ACHEBE v. FBN (2020)

ACHEBE v. FBN

(2020)LCN/14815(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Friday, November 20, 2020

CA/E/84/2018

RATIO

COURT: PRIMARY DUTY OF THE TRIAL COURT

The law is trite that the evaluation and ascription of probative value to the evidence led is the primary duty of the trial Court. PER BOLAJI-YUSUFF, J.C.A.

DETINUE: NATURE OF AN ACTION IN DETINUE

The gist of an action in detinue is the unlawful retention or refusal of the defendant to release the plaintiff’s chattel after a demand for its release has been made by the person who is entitled to its immediate possession. See KOSILE V. FOLARIN (SUPRA). Section 72 of the TORTS LAW OF ENUGU STATE, CAP 150 VOLUME VI LAWS OF ENUGU STATE, 2004 defines detinue as follows:
72. (1) “Detinue is an action which lies-
(a) against a person who wrongfully detains the goods of another;
(b) against a person who has had possession of goods but improperly imparted with such possession, or
(c) against a bailee who has negligently lost or otherwise wrongfully failed to return goods bailed to him, but not where the goods were merely misused or restored in a damaged condition.
(2) “Action for detention “has the same meaning as “action for detinue.”
The meaning and nature of an action in detinue has also been stated in a plethora of cases. See LABODE V. OTUBU ( SUPRA), (2001) LPELR-1731(SC) AT 18 (B-C) where the Supreme Court per Uwais, J.S.C. stated thus:
“Detinue is defined to be a wrongful detention of a plaintiff’s chattel by a defendant, which is evidenced by the refusal of the defendant or his agent to deliver the chattel up on demand – see Alicia Hosiery Ltd. v. Brown, Shipley & Co., (1970) 1 Q.B. 195.”
In IHEANACHO & ANOR. V. UZOCHUKWU & ANOR. (1997) LPELR-1460 (SC) AT 13-14 (G-A), the Supreme Court per IGUH, J.S.C. held that:
“At common law, a claim in detinue lay at the suit of a person who has an immediate right to the possession of the goods in issue against another who is in actual possession of them, and who, upon proper demand, failed or refused to deliver them up without lawful excuse. See: Alicia Hosiery Ltd. v. Brown Shipley & Co. Ltd. (1970) 1 QB 195 at 207; Garrett v. Arthur Churchill (Glass) Ltd. (1970) 1 QB 92.”
See also BENIN RUBBER PRODUCERS CO-OPERATIVE MARKETING UNION LTD. V. OJO & ANOR. (1997) LPELR -772 (SC) AT 27 (E-F). JULIUS BERGER (NIG.) LTD. V. OMOGUI (2001) LPELR-1638 (SC) AT16 (C-D). NACENN NIG. LTD. V. BEWAC AUTOMATIVE PRODUCERS LTD. (2011) LPELR-8125 (SC) AT 17-18 (C-A). From the statutory and case law definition of detinue, for a plaintiff to succeed in an action for detinue the following facts must be established: 1) that the defendant is in actual possession of the chattel or goods. 2) That a demand has been made for its return. 3) That the defendant has refused to deliver the chattel. 4) That the refusal to deliver the chattel after the demand is without a lawful excuse. Where the plaintiff is unable to prove that the appellant has refused to deliver the chattel, an action in detinue must fail. Where the plaintiff proves that the defendant has refused to deliver the chattel but fails to prove that the refusal was without a lawful excuse, the action will fail.

In essence, all the four elements of an action in detinue must co-exist and must be established to the satisfaction of the Court for the plaintiff to succeed in an action for detinue. Where the plaintiff fails to prove any of the above elements, an action in detinue is bound to fail. See J.E. OSHEVIRE LTD. V. TRIPOLI MOTORS (1997) LPELR-1584 (SC) AT 29 (A-D) where the Supreme Court per ONU, J.S.C. referred to Udechukwu v. Isaac Okwuka (1956) SCNLR 189; (1956) 1 F.S.C 70 at 71 and held that:
“The Federal Supreme Court in a situation analogous to the one in hand in the case of Udechukwu v. Okwuka (supra) said:- “What must be established in a suit of detinue is wrongful detention by the defendant that is to say the defendant must have shown an intention to keep the car in defiance of the plaintiff. This is shown by proving a demand and a refusal to deliver. When however, the refusal is conditional it does not necessarily show withholding the chattel against the will of the plaintiff, proving that the condition is reasonable and not merely a device to put off the plaintiff.” PER BOLAJI-YUSUFF, J.C.A.
APPEAL: ATTITUDE OF THE APPELLATE COURT TO FINDINGS OF A TRIAL COURT

