CHUNG V PLATEAU EXPRESS SERVICES LTD

CHUNG V PLATEAU EXPRESS SERVICES LTD


IN THE COURT OF APPEAL
IN THE JOS JUDICIAL DIVISION
HOLDEN AT JOS

ON THURSDAY, 7TH JUNE, 2018


Suit No: CA/J/176/2016

CITATION:

Before Their Lordships:

ADAMU JAURO, JCA

UCHECHUKWU ONYEMENAM, JCA

HABEEB ADEWALE OLUMUYIWA ABIRU, JCA


BETWEEN

MR. BOTSON JOEL CHUNG
(APPELLANT)

AND

PLATEAU EXPRESS SERVICES LTD
(RESPONDENT)


PRONOUNCEMENT


A. ACTION
1. Issues raised in Pleadings – Issues of facts parties are not allowed to raise in pleadings

Counsel contended that “a keeper of goods should be in a position to explain damages done to the goods, which is expected to be returned in the condition it was when it was kept in its custody or liable for damages done to it.” This principle canvassed by Counsel operates in a contract of bailment and is akin to the doctrine of res ipsa loquitor in a case of negligence. The case of the Appellant was not based on bailment or negligence; it was based on a breach of lease of car agreement. It is settled law that parties are not allowed to raise issues of facts in the address of their Counsel which were not raised or agitated on the pleadings as address of Counsel does not substitute for pleadings – Buraimoh Vs Bamgbose (1989) All NLR 669, Okwejiminor Vs Gbakeji (2008) 5 NWLR (Pt 1079) 172, Ayanwale Vs Odusami (2011) LPELR-8143 (SC). Per ABIRU, JCA. read in context

B. CONTRACT
2. Breach of Contract – What breach of contract connotes and what must be proven to succeed in an action for breach of contract

A breach of contract connotes that the party in breach had acted contrary to the terms of the contract either by non-performance, or by performing the contract not in accordance with its terms or by wrongful repudiation of the contract. A party who had performed the contract in consonance with its terms cannot be said to have been in breach thereof -Pan Bisbilder Nigeria Ltd Vs First Bank of Nigeria PIc (2000) 1 NWLR (Pt 642) 684, Kemtas Nigeria Ltd Vs Fab Anieh Nigeria Ltd (2007) All FWLR (Pt 384) 320, Obajinmi Vs Adedeji (2008) 3 NWLR (Pt 1073) 1.

Thus, to succeed in an action for breach of contract, a claimant must plead facts showing the existence and subsistence of a valid contract as well as its express and implied terms and what or which of the terms was breached and in what manner, i.e. the particulars of breach. Per ABIRU, Jread in context

C. DAMAGES
3. Award of Damages – Forms of damages and when claim for damages can fail

The Appellant claimed for N200,000.00 special damages, N300,000.00 monthly as loss of earning and the sum of N2,000,000.00k (Two Million Naira) only as general and exemplary damages. General damages means such damages as law itself implies or presumed to have accrued from the wrong complained of, for the reason that they are its immediate, direct and proximate consequence or such as necessarily result from the injury, or such as did in fact result from the wrong, directly and proximately and without reference to the special character, condition or circumstances of the plaintiff. See Shell Petroleum Development Company (Nig) Ltd. V. High Chief G.B.A. Tiebo VII & 4 Ors. (1996)4 NWLR (Pt. 445) Pg.657. While exemplary damages are damages which are in nature awarded with a possible secondary object of punishing the defendant for his conduct in inflicting harm on the plaintiff.

In the instant case, the Court cannot grant the damages claimed and the monthly sum of N300,000.00 for loss of earning merely because the plaintiff asked for it and more particularly the Appellant as plaintiff having failed to establish the injury cause to him by the Respondent. See UTB V. Ozoemena (2007) ALL FWLR (Pt. 383) 1014 at 1044. Flowing from the foregoing, the Appellant’s claim of loss of earning, special and general/exemplary damages must fail. Per JAURO, JCA. read in context

D. EVIDENCE
4. Burden of Proof – How burden of proof lies on who asserts

A good starting point for the resolution of this issue is from Section 135(1) of the Evidence Act, which provides thus:

“135(1) whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.”

The provision of this Section is very clear and unambiguous and same is also self-explanatory. No aid is required for the interpretation of the said provision. Needless to say, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence is produced on either side, regard being had to any presumption that may arise in the pleadings. See Section 137(1) of the Evidence Act. In the instant case, the plaintiff/Appellant asserted the existence of lease agreement in relation to his vehicle between him and the Respondent. The plaintiff contended that the Respondent vandalized his vehicle and removed various parts of it while the vehicle was in their custody, the defendant/Respondent denied the Appellant’s assertion. By virtue of the provision of Section 135(1) & (2) and 136 of the Evidence Act, the plaintiff/Appellant that asserted the existence of the lease agreement and the vandalization of his vehicle by the Respondent must prove same as failure to do so will qualify his case for dismissal. The law is settled that where a party denies the existence of a fact as in the instant case, the party alleging the existence of the fact must prove it by credible evidence that the facts exists.

