NIGERIAN BOTTLING COMPANY PLC V. DAVID OKAFOR (2010)

NIGERIAN BOTTLING COMPANY PLC V. DAVID OKAFOR

(2010)LCN/4086(CA)

In The Court of Appeal of Nigeria

On Monday, the 6th day of December, 2010

CA/PH/200/2000

RATIO

DETINUE: WHAT AN ACTION IN DETINUE ENTAILS; WHAT A PLAINTIFF MUST PROVE IN ORDER TO SUCCEED IN AN ACTION IN DETINUE AND WHETHER AN ACTION IN DETINUE CAN LIE FOR WRONGFUL DETENTION

According to BULLEN & LEAKE AND JACOBS,- PRECEDENTS OF PLEADINGS Sweet and Maxwell 12th ed. (1975) at Page 359: The injurious act (in detinue) being the Wrongful detention of the goods and not the original taking or obtaining of possession, it is immaterial whether they were obtained by the defendant by lawful means, as by a bailment or finding or by a wrongful act, as by trespass or conversion the usual evidence of detention is that the Defendant, having possession or control over the goods, does not deliver them to the Plaintiff when demanded. where there was neither demand nor refusal no action lay. See also: CLERK AND LINDSELL ON TORTS, 1983 Sweet And Maxwell (14th ed.) paragraph 1177 page 717. The tort of detinue under the English Common Law is not different under the Nigerian law or jurisprudence. In BENIN RUBBER PRODUCERS CO-OPERATIVE MARKETING UNION LTD v. OJO & ANOR (1997) 9 NWLR [pt.521] 388 at 408 G the Supreme court per Iguh JSC states that – An action in detinue is based upon a wrongful detention of the Plaintiff’s chattel by the Defendant, evidenced by the refusal of such Defendant or his agent to deliver up on demand. The facts the Plaintiff must prove in his action in detinue are therefore i. The Plaintiff owns or has possession of some chattel. ii. The chattel has got into defendant’s possession. iii. The Plaintiff had made demand on the Defendant for the return of the chattel. iv. The Defendant refused to comply with the demand for the return of the chattel It is immaterial, from the authorities, how the goods/chattel came into the Defendant’s possession. Action in detinue does not lie for wrongful detention unless the Defendant’s possession is adverse. See CLERK & LINDSELL (supra) paragraph 1177. PER EJEMBI EKO, J. C. A.

CIRCUMSTANCES WHERE AN APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF FACTS MADE BY THE TRIAL COURT

The finding is not perverse’ It is trite that appeal court will not interfere with findings of fact made by the trial court, unless such findings of fact are perverse or not supported by evidence on record. See MINI LODGE v. NGEI (2010) 41 NSCQR 1 at 35; AJIBULU v. AJAYI (2004) 11 NWLR [pt.885].158 at 476, OGIDI v. THE STATE (2003) 9 NWLR [pt.824] 1. ordinarily, the appeal court does not make it a practice to disturb findings of fact of the trial court, unless the findings are shown to be perverse OTUEDON v. OLUGBOR (1997) 9 NWLR [pt.521] 355 at 375 IBODO v. ENAROFIA (1980) S -7 SC 25. PER EJEMBI EKO, J. C. A.

DETINUE: WHETHER THE COURT CAN AWARD SUBSTANTIAL SUM, AS GENERAL DAMAGES, IN FAVOUR OF THE PLAINTIFF IN A CLAIM FOR DETINUE

I have read ODUMOSU v. A.C.B. (supra), also reported in (1976) 2 FNLR 229. Idigbe JSC, who read the opinion of the court, stated at page 236 that “a claim in detinue is basically for return of the specific chattel detained for unlawful detention may, if any is established, be awarded (for they are not to be presumed in this type of action); and even then they are, generally, nominal, unless the evidence establishes a case for substantial award under the head of damages.” Idigbe, JSC did not state in absolute terms that in all actions in detinue the measure of general damages the court can award to the Plaintiff is nominal. If evidence establishes, as in the case, substantial pecuniary loss as a result of the wrongful detention of the chattel the court is entitled, in its discretion, to award substantial sum, as general damages, in favour of the Plaintiff. English courts had awarded damages in actions in detinue on the basis that the loss to the Plaintiff “is the natural and direct result of the wrong. See RE SIMMS (1934) 1 Ch.1; CLERK & LINDSELL ON TORTS 12 ed. Paragraph 1150 at page 706. Ubi jus, ibi remedium therefore remains the rule. PER EJEMBI EKO, J. C. A.

