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On whom lies the burden of proving negligence?


Scale of Justice


In the Supreme Court of Nigeria
Suit No: SC.177/2011

Before Their Lordships







This appeal is against the judgment of the Court of Appeal, Port Harcourt Division, delivered on June 18, 2009, which set aside the judgment of the High Court of Rivers State, Port Harcourt that dismissed the claims of the Respondent.


The Respondent, a business woman based in Port Harcourt obtained a requisition from a customer in Port Harcourt to supply some specific children’s items which she had to source for in Lagos. She then travelled to Lagos on July 25, 2000 by the Appellant’s night bus. She purchased the items and returned to Port Harcourt on July 28, 200 using the same transport company. She travelled with the goods, which were placed in the luggage compartment of the bus. At Owerri, some passengers disembarked and one of them complained that the heat in one of the luggage compartments affected her goods. The respondent’s goods had to be taken down to allow the passengers disembarking at Owerri to claim their luggages before they were put back for the journey to Port Harcourt. On reaching Port Harcourt she discovered that the heat from the luggage compartment had burned her goods. Because of the complaint the passenger who had disembarked at Owerri had made the respondent asked the bus attendant whether her goods were returned to safe compartment where the goods were kept from Lagos and he answered in the affirmative. Unfortunately this did not turn out to be so since the heat burned her goods. She then took out a Writ of Summons against the Appellant alleging that the appellant owed her a duty of care but due to its negligence the goods were burnt and the customer who had made the requisition rejected them. She claimed as follows:

(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 July 27, 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 ₦117,000 being the value of the goods damaged (ii) The sum of ₦4,700 being the cost of transport to and from Port Harcourt to Lagos. (iii) The sum of ₦1,000,000 being damages for loss of goodwill, loss of turnover on the goods and loss of profit.

After the close of the trial, the trial Court dismissed the respondent’s suit in its judgment. Dissatisfied, the respondent appealed to the Court of Appeal, which allowed the appeal and granted reliefs of the respondent save relief (b) of Sub-paragraph (iii) of the amended statement of claim. Dissatisfied, the appellant appealed to the Supreme Court.

The Apex Court determined the appeal on the following issues: 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.

On issue 1, the submission of the learned counsel to the appellant is that there was no justification to hold that the respondent proved her case against the appellant. That the parties having joined issue on negligence, the burden is on the respondent to prove the alleged damage as decided in IROAGBARA V. UFOMADU (2009) ALL FWLR (PT.481) AT 352. That since the evidence of the respondent on the alleged cause of damage was at variance, it should not be relied on. Furthermore, that the respondent did not prove delivery of the damaged goods to the appellant in the manner laid down in NLEWEDIM V. UDUMA (1995) 6 NWLR (PT.402) AT 394. He stated also that the Court of Appeal was in error to hold that the non-production of the damaged goods was not fatal to the respondent’s claim. That the lower Court was wrong to rely on Exhibit G which was not signed since an unsigned document is worthless as decided in AG, ABIA STATE V. AGHARANYA (1999) 6 NWLR (PT.607) AT 371. Again, that negligence is a question of fact provable by pleaded particulars and evidence.

On issue 2, learned counsel to the Appellant submitted that the Court of Appeal was not justified in holding that the trial Court denied the respondent fair hearing in its findings on the exemption clause contained in Exhibits A and B respectively, the tickets for the respondent’s journey to and fro respectively. That by the exemption clause “Luggage are carried without inspection and at owner’s risk”, and the trial Court rightly interpreted the documents tendered, which is the duty of the Court to do. He cited in support INYANG V. REG. TRUSTEES OF THE FIRST CENTURY GOSPEL CHURCH (2006) ALL FWLR (PT.314) AT 295. He concluded that it is not the business of the appellate Court to substitute its view for that of the trial Court as held in ONYEJEKWE V. ONYEJEKWE (1999) 3 NWLR (PT.596) AT 500-501.