In the instant case, the onus of proof was on the Appellant to prove the existence of the lease agreement between them and the vandalization of his vehicle by the Respondent which rendered it liable for all the damages done to the vehicle. See Uchendu V. Ogboni (1999)5 NWLR (Pt. 603)337; Okeke V. Agbodike (1999) 14 NWLR (638) 283; Jalo V. Mohammed (2005) ALL FWLR (Pt. 278) 56; Iordye V. Ihyambe (2000) 15 NWLR (692) 672; Buhari V. INEC (2008)18 NWLR (Pt. 1120) 246. Per JAURO, JCA. read in context

5. Hearsay Evidence – What constitutes hearsay evidence

In proving the allegations, the Appellant led three witnesses. On the evidence PW1 and PW3 on the parts being removed from the Appellant’s vehicle, learned trial judge found their evidence as hearsay evidence and therefore inadmissible. Traditionally, testimony that is given by a witness who related not what he or she knows personally, but what others have said, which evidence is dependent on the credibility of someone other than the witness, is called hearsay. Under the rules of evidence, such evidence is generally inadmissible. Indeed, a piece of evidence is hearsay, if it is testimony of the contents of a statement made by a person who himself is not called to testify. See Ifegwu V. UBA PLC. (2011) 16 NWLR (Pt. 1274) Pg. 555 at 588 paras D-G, Ojo V. Gharoro (2006)10 NWLR (Pt. 987)173. The evidence in chief of PW1 was to the effect that the workshop manager of the defendant, one Mr. Danjuma Jika admitted before him that he (Danjuma Jika) had instructed the workshop to remove the items to fix one of their vehicles that had a problem. See page 47 of the record of appeal. Under cross-examination PW1 maintained that it is not true that the plaintiff informed him that one Danjuma Jika said it was the defendant that removed some parts in the vehicle. It is clear from the evidence of PW1 is that what he had testified on is as to what the workshop manager stated. His evidence is therefore hearsay on the admission, of the workshop manager of the Respondent, particularly if it is aimed at establishing the truth of what the workshop manager stated. PW3 in his evidence in chief which was to the effect that the plaintiff/Appellant told him that he had employed a new driver for the vehicle only for him to discover that some parts had been removed. See page 49 of the record of appeal. Under cross-examination PW3 testified that it was the plaintiff who told him that the defendant will fix the vehicle for him. See page 138 of the record of appeal. Based on the authority of IFEGWU cited earlier, it is crystal clear that the evidence of PW3 is hearsay evidence and therefore inadmissible evidence. Per JAURO, JCA. read in context

6. Admission – How admitted facts need not be proven

…It is also clear as earlier stated that the evidence of PW1 is also hearsay evidence, the question that comes to mind is whether the Appellant could be said to have proved his case by the admission of the Respondent. It is generally the law, that what is admitted need not be proved. See Ugochukwu V. Co.Op. & Comm. Bank Ltd. (1996)6 NWLR (Pt. 456)524, OLAGUNYI V. OYENIRAN (1996)6 (Pt. 453)127. In Din V. African Newspapers Ltd. (Pt.1990)3 NWLR (Pt. 139) 392 at 405 the Supreme Court held for proof of facts admitted, thus:

“No fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any ruled or pleading in force at the time they are deemed to have admitted to be proved otherwise than by such admission.”

In the instant case, the defendant/Respondent denied the Appellant’s assertion on the vandalized vehicle and items removed from the said vehicle. In either its pleading or any document in writing, the Respondent never admitted the Appellant’s claim. The Respondent even presented their workshop manager (Danjuma Jika) who denied having admitted for the damage done to the Appellant’s vehicle. He testified as DW2 wherein he stated under examination-in-chief “that on no occasion did I instruct anybody at the workshop to remove the items in the plaintiff’s vehicle to fix any other vehicle.” Under cross-examination he testified that he was not present when the plaintiff came with one Dauda (PW1) to inspect his vehicle parked in the defendant’s premises. See page 143 of the record of appeal. In the case of Pas (Nig) Ltd. V. N.N.S. CO. LTD. (1990)6 NWLR (Pt. 159)764 at 770 the Court, held thus:

“A plaintiff who relies for the proof of a substantial part of his case upon admission in the defence must show that the matters in question are clearly pleaded as clearly admitted, he is not entitled to ask the Court to read meaning into his pleading which upon fair construction do not clearly appear in order to fix the defendant with an admission.”

See also Ash & Anor. V. Hutchinson & Co. Publishers Ltd. & Ors. (1936)1 CH.D. 489 at 502.