WHETHER DAMAGES FOR ACTION IN DETINUE INCLUDE DAMAGES FOR SUBSEQUENT WRONGFUL DETENTION UNTIL REDELIVERY

Damages for action in detinue include not only those for the original detention, but also damages for subsequent wrongful detention until redelivery. See BULLEN AND LEAKE AND JACOB’s PRECEDENTS OF PLEADINGS (supra) (1975 ed) page 359. PER EJEMBI EKO, J. C. A.

INTERFERENCE WITH THE DISCRETION OF THE LOWER OF COURT: CIRCUMSTANCES WHERE THE APPELLATE COURT WILL INTERFERE WITH THE AWARD OF DAMAGES MADE BY THE LOWER COURT

Where the trial court, in its discretion, has proceeded to award damages; this Court is reluctant to exercise such power and will not do so unless it is established that the trial Judge proceeded upon a wrong principle of law, or that his award was clearly an erroneous estimate. This Court will not intervene merely because it might feel disinclined to agree with the amount awarded as an amount which it might itself have awarded. See ZIK’s PRESS LTD v. ALVAN IKOKU (1951) 13 WACA; U.B.N. v. ODUSOTE BOOKSTORE (1995) 9 NWLR [pt.421] 558; A.C.B. LTD v. APOGU (2001) 5 NWLR [pt. 207] 652; OYENEYIN v. AKINKUGBE (2010) 41.1 NSCQR 416 at442. PER EJEMBI EKO, J. C. A.

DETINUE: ELEMENTS THAT MUST BE PROVED BY THE CLAIMANT FOR A CLAIM IN DETINUE TO STAND

For a claim in detinue to stand the claimant must prove- (a) that he is the owner of the chattel. (b) he has immediate right to possession (c) the defendant was in actual possession of the chattel (d) the claimant had made a proper demand on the defendant to deliver up the chattel to him and (e) the defendant had without lawful excuse refused or failed to deliver up the chatter to the claimant. See (i) SALTBA v YASSIN (2002) 4 NWLR (PT: 756) 1 (ii) IHEANACHO v. UZOCHUKWU (1997) 2 NWLR (PT. 487) 257. PER T. O. AWOTOYE J. C. A.

JUSTICES

ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria

EJEMBI EKO Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

NIGERIAN BOTTLING COMPANY PLC Appellant(s)

AND

DAVID OKAFOR Respondent(s)