DETINUE: REMEDIES AVAILABLE TO A PLAINTIFF IN AN ACTION FOR DETINUE

In J.E. OSHEVIRE LTD. V. TRIPOLI MOTORS (SUPRA) AT 20-22 (F-A) the Supreme Court per ONU, J.S.C. stated the remedies available to a plaintiff in an action for detinue as follows:
“It has been held by this Court in Weidman & Walters (Nigeria) Ltd. v. Mojibola Oluwa & ors. (1968) 1 All NLR 383 in which the case of General Finance and Facilities Ltd. v. Cooks Cars (Romford) Ltd. (1963) 1 WLR 664 at 650-651 (per Diplock, L J.) was cited with approval, that a plaintiff who has a right of action in detinue has three remedies open to him and it is up to him to decide which option of the following to take:-(a) Claim for value of the chattel and damages for its detention. The value of the chattel is as proved at the time of judgment at the trial Court and the onus is on the plaintiff to prove the value. He is also to show by evidence the damage suffered by the detention; (b) Claim for the return of the chattel and damages for its detention; (c) Claim for the return of the chattel or its value as assessed, and damages for its detention. This option appears to be the best form of action for if the chattel has otherwise been removed from jurisdiction or hidden away and out of the sight of the sheriff there is no alternative other than a distrait for the value of the chattel as assessed plus damages for its detention. See also Alidu v. Manu (1944) 10 WACA 217; Okoroji v. Ezumah (1961) All NLR 183; Christopher Udechukwu v. Isaac Okwuka (1956) SCNLR 189; (1956) 1 F.S.C. 70 at 71 and Sachs v. Miklos (1948) 2 K.B.23”
See also ORDIA V. PIEDMONT ING. LTD (1995) LPELR-2753(SC) AT9-10 (D-B). JULIUS BERGER (NIG.) LTD. V. OMOGUI (SUPRA) AT 28 (B-E). NACENN NIG. LTD. V. BEWAC AUTOMATIVE PRODUCERS LTD. (SUPRA) AT 17-18(C-A). PER BOLAJI-YUSUFF, J.C.A.

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

1. GODFREY OBIORA ACHEBE (Doing Business As Brotec Hardware Trading Co. Nig.)APPELANT(S)

And

FIRST BANK OF NIGERIA PLCRESPONDENT(S)

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of the High Court of Enugu State delivered in suit no. E/85/2005 on 9/5/2017 Coram. E.N. OLUEDO, J. wherein the Appellant in his amended statement of claim sought the following reliefs:
“Wherefore the Plaintiff claims from the defendants #20,000,000 (Twenty Million Naira) as follows:
1. #1,000,000 being sum charged and paid to the plaintiff’s counsel for the prosecution of this suit.
2. #15,000,000 (Fifteen Million Naira) as general damages.
3. 23% interest per annum presently on sum of #450,000 from 12th March, 2001 when the loan was liquidated by the plaintiff until the return of the Union Bank share certificates used as collaterals.
4. 23% interest on the judgment debt/sum until it is fully liquidated.”

The appellant’s case is that he was a customer of the respondent bank. He was granted an overdraft facility of #300,000:00 (Three Hundred Thousand Naira) in 1995 which was increased to #450.000:00 (Four Hundred and Fifty Thousand Naira) in 1996. The facility was

secured with share certificates from various companies including Union Bank of Nigeria Plc. With the authority of the appellant, the Union Bank share certificates were forwarded to the Union Bank Registrars for verification. In 2001, the appellant cancelled the overdraft facility and liquidated the balance outstanding for payment. The respondent returned all the share certificates used as security for the facility except the Union Bank certificate no. 004488. for 1500 units of shares. The appellant by a letter written by his counsel demanded the return of the certificate but the respondent failed to return the certificate. The failure of the respondent to return the certificate resulted in denial of access to funds, financial credit loss of dividends and bonuses from the shares covered by the certificate and patronage due to his inability to execute local purchase orders given to him by various companies.

