 SCNJ. 208).
Chief
Idowu (SAN), leading counsel for the Respondents told the Court that
the limitation law, does not apply under the
Hague Rules. That where the Carrier is guilty of fraud
or negligence, he cannot avail himself of the limitation liability as
contained in the Rules.
He said that he cited decided authorities on the Book Laws.
That he proved both fraud and negligence and that the
Appellants, admit liability. That the case of M. V. Caroline etc.,
is inapplicable as the facts according to him, are not the same.
He urged the court to dismiss the appeal and allow the Cross-Appeal.
Replying on point of law,
Oyeleke, Esq,
referred to their cases Nos. 1, 3 and 4 in their said Additional List
of Authorities.- i.e. Photo Production Ltd.
v. Securicor Transport Ltd.
(1980) I
All E.R.
556; George
Mitchell Ltd, v. Finney Look
Seeds (not properly cited - it is George
Mitchell (Chesterhall)Ltd,
v. Finney Lock Seeds
Ltd. (1983)2 All E.R. 737 and
The New York Star (1980).
3 All E.R.
257.(Again not properly cited - it is
Port Jackson
Stevedoring Pty Ltd v.
Salmond & Spraggon
(Australia) Pty Ltd.
The
New York Star.
He then submitted that the
Appellants are covered by Hague Rules even if the Appellants are negligent.
He further submitted that the Cross-Appeal,
is no Appeal.
I note that the court below -
per Aderemi, JCA (as
he then was), at page 344 of
the Records,
recorded that
the learned
counsel for the
Defendants/Respondents, announced
at the trial court, that he
was not calling evidence. That in consequence and by consent
of both learned counsel for the parties, written addresses, were submitted
and exchanged by them. That the consequence
in law when a
Plaintiff calls evidence
in proof of the pleadings/averments in his Statement of Claim and the
defendant fails to give evidence in support of the pleading/averments
in his/its statement of defence, is that once pleadings have been settled
and issues joined, the duty of the trial court, is to proceed to the trial
of those issues.
That if one of the parties, refuses or fails to call evidence in
support of the pleadings, the trial Judge, is duty bound, to resolve the
issues identified at the close of pleadings against the defaulting side
unless there are legal reasons dictating to the contrary.
His Lordship cited and relied on the cases of
The Gold Coasted
Ashanti Electric Power
Development Corporation Ltd
v. The Attorney-General of the
Gold Coast 3
WACA 219 and
Imana
v. Robinson (1979) 3 & 4 S.C. I.
At page 345, His Lordship,
stated inter alia, as follows:
“In the
amended Statement of Claim, the
appellant claimed damages against the defendants for breach of duty as
carriers, and/or as agents, and/or as bailees
for reward and/or in breach of contract. The particulars of damage are
embodied in their pleadings. It is the law that the governing purpose of
damages is to put the party whose rights have been violated in the same
position so far as monetary compensation can be, as if his rights have not
been violated. See Omonuwa
vs Wahab (1976) 4
S.C. 37. I have had a careful look at the items of damages
claimed on the pleadings. They are, in the main, in the nature of
special
damages. They consist
of items of loss which have to be particularized
in the
pleadings and strictly proved
by admissible and believable evidence.
See Osuji
vs Osiocha (1989) 3
NWLR (Pt.III) 623. The claim for
damages as could be gathered from the pleadings referred to
is beset with air of uncertainty as there is an
alternative claim for damages in detinue".
His
Lordship, continued thus:
"........
A Plaintiff who succeeds in his
case rooted in detinue is entitled to an order
of specific restitution of the chattel which is adjudged to have been
unlawfully detained or in default of that, its value and also damages for
its detention up to the date of judgment. See (1)
Oluwa Glass Co. Ltd vs.
Ehinlanwo (1990) 7 NWLR
(Pt.160) 4 and Ordia
vs. Piedmont Nig. (1995) 2 NWLR (Pt.379)
516. Again this specie of damages which are special in
nature must be strictly proved".
All the above, are firmly
established law. His Lordship, then proceeded to examine the evidence led
particularly, that of PWI - Julius
Oduala Ogunrinde -
The Chief Accountant of the lst
Plaintiff/Appellant who tendered
Exhibit C - a letter of undertaking on which the release of the vessel was
predicated. His Lordship, also considered the exhibits tendered.