EJEMBI EKO, J. C. A. (Delivering the leading judgment): At the High Court of Rivers State (Coram: Mary U. Odili J, as she then was) the Respondent, as the Plaintiff, sued the Appellant claiming –
a. The sum of N1, 176, 000.00 being and representing special damages for loss of use of his vehicle RV 4879 PA scania trailer from the 13th day of January, 1995 to the 30th day of June, 1995 and thereafter N7,000.00 per day until judgment is delivered.
b. General damages in the sum of Two Million and order compelling the defendant to return the said vehicle in good working condition.
The action was essentially in detinue.
Parties exchanged pleadings. The cause of action is that the Appellant, the Defendant, employed the services of S.J. Nsa, trading under the name and style of Nsa Brothers Trading company “to engage in the haulage of their products from Trans-Amadi Depot to different locations Rivers State.”The said S.J Nsa had no truk of his own. He allegedly engaged “the Plaintiff to perform the said haulage services using his trailers including no RV4879 PA owned by the plaintiff” between June, 1994 and 12th January, 1995. The plaintiff averred that in January, 1995 he employed one Lazarus Uzoh as a driver to operate the said truck no RV 4879 PA. On 9th January 1995 the truck was loaded with 1000 crates of the Defendant/Appellant’s products for delivery at Ahoada Depot. The said Lazarus Uzoh allegedly stole the 1000 crates of the Defendant’s products and absconded. He abandoned the truck on the highway. The police arrested the Plaintiff in course of their investigation. It is further averred in the statement of claim that –
10. While the Plaintiff was being detained at the police cell the Defendant moved the Plaintiff’s trailer RV 4879 PA to its premises at Trans-Amadi Industrial Estate and the same has been detained thereat.
11. After the Plaintiff was released from the police cell he confronted the Defendant and demanded the release of his vehicle out-the Defendant refused. Soon after his release the Plaintiff affected the arrest of Mr. Lazarus Uzoh in Lagos which arrest was the Plaintiff’s expense.
13. Soon after the arrest of Mr. Lazarus Uzoh the Plaintiff renewed his appeal to the Defendant to release his vehicle in order to mitigate his losses resulting from lack of use but the Defendant again refused to release the said vehicle.
14. Having testified (in the criminal charge against Lazarus Uzoh) on or about the 27th April, 1995 the Plaintiff consulted his counsel who on the 11th day of May’ 1995 wrote to the Defendant demanding who received the letter on or about the 15th day of may, 1995 failed refused or neglected to make a reply or comply with the demand contained therein. The said letter including the evidence of postage is herein pleaded and will be relied upon at the hearing.
15. Ever since the 13th day of January,1995 when the Defendant seized the plaintiffs said vehicle the plaintiff has not been able to generate any income therefore. That the said vehicle is still parked in the premises of the Defendant at Trans-Amadi Industrial Layout
The Defendant denied these allegations in the statement of defence, and emphasized that they did not seize the said vehicle and that they never ever refused to release the said vehicle to the Plaintiff. In another breadth the defence averred that:
even if the court finds as a fact (which is not conceded) that the Defendant siezed the plaintiff’s vehicle on the 13th day of January, 1995, the Defendant avers that the vehicle was seized in exercise of the right of lien on the said vehicle which the Defendant is entitled to.
This plea of lien is in consequence of the loss of Defendant’s 1000 crates of products valued at N340,000.00. To emphasize the point that they neither seized nor refused to release the Plaintiff’s truck on demand the Defendant averred in paragraph 11 of the statement of defence that the –
Plaintiff is free to remove (his) trailer which is a nuisance in the Defendant premises from the said demanding premises.
At the trial, the Plaintiff called three witnesses, including himself in proof of his allegations. Two witnesses testified for the defence. A total of five (5) documents were produced in addition and admitted as exhibits. At the close of evidence the parties, through their respective counsel, exchanged written addresses. On 3rd December, 1997 the trial court entered judgment for the Plaintiff and ordered the Defendant, now Appellant,
i. to pay N2,000,000.00 as general damages to the plaintiff, and
ii. to put plaintiffs vehicle in a roadworthy condition within 3 months and have the same returned to the plaintiff.
The trial court dismissed Plaintiffs claim of special damages. It also dismissed Defendant’s Third Party claims. It is this judgment that has prompted this appeal. By leave granted on 14th February, 2006 the Appellant amended his original notice of appeal. He now has 6 grounds of appeal. out of these six grounds of appeal the Appellant has formulated three (3) issues for determination as follows –
1. Did the Plaintiff Prove detinue?
2. Was the learned trial Judge right in coming to the conclusion that the Plaintiff was entitled to general damages?
3. Is the sum of N2, 000,000.00 general damages awarded by the learned trial Judge to the Plaintiff reasonable in the circumstance of the case?