The respondent’s defence as contained in its amended statement of defence is that the appellant was consulted and he gave his authority and consent before the certificates were forwarded to the Union Bank Registrars through Premium

Securities Limited for verification. When the respondent was informed that the certificates forwarded to the Union Bank Registrars for verification were misplaced in the Registrar’s office, the appellant requested for the production of the certificate or replacement. Union Bank Registrars asked to be given some time to sort out the matter. The bank re-issued the certificates which have since been collected by the appellant’s counsel. Following continued investigation by Premium Securities Limited, it was discovered that certificate no. 004488 had been lodged in the appellant’s Central Securities Clearing Systems account no. C2072920R since November, 1994 through his stockbrokers. The respondent contended that certificate no.004488 was void ab –initio having been issued in error for 150 shares instead of 1500. The respondent further contended that the appellant did not suffer any loss as he was not denied access to credit/fund because all the Union Bank shares had been lodged into his CSCS account no. C2072920R and dividends and bonuses are as a matter of practice not affected by deposit of the shares as security.

The appellant

testified in support of his case. He called no other witness. The respondent called one witness and closed its case. Final written addresses were filed and adopted by counsel to both parties. The Court in its considered judgment dismissed the appellant’s claim in its entirety. The appellant was dissatisfied with the judgment. He filed a notice of appeal containing 3 grounds of appeal on 7/8/17. The grounds of appeal without their particulars are as follows:
GROUND ONE- ERROR IN LAW
“The learned trial judge erred and occasioned a miscarriage of justice by holding that the respondent did not wrongfully detain the appellant’s Union Bank Share Certificates and consequently not liable in tort of detinue.
GROUND TWO- ERROR IN LAW
The learned trial judge erred in law and occasioned miscarriage of justice by holding that the appellant did not lead credible cogent evidence to prove that his Union Bank Share Certificate No. 004488 given by the appellant to the respondent as security for the loan/overdraft granted the appellant by respondent has not been returned to appellant by the respondent even after the

appellant liquidated and paid up the loan/overdraft with the accrued interest thereto and consequently requested for the return of the Share Certificate.
GROUND THREE- ERROR IN LAW
The learned trial judge erred by holding that the appellant failed to prove the loss he suffered as a result of the respondent’s failure or delay in returning his Share Certificates to the appellant after the appellant liquidated and paid up the loan/overdraft with the accrued interest thereto and consequently requested for the return of the Share Certificate.”

The appellant raised the following issues for determination in this appeal:
1. “Whether from the evidence on record the appellant established that the respondent committed tort of detinue against the appellant?
2. Whether the actions of the respondent occasioned any injury on the appellant as to entitle the appellant to any compensation from the respondent?”

The respondent raised the following issues:
1. “Did the respondent Bank wrongfully detain the appellant’s Union Bank Share Certificates which were sent for verification of signature to Union Bank,

with the consent of the appellant?
2. Did the appellant lead credible evidence to prove his case, and as a corollary, did the appellant suffer any loss in the circumstances of this case?”

The issues formulated by the appellant are hereby adopted for the determination of this appeal. On issue 1, the appellant’s counsel submitted that the Curt below did not properly evaluate the evidence led and in error concluded that the respondent was not liable in tort of detinue. On meaning of detinue and what a plaintiff in an action for detinue must establish to succeed, he referred to LABODE V. OTUBU (2001) 7 NWLR (PT.712)256, FBN V. SONGONUGA (2007) 3NWLR (PT.1021) 230. SOMMERV. F.H.A (1992) 1 NWLR (PT.219)548. OWENA BANK V. OLATUNJI (2002) 12 NWLR (PT.781) 259. U.B.N. V. OSEZUAH (1997) 2 NWLR (PT.485) 259. He submitted that where a bank refuses to return the titled deeds deposited as security for a loan after the loan has been paid and after a demand has been made, the bank is liable for detinue. He referred to OKOLI V MORECAB FINANCE NIG, LTD (2001) FWLR (PT.60) 1597 AT 1608. Counsel referred to the evidence on record, he submitted that