In the instant case the plaintiff could not establish where the defendant clearly admitted by pleading, that it is responsible for the items removed from the Appellant’s vehicle. The plaintiff therefore must succeed on the strength of his case by producing credible evidence to prove his assertion, failure of the plaintiff to do so, will lead to his case being dismissed. On the question of items removed from his vehicle, the plaintiff/Appellant did not support his case with credible and uncontroverted evidence. The Appellant as plaintiff ought to have pleaded Res ipse loquitor and adduce credible evidence in support of negligence, which was not done in this case. By preponderance of evidence the Appellant has failed to establish that the Respondent vandalized the vehicle nor was it responsible for the vehicle being grounded. Per JAURO, JCA. read in context

7. Burden of Proof and Standard of Proof – Burden and standard of proof in civil cases; How same is discharged

It is settled law that civil suits are determined on preponderance of evidence and balance of probabilities and he who asserts must prove in order to succeed in his claim – Imana Vs Robinson (1979) 3-4 SC1, Elias Vs Omo-Bare (1982) 5 SC 25, Iseogbekun Vs Adelakun (2013) 2 NWLR (Pt 1337) 140. A claimant must succeed on the strength of his case and not rely on the weakness of the defence and the absence of a statement of defence or evidence led by the defendant does not exonerate the responsibility on a claim to prove his claim – Harka Air Services Ltd Vs Keazor (2006) 1 NWLR (Pt 960) 160 and Ogunyade Vs Osunkeye (2007) 15 NWLR (Pt 1057) 218.

It follows therefore that a claimant has the burden of establishing his claim upon relevant and credible evidence that is conclusive and that commands such probability that is in keeping with the surrounding circumstances of the case in hand – Jiaza Vs Bamgbose (1999) 7 NWLR (Pt 610) 182, Mbani Vs Bosi (2006) 11 NWLR (Pt 991) 400, Egwa Vs Egwa (2007) 1 NWLR (Pt 1014) 71. For a piece of evidence to be accepted as cogent and credible, it must be strong and uncontroverted by the opposing party -Eyo Vs Onuoha 2011) 11 NWLR (Pt 1257) 1. Credible evidence means evidence worthy of belief and that for evidence to be worthy of belief and credit, it must be credible in itself in the sense that it should be natural, reasonable and probable in view of the transaction which it describes or to which it relates as to make it easy to believe -Agbi Vs Ogbeh (2006) 11 WLR (Pt 990) 65, Ogboru Vs Ibori (2006) 17 NWLR (Pt 1009) 542. Per ABIRU, JCA. read in context

E. LAND LAW
8. Lease – Constituents of a valid lease

The law is settled that the principle for a valid lease is that it must be clear that there was an intention to create a term of years with a certain beginning and a certain ending. Per JAURO, JCA. read in context


LEAD JUDGMENT DELIVERED BY JAURO, JCA


The appeal herein is from the decision of the Plateau State High Court of Justice in Suit No: PLD/J84/2011 presided over by Hon. Justice P.L. Lot delivered on 8th December, 2014.

By his amended statement of claim, the plaintiff now Appellant pleaded that in October, 2009 he entered into agreement with the Defendant now Respondent to lease his vehicle, a Mazda E200 18 Seater capacity Bus with registration number AX 344 A NW. He contended that upon entering the said agreement, the said vehicle commenced operation with the defendant remitting the average sum of N200,000.00k monthly to the plaintiff. He stated that after he had disagreement with the driver of the said vehicle sometimes in 2010, he employed a new driver for the vehicle, one Dauda Soji who after attempting to commence work with the vehicle discovered that the vehicle had been vandalized with many parts removed which rendered the vehicle unusable. The removed parts of the vehicle as stated by the Appellant are:

i. The right hand side/front grill, valued at N36,000.00

ii. One main tyre together with rim, valued at N18,500.00

iii. One spare tire together with the rim, valued at N18,500.00

iv. Distributor, valued at N15,500.00

v. Battery, valued at N15,500.00

vi. Motor Jack, valued at N25,000.00

vii. Wheel spanner, valued at N15,500.00

viii. Radiator cover, valued at N500,00

It was the statement of the plaintiff that it was at the inspection of his vandalized vehicle at the motor park premises of the defendant at No. 6, Murtala Mohammed Way, Jos where the vehicle was kept, the workshop manager of the defendant admitted to him (plaintiff) that he had directed the removal of the parts to fix one of their vehicles though he assured him that the management of the defendant was going to handle the matter. The plaintiff further stated that to his surprise afterwards the defendant neglected to address the issue of the damages done to his vehicle, he discovered that the number LV22 assigned to his vehicle by the defendant had been reallocated to another vehicle.

It was further the statement of the plaintiff that the defendant had sometimes in the year 1999 sold one of his vehicle in their fleet without his permission and till date the defendant is yet to fully pay him the money for the said vehicle. With the defendant’s refusal to address the issue of damages done to his vehicle and the loss of earnings, the plaintiff instituted this action before the lower Court and claimed against the defendant for the following:

a. The immediate replacement of all vandalized items of the plaintiff’s vehicle, a Mazda E2000 18 Seater Bus with registration number AX 344 ANW and putting same back in its perfect working condition or in the alternative, the sum of N200,000.00 which is the estimated cost of repairing the vehicle.

b. An order directing the defendant to pay the plaintiff the sum of N300,000.00 (Three hundred thousand naira) monthly from October, 2010 when the vehicle was grounded by the defendant until the final determination of this matter and thereafter until the final liquidation of the judgment sum.

c. The immediate return of the number LV22 allotted to his vehicle by the defendant for his vehicle’s exclusive use in line with the contract terms between them.

d. The sum of N2,000,000.00k (Two Million Naira) only as general and exemplary damages.

e. The cost of this action

The defendant denied the plaintiff’s claims and contended that the plaintiff is not entitled to any of his claim and that the claim is malicious, vexatious and an exercise in gold digging and urged the lower Court to dismiss it. The defendant/Respondent counter-claimed against the plaintiff for the sum of N41,200.00 (Forty One Thousand Naira Only).

