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A.B.C (TRANSPORT COMPANY) LIMITED v. MISS BUNMI OMOTOYE (2019) - SC


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icon CASE SUMMARY OF:

A.B.C (TRANSPORT COMPANY) LIMITED v. MISS BUNMI OMOTOYE (2019) - SC

by PaulPipAr
icon TAG(S)

- Negligence;
- Exemption clause;
- Terms of Contract;
- Contract;
icon PARTIES

APPELLANT
A.B.C (TRANSPORT COMPANY) LIMITED

v.

RESPONDENT
MISS BUNMI OMOTOYE
icon CITATION

(2019) LPELR-47829(SC);
icon COURT

Supreme Court
icon LEAD JUDGEMENT DELIVERED BY:

UWANI MUSA ABBA AJI, J.S.C.
icon LAWYERS WHO ADVOCATED

* FOR THE APPELLANT

* FOR THE RESPONDENT

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icon FACT (as relating to the issues)

It is the fact that the Respondent (Plaintiff) on 28/7/2000 travelled in one of the Appellant's buses from Lagos to Port Harcourt with some goods she was to deliver to a customer but that the goods got damaged because of the negligence of the Appellant, who placed them in a place where heat from the engine of the bus damaged them. The Respondent then instituted an action at the High Court claiming thus:

(a) A declaration that the defendant was negligent in handling the goods belonging to the plaintiff which the defendant was to deliver from Lagos to Port Harcourt to the plaintiff covered by receipt on 27/7/2000, which caused damages to the goods;
(b) An order of the Court compelling the defendant to pay to the plaintiff the following: i. The sum of N117,000 (One Hundred and Seventeen Thousand Naira) being the value of the goods damaged. ii. The sum of 4,700.00 (Four Thousand Seven Hundred Naira) being the cost of transport to and from Port Harcourt to Lagos. iii. The sum of N1,000,000.00 (One Million Naira only) being damages for loss of goodwill, loss of turnover on the goods and loss of profit. TOTAL: N1,121,700.00.

After the close of the trial, the trial Court dismissed the Respondent's suit in its judgment contained at pages 62-69 of the record. Dissatisfied, she appealed to the lower Court, which allowed her appeal and granted her reliefs save relief (b) of Sub-paragraph (iii) of the amended statement of claim.

Dissatisfied, the Appellant appealed to this Court.
icon ISSUE(S)

1. Whether the Court of Appeal was justified in holding that the Respondent proved her case against the Appellant.

2. Whether the Court of Appeal was justified in holding that the High Court denied the Respondent of a fair hearing in its findings on the exemption clause contained in Exhibits A and B respectively.
icon HOLDING & RATIO DECIDENDI

[APPEAL: DISMISSED WITH N500,000 COST AGAINST THE APPELLANT]

1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT IN FAVOUR OF THE RESPONDENT.

RATIO:
i. The non-production of the damaged goods cannot be fatal or even affect the case of the Respondent. The lower Court was right in its finding on this issue. Moreover, civil cases are to be proved on balance of probality or preponderance of evidence by admissible evidence. The damaged goods were proved abundantly by the admission of DW1 of the damage and by Exhibits D1 and D3 being the photographs of the damaged goods attached to Exhibit D. The Court below carried out a painstaking and sagely evaluation of both the documentary and oral evidence before it in reaching its decision, especially, its' sound and erudite appreciation of the facts and evidence from pages 132-138 of the record.

2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT IN FAVOUR OF THE RESPONDENT.
RATIO:

i. It must be noted that it is because of the nature and class of goods the Respondent wanted to be carried and delivered to Port Harcourt and because of their safety and protection that she entered into a distinct contract with the Appellant evidenced by Exhibit C, separately paid for. There was or no exemption clause contained on Exhibit C for the exculpation of the Appellant from liability to damage since it owed duty of care to the Respondent for the safety of the goods. The trial Court was manifestly in error to import the exclusion/exemption clause in Exhibits A & B into Exhibit C, being a separate category 15 of contract. To read a meaning different from that contemplated by the parties in this case is what the lower Court considered to be denial of fair hearing.
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icon NOTABLE DICTA

* PROCEDURAL
It is the general practice since the introduction of brief writing that there may be need for an Appellant to file a Reply Brief when an issue of law or argument is raised in the Respondent's Brief, not necessarily being a mere repetition of what the Appellant's Brief contained. - Uwani Musa, JSC. ABC v. BUNMI (2019)

* SUBSTANTIVE
It is trite that the burden of proof of negligence falls on the plaintiff who alleges negligence. This is because negligence is a question of fact, and it is the duty of he who asserts to prove it. Failure to prove particulars of negligence pleaded will be fatal to the case of the plaintiff. - Uwani Musa, JSC. ABC v. BUNMI (2019)

It is the law therefore that in an action for negligence, the plaintiff must prove the following essential elements: (a) The existence of a duty of care owed to the plaintiff by the defendant. (b) Breach of that duty of care by the defendant. (c) Damages suffered by the plaintiff as a result of the breach by the defendant of that duty of care. - Uwani Musa, JSC. ABC v. BUNMI (2019)

Parties are bound by the terms of their contract and if any dispute should arise with respect to the contract, the terms in any documents which constitute the contract, are invariably the guide to its interpretation. - Uwani Musa, JSC. ABC v. BUNMI (2019)

To read a meaning different from that contemplated by the parties in this case is what the lower Court considered to be denial of fair hearing. - Uwani Musa, JSC. ABC v. BUNMI (2019)

An appellate Court will only do so where a party visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. - Uwani Musa, JSC. ABC v. BUNMI (2019)
The end of this brief.


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