after the payment of the overdraft facility granted to the appellant, the respondent were bound to return the appellant’s documents used as collateral for the facility but for no justifiable reason, the respondent refused, failed and/or neglected to return the Union Bank certificates until 1/2/2006 after the commencement of the suit at the Court below and only 5 of the 6 certificates were returned. He argued that assuming without conceding that the respondent discovered that the certificates were misplaced or issued in error, the only option for the respondent was to report the same to the appellant which they never did. He argued further that failure to report the misplacement of the certificates in the Union Bank’s office to the appellant pointed irresistibly to the fact that the refusal of the respondent to return the certificates after a formal demand was deliberate but inspite of the overwhelming evidence before the Court which irresistibly pointed to the fact that the respondent unjustifiably detained the appellant’s share certificates, the Court below held that the respondent did not wrongfully detain the appellant’s

share certificates and therefore not liable for detinue.

In response, the respondent’s counsel submitted that the essence of liability for tort of detinue is the continued unlawful detention of a plaintiff’s property by the defendant after a proper demand has been made for its return. He referred to BLACK’S LAW DICTIONARY, DELUXE NINETH EDITION, PAGE 515. IRORO V. ETABUKO & ANOR. (2018) LPELR-44189 (CA). He further submitted that the share certificates were not wrongfully withheld by the respondent because at the time the appellant made his purported demand for the return of the certificates, there was no way the certificates could have been returned as they were reported missing while in the custody of Union Bank Registrars to the knowledge of the appellant. He contended that the respondent to show good faith made every effort to ensure that the certificates were re-issued and when they were reissued, they were returned to the appellant except certificate no.004488 which according to Union Bank was issued in error in the first place. He submitted that the respondent cannot be asked to do the impossible by returning

certificate no.004488 which has since been replaced with a different certificate to the knowledge of the appellant. He referred to KOSILE V. FOLARIN (1989) 3 NWLR (PT.107)1 AT 9 where the Supreme Court held that the law will never impose upon or impute unto a man a duty that will prove impossible for him to perform. He referred to LUFTHANSA GERMAN AIRLINES V. ODIESE (2006) 7 NWLR (PT.978) 34 AT 78. OWENA BANK PLC V. OLATUNJI (SUPRA).

RESOLUTION
The law is trite that the evaluation and ascription of probative value to the evidence led is the primary duty of the trial Court. Contrary to the contention of the appellant’s counsel that the Court below did not properly evaluate the evidence, the Court below performed its duty creditably well and strictly in accordance with the law. The Court did a detailed analysis and evaluation of the evidence of both parties, both oral and documentary. For legally justifiable reasons the Court believed the evidence of the respondent. In respect of the alleged refusal of the respondent to return the Union Bank Share Certificates after the demand by the appellant, the Court at pages 248 -249 of the

record made the following finding and conclusion:
“The plaintiff’s counsel admitted that the defendant through its counsel returned all but one of the said Union Bank share certificates, that Union Bank share certificate No. 004488 is yet to be returned by the defendant to the plaintiff till date. But the evidence which I have evaluated above especially exhibit O is proof that the submission of counsel that Union Bank share certificate No. 004488 is yet to be returned by the defendant to the plaintiff till date is not correct.
Since statement of account attached to exhibit O shows that the said Union Bank shares of 1500 was lodged into plaintiff’s central securities clearing system account No. 207292OR on 29-11-94 the plaintiff was not denied access to funds by the actions of the defendant as all accrued dividends and bonuses were received by the plaintiff as evidenced in that his central securities clearing system account.
Plaintiff therefore did not suffer any financial loss arising from the said Union Bank shares since the shares were lodged in his central securities clearing system account since 29-11-94. I also hold the

view that defendant acted in utmost good faith by exchanging correspondences and explaining issues as they arose in their transaction with the plaintiff.”

