PANALPINA WORLD TRANSPORT (NIGERIA) LIMITED (APPELLANT)
v.
N. T. WARIBOKO (RESPONDENT)
(1975) All N.L.R. 24
Division: Supreme Court
Date of Judgment: 14th February, 1975
Case Number:
Before: Elias, C.J.N. Sowemimo and Ibekwe, JJ.S.C.
APPEAL from the High Court, Port Harcourt.
The plaintiff commenced proceedings in the Port Harcourt High Court against the defendants for recovery of £1,053-8s-7d being the value of four packages of personal effects which defendants agreed to carry from Zaria to Port Harcourt, but which were negligently lost by defendants and for the sum of £21 12/- the cost of the carriage of the packages for a consideration which has totally failed.
The trial Court holding defendants negligent found for (a) £21 12/- for cost of transportation and (b) £750 for the missing goods.
On appeal to the Supreme Court on the ground that plaintiff did not prove that defendants were negligent.
HELD:
(1) that the onus of proving that they had not been negligent rested on the appellants.
(2) that whenever goods belonging to one person are unconditionally entrusted to the care of another for safe keeping or for other purposes, whether gratuitously or for reward, on the clear understanding that the goods shall ultimately be returned to the owner, the failure to do so raises a presumption of negligence against the offending party.
(3) that in order to rebut the presumption, the party concerned should show to the court's satisfaction that the loss occurred not through their fault, carelessness or recklessness, but despite all reasonable precaution taken by them in order to ensure the safety of the goods entrusted to them.
(4) that as appellants had not accounted for the loss of the goods, nor had they shown to the court's satisfaction that they were not negligent, the learned trial Judge's decision must be upheld.
Appeal dismissed.
Cases referred to:
Chief D.O. Ogugua v. Armels Transport Ltd. (1974) 3 S.C. 139 at 144
APPEAL from High Court, Port Harcourt.
Suit No. S.C. 254/74
Mr A. A. Odunsi for the Appellants.
Chief B. Gabriel Whyte for the Respondent.
COKER, J.S.C. (Delivering the Judgment of the court):-This is an appeal from the decision of the Port Harcourt High Court delivered by Wai-Ogosu, J., on 3rd November, 1972 in which he awarded judgment in favour of the plaintiff. The particulars of claim are as follows:-
"The plaintiff's claim as against the defendants is for the recovery of a total sum of £1,053.8.7d (one thousand and fifty-three pounds eight shillings and seven pence) being the value of 4 Packages of Personal Effects which the defendants at Port Harcourt on or about the 23rd of December, 1969, agreed to carry at Zaria and deliver to the plaintiff at Port Harcourt, but which were negligently lost by the "defendants, and the sum of £21. 12/- being the cost of carriage of the said Packages paid by the plaintiff to the defendants for a consideration which has totally failed."
Pleadings were ordered and filed. In paragraphs 3, 4, 5, 7 and 8 the plaintiff averred as follows:-
"3. On or about the 23rd of December, 1969 plaintiff by a letter dated the 23rd of December, 1969, requested the defendants at Port Harcourt to transport to Port Harcourt the following personal effects,
1 Sewing foot machine
1 Large trunk box
13 burner falks kerosene
1 Electric table fan
1 Large white basin containing various articles.
This letter was copied to the Ag. Head Postmaster III, Zaria District, who was requested to hand over these personal effects to the defendants. This letter will be founded upon at the trial.
4. On or about the 27th February, 1970, the defendants took delivery of the following personal effects at Zaria.
1. one New Sewing Foot Machine
2. one Large Trunk Box (locked with undeclared contents)
3. one three burner falks kerosene cooker
4. one Large white basin containing 9 pairs of Lady's shoes and 5 other various articles, for delivery to the plaintiff at Port Harcourt.
5. The plaintiff on the 7th of February, 1970, paid a total sum of £21.12/- to the defendants at Port Harcourt, to cover the cost of transportation and packing of 1 crate 20 cu. ft.
7. The plaintiff requested the defendants to deliver the said 4 packages as agreed but the defendants have neglected or refused to do so.
8. The defendants in a letter dated the 14th of August, 1970, with reference PJU/GCO/800246 informed the plaintiff that the 4 packages of personal effects could not be traced and requested the plaintiff to inform them of the cost of the personal effects including whatever expenses the plaintiff has incurred."
Paragraph 7 of the statement of Claim was denied, but paragraphs 3, 4, 5 and 8 were admitted by the defendants whose main defence was that they in fact collected the plaintiff's goods as was agreed upon, and that they first arranged with the Nigerian Ports Authority who carried the said goods to Apapa where, later on, the goods were loaded onto the ship "River Ethiope" belonging to the Nigerian National Shipping Line on or about 13th May, 1970, for onward transmission to Port Harcourt. It is also admitted by the defendants that up till the time of this action, they had not delivered the said goods to the plaintiff. It is therefore clear that, the facts of this case are not very much in dispute.