In the course of the trial before the lower Court, the plaintiff/Appellant in support of his case called 3 witnesses, while the Respondent on its part called four witnesses. At the end of the parties’ case and after filing and exchanging final written addresses, the learned trial judge dismissed both the main claim and the counter claim for lacking in merit.

Dissatisfied with the judgment of the trial Court, the Appellant filed amended notice of appeal which was deemed filed before the Court on 6/11/2017. The appeal is premised on five grounds of appeal. The Appellant sought for an order of the Court setting aside the decision of the lower Court and to enter judgment in favour of the Appellant.

The record of appeal was compiled and deemed transmitted to this Court on 4/4/2017. Upon the appeal being properly entered, parties filed and exchanged their respective briefs of argument in accordance with the rules of Court. The Appellant’s brief of argument is dated 16th May, 2017 and filed on 18th May, 2017. While the Respondent’s brief of argument is dated 22nd January, 2018 and deemed filed on 23rd January, 2018. The appeal was heard before the Court on 20th March, 2018. The Appellant was represented by S.D. Dawah Esq. who adopted the Appellant’s brief of argument and urged the Court to allow the appeal. The Respondent on its part was represented by Jim Gotom Esq. who also adopted the Respondent’s brief of argument and urged the Court to dismiss the appeal.

From the five grounds of appeal, learned counsel for the Appellant distilled three issues for determination to wit:

i. Whether the trial Court was right in its finding that the evidence of PW1 and PW3 is (sic) hearsay. (Ground 4 & 5)

ii. Whether from the evidence before the Court, the trial Court was right in its finding that the Appellant did not prove the cost of the items removed from the vehicle (Ground 5).

iii. Whether from the totality of the evidence before the Court the Appellant proved his case on the balance of probability as to entitle him to judgment (Ground 1-5)

The Respondent on its part, adopted all the three issues as formulated by the Appellant. However, in the circumstance of this case the issue for determination in this appeal can be reframed as follows:
Whether from the totality of the evidence before the Court, the trial Court was right to have dismissed the plaintiff/Appellant’s suit for want of evidence.

In arguing this issue, learned counsel for the Appellant submitted that in the face of the evidence before the Court the Appellant proved his case and was entitled to judgment. On the evidence of PW1 and PW3 where the trial Court held to be hearsay evidence and inadmissible, learned counsel submitted that their evidence is what they personally perceived and is not hearsay evidence but direct evidence which is admissible in law. He referred to the case of FRN V. Usman (2012) VOL. 49 (Pt. III) NSCQR 1935 at 1952 para D-F on the meaning of hearsay evidence. Learned counsel also referred to the evidence of PW1 and PW3, particularly in paragraphs 5-7 and paragraphs 5, 6 and 8 that their evidence with regard to the items removed from the vehicle and their costs as direct and not hearsay.

On the items removed from the Appellant’s vehicle it was submitted that based on the evidence of PW2 who testified as to the number of items that were removed from his vehicle and the cost of each item and the evidence of PW1 who also testified as to the items that were removed from the said vehicle and the fact that the Respondent’s workshop manager admitted that he has given instructions that the items be removed to fix one of their vehicle, the Appellant had proved the items removed from the vehicle. He contended that the Respondent did not cross-examine the witnesses on these pieces of evidence. He argued that the failure of the Respondent to cross-examine the Appellant’s witnesses on these issues, renders the evidence on the issue to be unchallenged and correct. Reliance was placed on the cases of Iteogu V. LPDC (2009) VOL. 90 NSCQR 221 at 241 para E-G; Shell V. Edamkue Koro & Nwuikunee (2009) VOL. 29 NSQR 599 at 628 – 629 para H-A.

It was further contended that by exhibit A and A1 which signifies lease agreement between the Appellant and the Respondent, the Appellant had proved his case. He argued that the Respondent agreed under cross-examination that exhibit ‘A’ is the document evidencing the lease agreement between them and that the Respondent having admitted the fact that the Appellant’s vehicle was on lease to the Respondent needs no further proof. Reference was made to the cases of Senator Godwin & Anor. V. Ikede Godwin Ohakim & Anr. (2009) LPELR – 4206 (CA) and S.C.C. (Nig) Ltd. V. Our Line Ltd. (2009)17 NWLR (Pt. 1170) 382 SC.

Learned counsel further submitted that the Appellant has proved his monthly loss of earning from the vehicle when he tendered exhibit B and B1 in support of this assertion, and the Respondent did not cross-examine the PW2 on this point. It was contended that the failure of the Appellant to cross-examine PW2 on this issue, rendered the evidence on the issue to be unchallenged and uncontroverted. Reliance was placed on the cases of Iteogu V. LPDC (Supra), Shell Edamkue V. Koro & Nwuikunee (Supra).