The finding and conclusion of the Court below is unassailable because the salient facts which are germane to the determination of this appeal were not in dispute at all. The facts are as follows: 1) The appellant deposited his certificates with the respondent as collateral for the overdraft facility granted to him. 2) The respondent with the authority and consent of the appellant forwarded the share certificates to the Union Bank Registrars for verification. 3) The Registrars in turn informed the appellant that his share certificates were forwarded to them for verification. 4) In the course of verification it was discovered that certificate number 004488 issued for 150 units was issued in error. The certificate was cancelled. 5) The other certificates were misplaced by the Registrars and the respondent informed the appellant of the situation and the appeal for time by the Registrars to enable them produce the certificates or print new ones. 6) The Registrars re-issued the certificates and returned

them to the respondent except the certificate no.004488 which was cancelled having been issued in error. 7) On investigation by the respondent’s stock brokers, it was discovered that the appellant’s CSCS account no. C2072920R had been credited with 1500 units. 8) The appellant confirmed that as at the time he paid the overdraft facility, the certificates were still with the Union Bank Registrars. All the above facts were clearly established mostly by the documents tendered by the appellant himself and his viva voce evidence under cross-examination.

or
(c) against a bailee who has negligently lost or otherwise wrongfully failed to return goods bailed to him, but not where the goods were merely misused or restored in a damaged condition.
(2) “Action for detention “has the same meaning as “action for detinue.”
The meaning and nature of an action in detinue has also been stated in a plethora of cases. See LABODE V. OTUBU ( SUPRA), (2001) LPELR-1731(SC) AT 18 (B-C) where the Supreme Court per Uwais, J.S.C. stated thus:
“Detinue is defined to be a wrongful detention of a plaintiff’s chattel by a defendant, which is evidenced by the refusal of the defendant or his agent to deliver the chattel up on demand – see Alicia Hosiery Ltd. v. Brown, Shipley & Co., (1970) 1 Q.B. 195.”
In IHEANACHO & ANOR. V. UZOCHUKWU & ANOR. (1997) LPELR-1460 (SC) AT 13-14 (G-A), the Supreme Court per IGUH, J.S.C. held that:
“At common law, a claim in detinue lay at the suit of a person who has an immediate right to the possession of the goods in issue against another who is in actual possession of them, and who, upon proper demand, failed or refused to

deliver them up without lawful excuse. See: Alicia Hosiery Ltd. v. Brown Shipley & Co. Ltd. (1970) 1 QB 195 at 207; Garrett v. Arthur Churchill (Glass) Ltd. (1970) 1 QB 92.”
See also BENIN RUBBER PRODUCERS CO-OPERATIVE MARKETING UNION LTD. V. OJO & ANOR. (1997) LPELR -772 (SC) AT 27 (E-F). JULIUS BERGER (NIG.) LTD. V. OMOGUI (2001) LPELR-1638 (SC) AT16 (C-D). NACENN NIG. LTD. V. BEWAC AUTOMATIVE PRODUCERS LTD. (2011) LPELR-8125 (SC) AT 17-18 (C-A). From the statutory and case law definition of detinue, for a plaintiff to succeed in an action for detinue the following facts must be established: 1) that the defendant is in actual possession of the chattel or goods. 2) That a demand has been made for its return. 3) That the defendant has refused to deliver the chattel. 4) That the refusal to deliver the chattel after the demand is without a lawful excuse. Where the plaintiff is unable to prove that the appellant has refused to deliver the chattel, an action in detinue must fail. Where the plaintiff proves that the defendant has refused to deliver the chattel but fails to prove that the refusal was without a lawful excuse, the action will fail.

In essence, all the four elements of an action in detinue must co-exist and must be established to the satisfaction of the Court for the plaintiff to succeed in an action for detinue. Where the plaintiff fails to prove any of the above elements, an action in detinue is bound to fail. See J.E. OSHEVIRE LTD. V. TRIPOLI MOTORS (1997) LPELR-1584 (SC) AT 29 (A-D) where the Supreme Court per ONU, J.S.C. referred to Udechukwu v. Isaac Okwuka (1956) SCNLR 189; (1956) 1 F.S.C 70 at 71 and held that:
“The Federal Supreme Court in a situation analogous to the one in hand in the case of Udechukwu v. Okwuka (supra) said:- “What must be established in a suit of detinue is wrongful detention by the defendant that is to say the defendant must have shown an intention to keep the car in defiance of the plaintiff. This is shown by proving a demand and a refusal to deliver. When however, the refusal is conditional it does not necessarily show withholding the chattel against the will of the plaintiff, proving that the condition is reasonable and not merely a device to put off the plaintiff.”
Applying the above principles to this case, there was no refusal by the