At the conclusion of the trial, the learned trial Judge reserved his judgment. In a well-considered judgment, the learned trial Judge summarised the evidence led on either side and went meticulously into the issue of liability as between the parties.
After considering the defence put forward by the defendants, the learned trial Judge observed as follows:-
"I am in agreement with Counsel for the plaintiff that from the evidence before the court defendants here have not told the court what proper arrangements they made for the safety of the goods during transit."
In conclusion, the learned trial Judge entered the following judgment against the defendants:-
"On all the facts and the law considered as can be seen above, I am satisfied that the plaintiff has made a case of damage for negligence against the defendants. I am convinced that the defendants did not exercise the degree of care required of them as a reputable firm. I therefore award damage against them as follows: (a) £21.12/- for cost of transportation paid by plaintiff to them and (b) £750 (seven hundred and fifty pounds) for the missing goods."
It is from this decision of the learned trial Judge that the defendants have brought this appeal to the Supreme Court on the following grounds:-
"(1) The learned trial Judge erred in law in holding that the packages were negligently lost when in fact no particular act of negligence was pleaded or alleged.
(2) The learned trial Judge misdirected himself in law in awarding £750 as general damages when in fact the amount claimed is on specific items and such items ought to have been strictly proved as special damages."
Under ground 1, Mr A.A. Odunsi, learned Counsel for the appellants criticised the judgment of the learned trial Judge on the ground that no particular act of negligence was pleaded or alleged by the plaintiff in her statement of claim. In our view, the contention of the learned Counsel in this regard is without justification. In the first place, the appellants, who were the defendants in the court below, led no evidence whatsoever as to what reasonable step, if any, which they had taken so as to protect the goods entrusted to their care. They had not accounted for the loss of the goods, nor had they shown to the satisfaction of the court that they were not negligent. Moreover, the appellants in the court below did not seek to bring in either the Ports Authority or the Nigerian National Shipping Line as a third party to the proceedings, in view of the peculiar nature of the defence that was set up by them. We consider that the mere fact that the defendants/appellants failed to deliver to the plaintiff the goods which they had undertaken to transport to Port Harcourt is prima facie evidence of negligence; and as the onus of disproving negligence rested on them, we cannot but agree with the learned trial Judge that that onus was never discharged.
In the case of Chief D.O. Ogugua v. Armels Transport Limited (1974) 3 S. D. 139 at 144 where this Court considered the issue as to the burden of proof of negligence in cases of bailment, the law was stated as follows:-
"Dealing with the first point first, we think that there was no need on the part of the plaintiff in this case to plead negligence specifically. Once it is admitted by the parties (as was the case here) that the car was delivered to the defendants and that they failed to return it to the owner, we think that the onus was on them to deliver the car to the plaintiff or satisfy the court that its loss was not due to their carelessness.
It is settled law that, in bailment, the onus of proving that there is no negligence is on the bailee. [See Phipson on evidence (eleventh edition) page 93, para. 94.] In other words, provided that the claim is properly worded, the onus of proof is always on the bailee to show that the loss of, or damage to, the goods entrusted to him occurred without negligence or default on his part."
We think that whenever goods belonging to one person are unconditionally entrusted to the care of another person for safe keeping or for other purposes, whether gratuitously or for reward, on the clear understanding that the goods in question shall ultimately be returned or delivered to the owner, that failure to return or deliver the said goods as agreed upon raises a presumption of negligence against the defaulting party. We take the view that in order to rebut the presumption, the party concerned should show to the satisfaction of the court that the loss occurred not through their fault, carelessness or recklessness, but in spite of all reasonable precaution taken by them in order to ensure the safety of the goods in question. To hold otherwise, will, in our view, work hardship on the owner of such goods. We think that it is good sense that the court should presume that the loss of such goods and the circumstances surrounding it, would be peculiarly within the knowledge at the party into whose custody they were entrusted. At the very best, the owner of such goods can only hazard a guess, but it has been rightly said that 'the court of justice does not go by speculation."
We also of the opinion that ground 2 of the Grounds of Appeal lacks substance. In any case, the complaint made under this particular ground could not be sustained in view of the fact that the lost goods together with their prices, were indeed fully itemised in the Statement of Claim.
On the whole, we agree with the said judgment of Wai-Ogosu, J., in Suit No. PHC/1/1972 and we hereby affirm it. In the circumstances, the appeal fails and it is hereby dismissed. The appellants will pay to the respondent the costs of this appeal fixed at N135.00