Learned counsel argued that the evidence of DW1 supported his claim, that the Appellant’s vehicle earned not less than N300,000.00 a monthly. On the strength of this submission, he argued that the Appellant having successfully proved that the vehicle earned N300,000.00 per month, the onus then shifted to the Respondent to disprove him or prove that the Appellant’s vehicle earned lower than that per month.

On the damage done to the Appellant’s vehicle, learned counsel submitted that from the totality of the evidence before the Court particularly that of PW1 and DW2, the Appellant had established that it is the policy of the Respondent to have leased vehicles parked in their premises and the keys deposited with its security men for safe keeping. On this argument, he contended that a keeper of goods should be in the position to explain damages done to the goods, which is expected to be returned in the condition it was when it was kept in its custody or liable for the damages done to it. Reliance was placed on the case of Miss Bunmi Omotoye V. ABC (Transport Co.) Ltd. (2009) LPELR – 8269 (CA).

It was conceded by the learned counsel that the law places burden of proof on a plaintiff, but the proof or rebuttal of an issue when it arises in the course of proceedings shifts from plaintiff to defendant and vice versa. He referred to Section 131 of the Evidence Act and the Latin maxim ei qui affirmat non ei qui negat incumbit probation. He submits that the Appellant has successfully discharged the burden placed on him but the Respondent has failed to do same, when the onus shifted to it to disprove the Appellant. He submits further that all that the Respondent has done in its evidence is denials and no more.

In conclusion, learned counsel submitted that in the face of the evidence before the Court, the Appellant has successfully proved his case and is entitled to judgment. He urged the Court to resolve the issue for determination in this appeal in favour of the Appellant and allow the appeal.

In response, learned counsel for the Respondent on the evidence of PW1 and PW3 submits that their evidence is hearsay evidence. He referred to the Supreme Court’s decision of Ojo V. Gharoro (2006) ALL FWLR (Pt. 316) 197 at 217 on the meaning of hearsay evidence. In the same vein, the cases of Onya V. Ogbuji (2011) ALL FWLR (Pt. 556) 493 and Ijioffor V. The State (2011) 4 SCNJ 230 were also referred to and that the express or implied assertion of any person other than the witness who testified and assertions in documents produced to the Court when no witness is testifying are hearsay, hence inadmissible as evidence of that which is asserted.

It was contended by the learned counsel that PW1 and PW3 did not give any iota of direct evidence of witnessing the vandalization of the vehicle. He referred to the evidence of PW1 on pages 46-48 of the record of appeal and that of PW3 on pages 49-51 of the record of appeal. He submits that the evidence of PW1 on account of what he was told or heard from the workshop manager that the Respondent vandalized the vehicle of the Appellant is inadmissible. He further submitted that the lower Court rightly held that it was hearsay evidence and that PW3 never gave direct evidence on what he wanted the lower Court to believe.

It was contended that the evidence of PW1 and PW3 was not only hearsay, but also contradictory and the Appellant has not challenged this impeachable finding of the lower Court. He stated that where any decision of the Court is not challenged, it remained enforceable. He relied on the case of Haruna V. K.S.H.A (2011) 7 NWLR (Pt. 1189) 604 @ 607.

In his further response more particularly on the damage done to the Appellant’s vehicle, learned counsel contended that the Appellant did not prove that the Respondent vandalized his vehicle and therefore could not be entitled to anything. He maintained that the Appellant’s claim is special damages and by that the Appellant has to prove his claim strictly by credible evidence. He argued that the purported admission by the Respondent did not discharge the burden on the Appellant. He relied on the case of Haway V. Medicowa Nigeria Ltd. (2000) FWLR (Pt. 22) 1040 @ 103 paras A-C. It was submitted further that the Appellant did not tender the receipts of the items or any credible document to show their value as the evidence of PW3 being not a spare parts dealer is speculative and the Court of law cannot conjecture from speculations.

On the Appellant’s argument on exhibit ‘A’, learned counsel submitted that the lower Court was right when it held that exhibit ‘A’ tendered by the plaintiff has no binding force except on the conditions of the operation of the leased vehicle. He submits that a Court cannot rewrite a contract for the parties. He relied on the cases of Standard (Nig) Engineering Co. Ltd. V. Nigerian Bank For Commerce And Industries (2006) ALL FWLR (Pt. 316) 255, Baker Marine (Nig) Ltd.V. Chevron (Nig Ltd) (2006)13 NWLR (PT. 997) 276 @ 287 – 288 paras H-A. On the Appellant’s claim of loss of earnings from his vehicle, learned counsel submitted that the lower Court was right when it refused the Appellant’s claim as damages cannot be awarded in the absence of proof of liability by the Appellant against the Respondent. Reliance was placed on the case of UTB V. Ozoemena (2007) ALL FWLR (Pt. 383) 1014 @ 1044 para D-E.