The learned Counsel to the respondent on issue 1 submitted that where the trial Court has failed in the evaluation of evidence, the appellate Court can do that especially where documentary evidence is involved. He relied on DUMEZ NIG. LTD V. NWAKHOBA (2009) ALL FWLR (PT.461) AT 857-358. He submitted that by the pleading, the appellant admitted the fact of damage but denied responsibility for the damage. Thus, when the trial Court is in error of appraisal of evidence, the appellate Court can correct it as decided in OBINECHE W. AKUSOBI (2010) ALL FWLR (PT. 533) AT 1855-1866.

The respondent’s learned counsel submitted that issue 2 formulated by the appellant did not arise from any decision of the Court of Appeal and it is trite that the Court only reviews a decision taken by the Court of Appeal in its judgment as decided in XTOUDOS SERVICES NIG, LTD V. TAISEI (WA) LTD (2006) ALL FWLR (PT. 333) AT 1650. On the exemption clause in Exhibits A and B respectively, it was argued that they do not relate to carriage of the goods, which is the subject of the suit. That the carriage of the goods damaged, being the subject of this suit is covered by a separate contract evidenced by Exhibit C.

Considering issue 1, the Court stated that indeed, lack of proof of negligence in a matter as the instant appeal can be fatal to the case of the Respondent, as it is trite that the burden of proof of negligence falls on the plaintiff who alleges negligence and failure to prove particulars of negligence pleaded will be fatal to the case of the plaintiff. See ABUBAKAR & ANOR V. JOSEPH & ANOR (2008) LPELR-48 (SC). The Court however, noted that in the evidence given by the Respondent, she chronicled how she embarked on her journey and the ugly experience she had. She complained of how her goods were damaged because it was wrongly placed in a heat and faulty chamber of the bus and so on.

She in fact complained initially to the bus conductor, an agent of the appellant, to be careful with her goods but he shouted at her. She revealed how she lodged her complaint to the manager who organized for a meeting with her and how her letter of complaint written to the MD was unattended to, hence the suit. The Court further stated that in order to establish negligence, one pertinent question arises for consideration and it is whether as between the alleged wrong doer and the person who has suffered damage, there is a sufficient relationship of proximity or neighborhood such that in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter. The Court held that the Court of Appeal was justified to hold that the respondent preponderantly proved her case against the appellant. This issue was therefore resolved against the appellant.

The Court started the consideration of this issue by stating the exemption clause referred to which provides that “Luggage are carried without inspection and at owner’s risk”. This clause is inscribed on the ticket of the Appellant for all its passengers. In the instant case, as observed by the Court, the ticket in which this was written is Exhibit A, which the respondent used to transport herself from Port Harcourt to Lagos. Exhibit B is the ticket from Lagos to Port Harcourt. Thus, this exemption clause applies to the transport tickets (Exhibits A & B) used by the Respondent. It was based on this that the trial Court held that the respondent was bound by it. The Court stated this unfortunately is not the case of the respondent as it must be noted that Exhibits A & B apply to transport ticket of passengers with their luggage. In the instant case however, the respondent entered into a separate contract for the carriage and delivery of her goods/luggage by the appellant evidenced vide Exhibit C from Lagos to Port Harcourt. Exhibit C was the receipt for the carriage of the respondent’s goods from Lagos to Port Harcourt separately entered between the parties. The Court stated the trite principle of law that 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. See Per MOHAMMED, J.S.C in ONYKWELU V. ELF PETROLEUM (NIG) LTD. (2009) LPELR-2733 (SC).


The Court 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 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 Court held that the trial Court was manifestly in error to import the exclusion/exemption clause in Exhibits A & B into Exhibit C, being a separate category of contract and this was what the Court of Appeal considered to be denial of fair hearing. This issue was also resolved against the Appellant.

In the final analysis, the Supreme Court dismissed the appeal with cost of ₦500,000 against the appellant.
Appearances: Emeka O Nwagwu with VN Onyeonoro (Mrs) – For Appellant

Benjamin Obiora – For Respondents

Compiled by LawPavilion


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