SUBVOLA OLUKOLU V. A. O. OYEKOYA

LUCIE-SMITH, C.J.

This action was commenced on the 30th December, 1946, in the Magistrate’s Court at Ibadan, and after a very great number of adjournments judgment was delivered on the 17th. April, 1948.

At the trial, only the plaintiff and defendant gave evidence, and in the result judgment was given for the plaintiff.

The defendant then appealed to the Supreme Court in its appellate jurisdiction and was successful-the judgment of the lower Court being reversed the present appellant then appealed to this Court.

The facts of the case are simple and were not even seriously in dispute.

In 1946 the parties were living together as man and wife. In October of that year the appellant, with the full consent of the respondent, left their home to go to Zaria on business. On leaving she left behind certain of her belongings and handed the key of her room to the respondent. Having regard to the length of time one year-during which they had been living together I think it would be safe to presume that the respondent had a very good idea as to what things had been left with him for safe custody. Unfortunately, during the appellant's absence, the respondent decided to get rid of her and, instead of behaving reasonably and waiting for her return, he proceeded to dispatch her belongings to her by rail.

For some unknown reason he railed her belongings in two consignments. The first consignment consisting of seven loads was dispatched on the 8th November, 1946, and was safely received by the appellant. The second consignment of five loads was dispatched later, but before it had time to arrive at Zaria, the appellant had left for Ibadan and she never received these five loads.

She arrived back in lbadan on the 18th November and was told of the despatch of the second consignment and she then informed the respondent of its non-receipt by her.

The respondent appears to have taken no action to trace or recover the missing consignment until the 6th January, 1948, by which time this action had been pending for more than a year.

Bailment has been defined as a delivery of goods on a condition, expressed or implied, that they shall be restored by a bailee to the bailor, or according to his (the bailor's) directions, as soon as the purpose for which they are bailed shall be answered. (See Jones on Bailments (4th Edition), p. 1). In the first Edition of the work above referred to, at p. 36, the learned author separated bailments into five classes-the first class is the one with which I am concerned and that is DEPOSITUM, or the deposit of a chattel with the bailee, who is simply to keep it for the bailor without reward: this is known as a gratuitous bailment.

The measure of diligence demanded of a gratuitous bailee was laid down by Lord Chelmsford in Giblin v. MacMullen (1868), L.R. 2 P.C. 317, at p. 33.7 as being, as a rule, that degree of diligence which men of common prudence generally exercise about their own affairs. See also Bullen v. Swan Electric Engraving Co. 23 T.L.R. 258 in which, at p. 259, the then Sir Gorell Barnes said

“We are left, therefore, to the consideration of well-known principles of law. One of these was that a gratuitous bailee must show that the loss occurred through no want of reasonable care on his part-that is to say, as much care as a prudent man would use in keeping his own property.”

The learned Judge in the first appeal quoted from 1 Halsbury (2nd Edition), p. 733, that

“In order, therefore, to maintain an action, in the case of a gratuitous deposit, the plaintiff must show that the defendant has been guilty of either a breach of orders, gross negligence, or fraud.”

To my mind the evidence makes it clear that the relationship of bailor and bailee existed between the appellant and respondent-that in sending off without instructions the loads which had been entrusted to him for safe keeping the respondent was guilty of what was practically a breach of orders and that in taking no prompt action to trace and recover the goods he was guilty of gross negligence within the definition given by Lord Holt in Coggs v. Bernard 92 E.R. 107 (Smith’s Leading Cases, 13th Edition, p. 175). That is to say, the negligence for which a gratuitous bailee incurs liability is such as to involve a breach of confidence or trust, not arising merely from some want of foresight or mistake of judgment, but from some culpable default.

As regards the question of damages the evidence is slight, it being that of only the appellant herself. It was, however, not contradicted by the respondent and the learned Magistrate accepted it.

I would allow the appeal and restore the Magistrate’s judgment. The appellant is entitled to her costs here and in the first appellate Court, which costs I would assess at £42 plus out of pocket expenses.

VERITY, C.J.

I agree.

LEWEY, J.A.

I agree.