For the Plaintiff/Respondent three issues have been formulated.
There are:-
i. whether the facts of this case support a claim in detinue or trespass and whether the Respondent had proved any infraction on his possessory right in and over the vehicle the subject matter of his suit (Grounds 1 and 2 of the Amended Notice of Appeal)
ii. Whether the learned trial Judge was right in coming to the conclusion that the Plaintiff was entitled to general damages and if so whether the sum of N2, 000,000.00 was reasonable (Grounds 3 and 5 of Amended Notice of Appeal).
iii. whether this appeal is competent considering the non fulfillment of conditions of appeal?
The Respondent has not formulated any issue from grounds 4 and 6 of the Amended Notice of Appeal. The third issue formulated by the Respondent is rather curious. It wears the garb of preliminary objection. I think I should treat thus. But is that how to do it under the 2007 Rules of this court? Order 10, Rules 1 and 3 of the Court of Appeal Rules, 2007 are clear and unambiguous in providing that –
1. A respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of the objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time.
2 …
3. If the respondent fails to comply with this Rule, the Court may refuse to entertain the objection or may adjourn the hearing thereof at the costs of the respondent or may make such other order as it thinks fit.
The Respondent did not file any notice of preliminary objection. By this dereliction he has incurred the sanction under Order 10 Rule 3. We have the discretion to proceed in any of the three ways listed therein. The least line of resistance, as I see it from the entire circumstance of the appeal, is the first option. That is, our refusal to entertain the objection. Accordingly, I hereby discountenance the objection, couched as issue 3 by the Respondent. Equity follows the law. And in its simplicity, it will not countenance a respondent who founds on legal technicality without complying with the due process of the law. He who comes to equity must come with clean hands.
I find the Appellant’s issues much easier to follow. And that is what I will do.
The question under Appellant’s’ issue no 1 is whether the Plaintiff, proved detinue? The learned trial Judge found at page 84 of the Record that “there was seizure by the Defendant of the Plaintiff’s vehicle and a detention” of the said vehicle thereafter without the Plaintiff’s consent. The hand of the learned trial Judge was strengthened in this reegard by paragraph 15 of the statement of defence wherein the Defendant/Appellant pleaded lien, and that “the vehicle was seized in exercise of the right of lien on the said vehicle which the Defendant is entitled to.”This is a plea of justification. The effort of the defence counsel at damage control, in submitting that since the defence did not lead evidence on lien, the plea had been abandoned, did not impress the trial Judge, and rightly too. The defence may have failed to discharge the burden of proving their assertion, as required by sections 135 – 137 of the Evidence Act. That failure, however,, does not affect the efficacy of the formal admission in the defence pleading. Section 75 of the Evidence Act is very clear. 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 rule of pleading in force at the time they are deemed to have admitted by their pleadings. The seizure of the vehicle, either lawfully or wrongfully, is a fact in issue in this suit No further proof of this seizure, admitted in paragraph 15 of the statement of defence, is necessary as it ceases to be in dispute or an issue between the parties. See DIN v. AFRICAN NEWSPAPERS OF NIGERIA LTD (1990) 3 NWLR [pt.139] 392 at 405 A – C. This class of proof is the strongest as this Court so held in IGWE v. A.C.B. PLC (1999) 6 NWLR [pt605] 1 at 11 C.
The Appellant submits that the trial Judge erred when she held at page 85 of the Record that she had
No difficulty in finding that (1) there was an “unlawful detention” and (2) that there was a demand rebuffed by the Defendant.
It is their contention that the tort of detinue defined by the authorities had not been committed. According to BULLEN & LEAKE AND JACOBS,- PRECEDENTS OF PLEADINGS Sweet and Maxwell 12th ed. (1975) at Page 359:
The injurious act (in detinue) being the Wrongful detention of the goods and not the original taking or obtaining of possession, it is immaterial whether they were obtained by the defendant by lawful means, as by a bailment or finding or by a wrongful act, as by trespass or conversion the usual evidence of detention is that the Defendant, having possession or control over the goods, does not deliver them to the Plaintiff when demanded. where there was neither demand nor refusal no action lay.
See also: CLERK AND LINDSELL ON TORTS, 1983 Sweet And Maxwell (14th ed.) paragraph 1177 page 717. The tort of detinue under the English Common Law is not different under the Nigerian law or jurisprudence. In BENIN RUBBER PRODUCERS CO-OPERATIVE
MARKETING UNION LTD v. OJO & ANOR (1997) 9 NWLR [pt.521] 388 at 408 G the Supreme court per Iguh JSC states that –
An action in detinue is based upon a wrongful detention of the Plaintiff’s chattel by the Defendant, evidenced by the refusal of such Defendant or his agent to deliver up on demand.