On the submission that it was the Respondent’s policy to allow vehicle parked at its premises thereby insinuating a duty of care on the Respondent, learned counsel submits that the Appellant’s submission on this point is highly misleading as it did not flow from the evidence on record. He referred to the evidence of DW2 on pages 4-8 of the record of appeal. It was maintained that the Appellant’s case was further damaged when he did not cross-examine the DW2 on deposition in paragraph 8 and fail to call his former driver to give evidence to the contrary. On the whole, learned counsel urged the Court to hold that the Respondent did not admit liability of the Appellant’s knocked engine and resolve this issue against the Appellant and to dismiss this appeal.

A good starting point for the resolution of this issue is from Section 135(1) of the Evidence Act, which provides thus:

“135(1) whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.”

The provision of this Section is very clear and unambiguous and same is also self-explanatory. No aid is required for the interpretation of the said provision. Needless to say, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence is produced on either side, regard being had to any presumption that may arise in the pleadings.

See Section 137(1) of the Evidence Act. In the instant case, the plaintiff/Appellant asserted the existence of lease agreement in relation to his vehicle between him and the Respondent. The plaintiff contended that the Respondent vandalized his vehicle and removed various parts of it while the vehicle was in their custody, the defendant/Respondent denied the Appellant’s assertion. By virtue of the provision of Section 135(1) & (2) and 136 of the Evidence Act, the plaintiff/Appellant that asserted the existence of the lease agreement and the vandalization of his vehicle by the Respondent must prove same as failure to do so will qualify his case for dismissal. The law is settled that where a party denies the existence of a fact as in the instant case, the party alleging the existence of the fact must prove it by credible evidence that the facts exists.

In the instant case, the onus of proof was on the Appellant to prove the existence of the lease agreement between them and the vandalization of his vehicle by the Respondent which rendered it liable for all the damages done to the vehicle. See Uchendu V. Ogboni (1999)5 NWLR (Pt. 603)337; Okeke V. Agbodike (1999) 14 NWLR (638) 283; Jalo V. Mohammed (2005) ALL FWLR (Pt. 278) 56; Iordye V. Ihyambe (2000) 15 NWLR (692) 672; Buhari V. INEC (2008)18 NWLR (Pt. 1120) 246.

In proving the existence of the lease agreement between the Appellant and the Respondent, the Appellant tendered exhibit ‘A’ which he argued that the Respondent admitted exhibit ‘A’ as the document evidencing the lease agreement between them. The law is settled that the principle for a valid lease is that it must be clear that there was an intention to create a term of years with a certain beginning and a certain ending. A close look at exhibit ‘A’, will reveal the existence of a valid lease. For ease of reference, exhibit ‘A’ is hereby reproduced:

“EXHIBIT ‘A’

PLATEAU EXPRESS SERVICES LTD No. 36 Murtala Mohammed P.M.B. 1 6, JOS Tel: 073-456865, 070-35447-337, 070-83038720

Your Ref:…………………………… 27th October, 2009

PESL/PLM 026/VII/X Date: ……………………….

Our Ref:……………………………..

BOTSHA JOEL CHUNG

……………………………

ECWA HQS. CHURCH

……………………………

JOS.

……………………………

RE: LEASING OF A VEHICLE

Refer to your letter dated ……1st Sept. 2009……. On the above subject matter.

I write to convey to you Management approval of your Leased vehicles Management Scheme with effect from

………5th Oct, 2009………

You are therefore, by this approval to submit the original particulars of the vehicle to the undersign, please.

Attached is the eased Management Condition which is to be strictly followed and can be revised without any prior notice.

SGNED:

GYANG SHA

For: Ag. General Manager.”

It is clear and certain from the content of exhibit ‘A’, the Respondent admitted the existence of a vehicle lease with the Appellant. The Appellant therefore is said to have proved this assertion. The next question is whether the Appellant proved that his vehicle was vandalized by the Respondent and is entitled to the items claimed as well as claim loss for earning from the time the damage occurred.

In proving the allegations, the Appellant led three witnesses. On the evidence PW1 and PW3 on the parts being removed from the Appellant’s vehicle, learned trial judge found their evidence as hearsay evidence and therefore inadmissible. Traditionally, testimony that is given by a witness who related not what he or she knows personally, but what others have said, which evidence is dependent on the credibility of someone other than the witness, is called hearsay. Under the rules of evidence, such evidence is generally inadmissible. Indeed, a piece of evidence is hearsay, if it is testimony of the contents of a statement made by a person who himself is not called to testify. See Ifegwu V. UBA Plc. (2011) 16 NWLR (Pt. 1274) Pg. 555 at 588 paras D-G, Ojo V. Gharoro (2006)10 NWLR (Pt. 987)173. The evidence in chief of PW1 was to the effect that the workshop manager of the defendant, one Mr. Danjuma Jika admitted before him that he (Danjuma Jika) had instructed the workshop to remove the items to fix one of their vehicles that had a problem. See page 47 of the record of appeal. Under cross-examination PW1 maintained that it is not true that the plaintiff informed him that one Danjuma Jika said it was the defendant that removed some parts in the vehicle. It is clear from the evidence of PW1 is that what he had testified on is as to what the workshop manager stated. His evidence is therefore hearsay on the admission, of the workshop manager of the Respondent, particularly if it is aimed at establishing the truth of what the workshop manager stated.