respondent to return the appellant’s share certificates. With the admission of the appellant that the certificates were in fact not with the respondent when he liquidated the overdraft, they were still with the Union Bank Registrars, the question of refusal by the respondent did not arise at all and the appellant’s case collapsed. It is also clear that the respondent were very transparent with their actions in respect of the verification of the certificates and the steps taken to ensure that the certificates misplaced by the Registrars were re-issued. The statement of the appellant’s CSCS account attached to exhibit “O” is a clear evidence that the 1500 shares which ought to have been covered by the certificate which was cancelled was credited into the CSCS account of the appellant on 29/11/1994. There was absolutely no evidence or reason for the Court below to conclude that the respondent refused to release the appellant’s share certificates or deliberately withheld them. In CHIGBU V. TONIMAS NIG.LTD & ANOR. (2006) LPELR-846 (SC) AT 28 (D-E) the Supreme Court per Tobi, JSC held that:
“Before an action on

detinue can be filed, two acts must be present; one from the plaintiff and the other from the defendant. The plaintiff must make a formal demand for the return of the goods or chattel. The defendant must refuse to return the goods or chattel. And so an action in detinue cannot be founded only on the demand by the plaintiff without a corresponding refusal.”

The law is trite that an appellate Court cannot disturb the findings of a trial Court where the evidence is properly evaluated and all the principles of law relevant to the issue are properly considered as the Court below did in this case. See GUARDIAN NEWSPAPERS LTD. & ANOR. AJEH (2011) LPELR-1343 (SC) AT 13-14 (E-B). Considering the entire evidence and circumstances of this case and the relevant law, the finding of the Court below that a case of detinue was not made out by the appellant is correct and cannot be disturbed. A contrary decision would have been a miscarriage of justice. Issue 1 is resolved against the appellant.

On issue 2, the appellant’s counsel submitted that in a claim for detinue, the plaintiff is entitled to damages for loss arising from his inability to make

use of his goods and if the plaintiff is able to show that he suffered special damages by the detention of his goods, the special damages is recoverable. He referred to ENTERPRISE BANK LTD. V. AROSO (2014) 3 NWLR (PT.1394) 257. UMORU V. IJUMU L.G.C. (2010) 7 NWLR (PT.1192) 1. He referred to the evidence of the appellant (PW1) that he could not trade the shares covered by the share certificates when he needed to raise funds and could not obtain loans to execute the orders given to him as evidenced by various LPOS tendered as exhibits K-M17. He submitted that the Court below erred by refusing to grant any of the reliefs sought by the appellant on the ground that the appellant failed to prove by cogent and reliable evidence on balance of probability the loss he suffered by the action of the respondent when the respondent failed to lead any rebuttal evidence in respect of the injuries suffered by the appellant.

In response, the respondent’s counsel referred to the evidence of the appellant that he consented to the forwarding of his share certificates to Union Bank Registrars for verification and that the Registrars wrote and informed him about the

verification, that the certificates were still with the registrars as at the time he liquidated the overdraft, that it was when the certificate no.004488 were sent for verification that it was discovered that it should be for 1500 units instead of 150 and exhibit “O” which shows that the 1500 shares were lodged into the appellant’s account on 29/11/94. He submitted that the appellant failed to lead any evidence to show that he approached the appellant or any other financial institution for grant of credit facility and was turned down because of the non-availability of his Union Bank share certificates. He finally submitted that the appellant failed to prove by cogent and credible evidence that he suffered any loss due to the respondent’s action.

In his reply, the appellant’s counsel argued that assuming without conceding that the appellant was unable to prove the loss he suffered, it is settled that law that in an action for the tort of detinue, once wrongful detention after a demand is proved, the plaintiff is entitled to damages for unlawful detention. He referred to KOSILE V. FOLARIN (SUPRA). FIDELITY BANK PLC V. KATES ASSOCIATED IND. LTD.

(2012) LPELR-9790(CA).

