How man lost negligence suit against UPS
When Panvil Emmanuel Neple failed to receive documents required to obtain a Canadian student visa for his studies, he filed a negligence of tort’s suit against United Parcel Service Nigeria Limited (UPS) before an FCT High Court. Neple told the court that on the 14th, December 2012, he and Peter Neple (his father) paid the […]
When Panvil Emmanuel Neple failed to receive documents required to obtain a Canadian student visa for his studies, he filed a negligence of tort’s suit against United Parcel Service Nigeria Limited (UPS) before an FCT High Court.
Neple told the court that on the 14th, December 2012, he and Peter Neple (his father) paid the sum of N2, 850.00 to UPS for a return delivery of documents pertaining to him at the Canadian Embassy. He maintained that UPS failed and/or neglected to deliver the return letter of the Canadian Embassy until he went to their office on the 11th, January 2013, only to discover that they were still in custody of his letter.
Aggrieved that the non-delivery of said letter amounts to a breach of duty of care owed by the UPS, whose negligence prevented Neple from obtaining a study visa, the Neples prayed the court to order UPS refund the sum of $25,850.00 (Twenty-Five Thousand Eight Hundred and Fifty USD) to cover the schools fees paid and lost due to negligence from the currier service.
They also prayed that UPS be made to refund N600,000.00 (Six Hundred Thousand Naira) being the air fare of Neple, N5 million in damages for negligence, and N2 million for breach of contract to promptly deliver the mail.
UPS however, told the court that their dispatch rider order Ojobo Barnabas Adah, visited the Neples office on the 21st December, 2012 and discovered that the office was under lock and key.
“He then dropped the letter with the security man in the hope that the Plaintiffs (the Neples) would get it. He also recounted how he got there on the 24th December to cross check that it had been delivered, only for the security man to tell him that he was also going on Christmas Vacation hence, he returned the letter to the Defendant.”
“Still in an effort to ensure that the Plaintiff got hold of the letter, Adah left his phone number and a note, indicating that there is a parcel with the defendant (UPS) which can be picked from Defendant’s office,” the Court record said.
The trial judge, Justice Olasumbo Goodluck, in her judgment held that the plaintiffs’ sole issue for determination was “whether the defendant owed the plaintiffs a duty of care and if this is answered in the affirmative, whether the plaintiffs are entitled to damages arising from the defendant’s failure to exercise care in handling of the plaintiffs’ letter.”
She said UPS’ counsel in his written address dated 8th April, 2014 raised a single issue for determination, that is, whether or not from the totality of the evidence before the court, the plaintiffs had discharged the onus of proof placed upon them by law, on the preponderance of evidence led on record to entitle them to grant of the reliefs sought in this suit.
Justice Goodluck said she is of the view that UPS being couriers for the delivery and return of correspondence between the Panvil and the Canadian Embassy are under a duty to maintain utmost care in the efficient, effective and prompt delivery of sensitive documents.
She added that on what constitutes the tort of negligence it was held in the E. SUFFOK RIVERS CATCHMENT BOARD v. KENT (1941) AC 74 at 86 that “negligence alone does not give a cause of action, damage alone does not give a cause of action, the two must co-exist.”
The judge said the salient ingredients of actionable negligence based on Supreme Court’s decision in MAKWE v. NWUKOR (2001) are (1) The existence of a duty of care owed to the complainant by the defendant; (2) Failure to attain that standard of care prescribed by the law; and (3) Damage suffered by the complainant which must be connected with the breach of duty of care.
On the first ingredient, the court held that a duty of care over the handling and delivering of the plaintiff’s documents by the defendant undoubtedly exists.
Justice Goodluck held that based on the evidence of the defence witness (Ajah), the documentary evidence tendered by the witness, all of which were not contradicted by the plaintiff during cross-examination, the defendant diligently fulfilled its obligation to the plaintiff by delivering the letter on the 21st December at the place directed by the plaintiffs.
She noted that “where there are two conflicting versions of a story, the court can believe either and give reasons for the belief. In the instant case the plaintiffs contends that the letter was not delivered whilst the defendant assert the contrary. This court is inclined to believe the evidence of the defendant in the face of the preponderance of evidence of service by D.W.1 (Ajah).
“This evidence was not impeached by cross examination and the documentary evidence tendered before this court further reinforces the defendant’s proof of delivery.”
The judge held that whatever damages that arose from the delayed service is more attributable to the plaintiff who went on holidays knowing fully well that it had instructed delivery at a given address where they would not be in attendance to collect the letter.
“Having held that the defendant weren’t negligent, this court is of the view and will so hold that the consideration of their principle for establishing a case of negligence is academic and therefore needless. In other words, where there is no evidence of failure to maintain the reasonable standard of care, a case of damages cannot be ascribed to the defendant.
“In the light of the foregoing considerations, plaintiffs’ case fails and is accordingly dismissed,” Justice Goodluck ruled.
The judge in dismissing the Neples’ case against UPS thereby asserted that the inability of Neple to receive the correspondence from the Canadian Embassy which prevented him from obtaining the visa to travel to Canada for studies was neither negligence on the part of UPS nor was it an actionable negligence of tort.