PW3 in his evidence in chief which was to the effect that the plaintiff/Appellant told him that he had employed a new driver for the vehicle only for him to discover that some parts had been removed. See page 49 of the record of appeal. Under cross-examination PW3 testified that it was the plaintiff who told him that the defendant will fix the vehicle for him. See page 138 of the record of appeal. Based on the authority of Ifegwu cited earlier, it is crystal clear that the evidence of PW3 is hearsay evidence and therefore inadmissible evidence.

It is also clear as earlier stated that the evidence of PW1 is also hearsay evidence, the question that comes to mind is whether the Appellant could be said to have proved his case by the admission of the Respondent. It is generally the law, that what is admitted need not be proved. See Ugochukwu V. Co.Op. & Comm. Bank Ltd. (1996)6 NWLR (Pt. 456)524, Olagunyi V. Oyeniran (1996)6 (Pt. 453)127. In Din V. African Newspapers Ltd. (1990)3 NWLR (Pt. 139) 392 at 405 the Supreme Court held for proof of facts admitted, thus:

“No fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any ruled or pleading in force at the time they are deemed to have admitted to be proved otherwise than by such admission.”

In the instant case, the defendant/Respondent denied the Appellant’s assertion on the vandalized vehicle and items removed from the said vehicle. In either its pleading or any document in writing, the Respondent never admitted the Appellant’s claim. The Respondent even presented their workshop manager (Danjuma Jika) who denied having admitted for the damage done to the Appellant’s vehicle. He testified as DW2 wherein he stated under examination-in-chief “that on no occasion did I instruct anybody at the workshop to remove the items in the plaintiff’s vehicle to fix any other vehicle.” Under cross-examination he testified that he was not present when the plaintiff came with one Dauda (PW1) to inspect his vehicle parked in the defendant’s premises. See page 143 of the record of appeal. In the case of Pas (Nig) Ltd. V. N.N.S. Co. Ltd. (1990) 6 NWLR (Pt. 159)764 at 770 the Court, held thus:

“A plaintiff who relies for the proof of a substantial part of his case upon admission in the defence must show that the matters in question are clearly pleaded as clearly admitted, he is not entitled to ask the Court to read meaning into his pleading which upon fair construction do not clearly appear in order to fix the defendant with an admission.”

See also Ash & Anor. V. Hutchinson & Co. Publishers Ltd. & Ors. (1936)1 CH.D. 489 at 502.

In the instant case the plaintiff could not establish where the defendant clearly admitted by pleading, that it is responsible for the items removed from the Appellant’s vehicle. The plaintiff therefore must succeed on the strength of his case by producing credible evidence to prove his assertion, failure of the plaintiff to do so, will lead to his case being dismissed. On the question of items removed from his vehicle, the plaintiff/Appellant did not support his case with credible and uncontroverted evidence. The Appellant as plaintiff ought to have pleaded Res ipse loquitor and adduce credible evidence in support of negligence, which was not done in this case. By preponderance of evidence the Appellant has failed to establish that the Respondent vandalized the vehicle nor was it responsible for the vehicle being grounded.

The Appellant claimed for N200,000.00 special damages, N300,000.00 monthly as loss of earning and the sum of N2,000,000.00k (Two Million Naira) only as general and exemplary damages. General damages means such damages as law itself implies or presumed to have accrued from the wrong complained of, for the reason that they are its immediate, direct and proximate consequence or such as necessarily result from the injury, or such as did in fact result from the wrong, directly and proximately and without reference to the special character, condition or circumstances of the plaintiff. See Shell Petroleum Development Company (Nig) Ltd. V. High Chief G.B.A. Tiebo VII & 4 Ors. (1996)4 NWLR (Pt. 445) Pg.657. While exemplary damages are damages which are in nature awarded with a possible secondary object of punishing the defendant for his conduct in inflicting harm on the plaintiff.

In the instant case, the Court cannot grant the damages claimed and the monthly sum of N300,000.00 for loss of earning merely because the plaintiff asked for it and more particularly the Appellant as plaintiff having failed to establish the injury cause to him by the Respondent. See UTB V. Ozoemena (2007) ALL FWLR (Pt. 383) 1014 at 1044. Flowing from the foregoing, the Appellant’s claim of loss of earning, special and general/exemplary damages must fail.

On the whole, the lone issue is resolved against the Appellant and in favour of the Respondent. The appeal is lacking in merit and it accordingly fails. The judgment of the Plateau State High Court of Justice delivered on 8-12-2014 in Suit No: PLD/J.84/2011 is hereby affirmed. There will be no order as costs.

ONYEMENAM, JCA

I have had the opportunity of reading in advance the leading judgment of my learned brother ADAMU JAURO JCA. I agree with the reasoning contained therein that the appeal is lacking in merit and therefore fails. I affirm the judgment of the High Court of Plateau State delivered on 14th December, 2014 by P.L. Lot, J. in Suit No.PLD/J84/2014. No order as to costs.

ABIRU, JCA

I have had the privilege of reading the lead judgment delivered by my learned brother, Adamu Jauro, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein.