From the evidence reviewed, he held that the following sums had been proved
as due:
After setting aside the order
of striking out of the entire suit made by the trial court, judgment was
entered in favour of the Plaintiffs/Appellants as follows:-
So, these two sets of sums of
money were awarded in favour of the 1st Plaintiff/Respondent,
Costs were also awarded in favour of the two Appellants.
It need be stressed and this
is settled that pleadings do not constitute evidence. See the cases of
Mrs. Bala
& ors v. Mrs.
Bankole (1986) 3
NWLR
(Pt.27) 141;
Masnusson
v. Koiki & 2 ors.
(1993) 12 SCNJ. 114 @
124; Broadline Enterprises
Ltd v.
Montery Maritime Corporation &
anor. (1995)10
SCNJ. @ 25: Madam Helen
Obulor & anor. v.
Oboro (2001) 4 SCNJ.
22 and recently,
Neka
B.B.B. Manufacturing Co. Ltd, v.
A.C.B. Ltd (2004)
SCNJ.
193 @ 205 just to
mention but a few.
Also firmly settled, is that
where the evidence of a Plaintiff is unchallenged and uncontroverted and
particularly, where the opposite party or side, had the opportunity to do
so, it is always open to the trial court seised
of the matter, to accept and act on such unchallenged and/or uncontroverted
evidence before it. There are too many decided authorities in respect
thereof. See Odulaia
v. Haddad (1973) 11 S.C.
357; Isaac Omoregbe v.
Lawani
(1980) 3-4
S.C, 108, 117
and recently,
Chief Durosare v. Ayorinde
(2005) 3 SCNJ. 8 @ 18;
(2005) 3 - 4 S.C. 14 and
Newbreed
Orsanisation Ltd, v. Eromosele (2006)
S.C. (Pt.1) 136 (a), 150; (2006)
2
SCNJ. 198; (2006) 5
NWLR (Pt.974) 499;
(2006) 1 JNSC (Pt.1)
1 and (2006) Vol. 140 LRCN 2064 (the
last case, also cited in paragraph 4.25 page 17 of the
Respondents’/Cross-Appellants Brief and referred only to (2006) S.C. (Pt.1)
136 @ 150
As in the instant case leading
to this appeal where the Appellants, offered no evidence, it is also
settled, that in such circumstances, the evidence before the court,
obviously, goes one way with no other set of facts, or evidence weighing
against it. In
other words, there is nothing in such a situation, to put on the other side
of the proverbial or imaginary scale of balance as against the evidence
given by or on behalf of the Plaintiff.
Also settled, is that in such a case or circumstances, the onus of
proof, is naturally discharged by a
minimal of proof.
Again, there are too many decided authorities in this regard. See
Nwaboku v,
Ottih
(1961) I NWLR. 487 @
490; Balogun
v. UBA Ltd (1992)6 ANLR
(Pt.247) 336 @, 354; (1992)
7 SCNJ.
61
and
Odunsi
vs. Bamgbala & 3 ors.
(1995) I NWLR
(Pt.374) 641; (1995) J
SCNJ.
275 and many
others.
On the authorities, 1
hold that the court below, was right in allowing
the appeal of the Respondents and setting aside the said orders of the trial
court.
It seems to me and I so hold,
that from the evidence and inhibits before the trial court, the court below,
made the said award only on special damages and there was no award by it on
general damages as to loss of profits etc and interest as claimed by the
Respondents in the Amended Statement of Claim and proved in evidence. It
therefore, with respect, erred in not making the said awards in respect
thereof. In the circumstance, while I hold that the Appellants' appeal, lack
substance and in fact incompetent,
the Cross-Appeal is meritorious and succeeds. I allow it.
In conclusion, I had the
advantage and privilege to read before now, the lead Judgment of my learned
brother, Musdapher, JSC
and I agree with his reasoning and conclusion. 1 too,
strike out the
main appeal and allow the Cross-Appeal.
I abide by all the
consequential orders in the lead Judgment including costs.
Counsel
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