RESOLUTION
In J.E. OSHEVIRE LTD. V. TRIPOLI MOTORS (SUPRA) AT 20-22 (F-A) the Supreme Court per ONU, J.S.C. stated the remedies available to a plaintiff in an action for detinue as follows:
“It has been held by this Court in Weidman & Walters (Nigeria) Ltd. v. Mojibola Oluwa & ors. (1968) 1 All NLR 383 in which the case of General Finance and Facilities Ltd. v. Cooks Cars (Romford) Ltd. (1963) 1 WLR 664 at 650-651 (per Diplock, L J.) was cited with approval, that a plaintiff who has a right of action in detinue has three remedies open to him and it is up to him to decide which option of the following to take:-(a) Claim for value of the chattel and damages for its detention. The value of the chattel is as proved at the time of judgment at the trial Court and the onus is on the plaintiff to prove the value. He is also to show by evidence the damage suffered by the detention; (b) Claim for the return of the chattel and damages for its detention; (c) Claim for the return of the chattel or its value as assessed, and damages for its detention. This option appears to be the best form of action for if

the chattel has otherwise been removed from jurisdiction or hidden away and out of the sight of the sheriff there is no alternative other than a distrait for the value of the chattel as assessed plus damages for its detention. See also Alidu v. Manu (1944) 10 WACA 217; Okoroji v. Ezumah (1961) All NLR 183; Christopher Udechukwu v. Isaac Okwuka (1956) SCNLR 189; (1956) 1 F.S.C. 70 at 71 and Sachs v. Miklos (1948) 2 K.B.23”
See also ORDIA V. PIEDMONT ING. LTD (1995) LPELR-2753(SC) AT9-10 (D-B). JULIUS BERGER (NIG.) LTD. V. OMOGUI (SUPRA) AT 28 (B-E). NACENN NIG. LTD. V. BEWAC AUTOMATIVE PRODUCERS LTD. (SUPRA) AT 17-18(C-A). On pages 246-249 of the record, the Court below properly evaluated the evidence led and arrived at the following conclusion at pages 249-250 of the record held that:
“I agree with learned defendant’s counsel submission that the mere tendering of the local purchase orders that is exhibits J-J5, K-K31, L-L16, M-M17 without showing that his inability to execute them was a natural consequence of the delay in returning his share certificates by the defendant is of no moment.
The plaintiff failed to prove by cogent

and reliable evidence on a balance of probability the loss he suffered by the action of the defendant to enable this Court grant his claims in paragraphs 28 and 35 of his statement of claim.
The plaintiff’s case put side by side with that of the defendant is most improbable. The imaginary scale tilts against the plaintiff, his claims is therefore dismissed in its entirely.”
The verdict of the Court is amply supported by the evidence led and the law. As stated earlier in this judgment, the gravamen of the tort of detinue is the wrongful retention of the chattel. Mere retention without a lawful excuse is enough to ground a case of action in detinue but a successful plaintiff will only be entitled to nominal damages unless the chattel is an article of trade and the plaintiff is able to show that he suffered losses as a result of the unlawful retention of his chattel. However, the firm position of the law is that an action in detinue cannot be founded only on the demand by the plaintiff without a corresponding refusal. The appellant not only failed to prove the retention or refusal of the respondent to release the shares, he failed to

prove that he suffered any loss. Having failed to prove the retention of the share certificates by the respondent, he is not entitled to even nominal damages.

The action of the appellant has no basis in law. It is an exercise of gold-digging. Issue 2 is resolved against the appellant.

In conclusion, I find that this appeal is totally devoid of merit. It is hereby dismissed. There shall be #100,000:00 (0ne hundred thousand naira costs in favour of the respondent and against the appellant.

IGNATIUS IGWE AGUBE, J.C.A.: I agree.

ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, Misitura Omodere Bolaji-Yusuff, JCA just delivered. I am in agreement with the decision reached and the reasoning behind the decision.

For the detailed reasons adumbrated in the lead judgment, I too, hold that the appeal lacks merit. Same is equally dismissed. I abide by the order as to cost made in the lead judgment.

Appearances:

O. Nwokeiwu For Appellant(s)

Jane U. Ogba-Ndukwe holding the brief I. A. Akaraiwe For Respondent(s)