It is settled law that civil suits are determined on preponderance of evidence and balance of probabilities and he who asserts must prove in order to succeed in his claim – Imana Vs Robinson (1979) 3-4 SC1, Elias Vs Omo-Bare (1982) 5 SC 25, Iseogbekun Vs Adelakun (2013) 2 NWLR (Pt 1337) 140. A claimant must succeed on the strength of his case and not rely on the weakness of the defence and the absence of a statement of defence or evidence led by the defendant does not exonerate the responsibility on a claim to prove his claim – Harka Air Services Ltd Vs Keazor (2006) 1 NWLR (Pt 960) 160 and Ogunyade Vs Osunkeye (2007) 15 NWLR (Pt 1057) 218.

It follows therefore that a claimant has the burden of establishing his claim upon relevant and credible evidence that is conclusive and that commands such probability that is in keeping with the surrounding circumstances of the case in hand – Jiaza Vs Bamgbose (1999) 7 NWLR (Pt 610) 182, Mbani Vs Bosi (2006) 11 NWLR (Pt 991) 400, Egwa Vs Egwa (2007) 1 NWLR (Pt 1014) 71. For a piece of evidence to be accepted as cogent and credible, it must be strong and uncontroverted by the opposing party -Eyo Vs Onuoha (2011) 11 NWLR (Pt 1257) 1. Credible evidence means evidence worthy of belief and that for evidence to be worthy of belief and credit, it must be credible in itself in the sense that it should be natural, reasonable and probable in view of the transaction which it describes or to which it relates as to make it easy to believe -Agbi Vs Ogbeh (2006) 11 WLR (Pt 990) 65, Ogboru Vs Ibori (2006) 17 NWLR (Pt 1009) 542.

Reading through the records of appeal in the instant case, it is obvious that the nemesis of the case of the Appellant was lack of credible evidence in proof thereof. The problem commenced from the pleadings of the Appellant. He had the option of predicating his claim on negligence or breach of contract or both. He chose to base his claim on breach of contract. A breach of contract connotes that the party in breach had acted contrary to the terms of the contract either by non-performance, or by performing the contract not in accordance with its terms or by wrongful repudiation of the contract. A party who had performed the contract in consonance with its terms cannot be said to have been in breach thereof -Pan Bisbilder Nigeria Ltd Vs First Bank of Nigeria PIc (2000) 1 NWLR (Pt. 642) 684, Kemtas Nigeria Ltd Vs Fab Anieh Nigeria Ltd (2007) All FWLR (Pt 384) 320, Obajinmi Vs Adedeji (2008) 3 NWLR (Pt 1073) 1.

Thus, to succeed in an action for breach of contract, a claimant must plead facts showing the existence and subsistence of a valid contract as well as its express and implied terms and what or which of the terms was breached and in what manner, i.e. the particulars of breach. In the instant case, the Appellant pleaded facts suggesting the existence of a contract between him and the Respondent on a sort of leasing of vehicle agreement, the terms of which he attached to his pleadings, but he did not plead the exact terms of the agreement that the Respondent breached by the acts he complained of. The Appellant merely stated what his complaints against the Respondent were; he did not tie his complaints to any of the terms of the agreement.

The Appellant led evidence in the same careless manner as his pleadings. None of the three witnesses he called gave evidence of the particulars of terms of the contract that the Respondent was said to have breached. Counsel to the Appellant suggested in his arguments, both in the lower Court and in this appeal, that the Respondent should be found culpable for the damages that occurred to his vehicle on the simple ground that the vehicle was vandalized while parked in the premises of the Respondent. Counsel contended that “a keeper of goods should be in a position to explain damages done to the goods, which is expected to be returned in the condition it was when it was kept in its custody or liable for damages done to it.” This principle canvassed by Counsel operates in a contract of bailment and is akin to the doctrine of res ipsa loquitor in a case of negligence. The case of the Appellant was not based on bailment or negligence; it was based on a breach of lease of car agreement. It is settled law that parties are not allowed to raise issues of facts in the address of their Counsel which were not raised or agitated on the pleadings as address of Counsel does not substitute for pleadings – Buraimoh Vs Bamgbose (1989) All NLR 669, Okwejiminor Vs Gbakeji (2008) 5 NWLR (Pt 1079) 172, Ayanwale Vs Odusami (2011) LPELR-8143 (SC).

The Appellant did not make out a credible case either on the pleadings or in the evidence of his witnesses to sustain his claim. The finding of the lower Court that the case of the Appellant lacked merit was thus correct. It is for these reasons and fuller exposition of the law in the lead judgment that I agree that there is no merit in this appeal and I hereby dismiss same. I affirm the judgment of the High Court of Plateau State, Jos in Suit No PLD/J84/2011 delivered by Honorable Justice P. L. Lot on the 8th of December, 2014. I abide the order on costs in the lead judgment.

Appearances:

S.D. DAWAH, ESQ. For Appellant(s)

JIM GOTOM, ESQ. WITH HIM, D.S. CHOJI, ESQ. AND M.D. DADOK, ESQ. For Respondent(s)