The facts the Plaintiff must prove in his action in detinue are therefore
i. The Plaintiff owns or has possession of some chattel.
ii. The chattel has got into defendant’s possession.
iii. The Plaintiff had made demand on the Defendant for the return of the chattel.
iv. The Defendant refused to comply with the demand for the return of the chattel
It is immaterial, from the authorities, how the goods/chattel came into the Defendant’s possession. Action in detinue does not lie for wrongful detention unless the Defendant’s possession is adverse. See CLERK & LINDSELL (supra) paragraph 1177.

I had held that from paragraph 15 of the statement of defence that the Appellant had admitted the seizure of the Plaintiff/Respondent’s vehicle no RV 4879 PA. The vehicle therefore had moved from the possession of the Plaintiff to the possession of the Defendant.
To complete the remaining elements of detinue, the Plaintiff/Respondent pleaded in paragraphs 11 and 13 of the statement of claim that he “confronted the Defendant and demanded the release of his vehicle but the Defendant refused”, and that he “renewed his appeal to the Defendant to release his vehicle – but the Defendant again refused to release the vehicle.” Did he prove these?
The Defendant/Appellant submits that the plaintiff failed to discharge this burden placed on him by dint of sections 135-137of the Evidence Act.
The pw.1, the Plaintiff, testified at page after his arrest and detention by the police he went to the Defendant’s company and I saw my vehicle there with registration No. RV 4879 PA, a trailer. I met the plant Manager for the release of my vehicle. He said he they were not going to release it. — the police after investigation charge the driver to court. I gave evidence in that case. I went back to the Defendant for the release of my trucks but they still held tight to their decision to keep the trailer.
The pw.1 was vigorously cross-examined for two days-pages 20-22 of the Record. The foregoing evidence-in-chief was left unscathed I have read the pw.1’s entire evidence. The cross-examination did nothing to shake him a little bit on this damaging piece of evidence that he demanded the release of his truck from the Defendant and the Defendant through its agents refused to release the vehicle. The learned trial Judge had no difficulty, at page 85 of the Record, finding that there was an unlawful detention and that there was a demand, rebuffed by the Defendant.” This is a finding upon a credible evidence on Record. The finding is not perverse’ It is trite that appeal court will not interfere with findings of fact made by the trial court, unless such findings of fact are perverse or not supported by evidence on record. See MINI LODGE v. NGEI (2010) 41 NSCQR 1 at 35; AJIBULU v. AJAYI (2004) 11 NWLR [pt.885].158 at 476, OGIDI v. THE STATE (2003) 9 NWLR [pt.824] 1. ordinarily, the appeal court does not make it a practice to disturb findings of fact of the trial court, unless the findings are shown to be perverse OTUEDON v. OLUGBOR (1997) 9 NWLR [pt.521] 355 at 375 IBODO v. ENAROFIA (1980) S -7 SC 25.

The plant Manager of the Defendant/Appellant testified as DW.2. It is apparent from pages 84 and 85 of the Record that the learned trial Judge properly evaluated the evidence of the Dw.2 vis-a-vis that of pw.1 before settling for the evidence for the plaintiff and concluding that the evidence of the plaintiff is more credible than the defence evidence in this regard and it is supported by the weight of evidence. He has absolute discretion in this business of which evidence to believe or disbelieve upon proper evaluation in accordance with the rule in MOGAJI v. ODOFIN (1978) 4 SC 91, applied in AJIBULU v. AJAYI (supra) at 463. The finding that the Plaintiff had proved his action in detinue against the Defendant/Appellant is unassailable. I will not disturb it.

Appellant, on issues 2, submits that general damages for unlawful detention are not, in law, presumed. And that if they are the damages are nominal, unless evidence establishes a case for substantial award. The authority for this proposition is said to be ODUMOSU v. A.C.B. LTD (1976) NSCC 635 at 642. Appellant further submits that the learned trial Judge, on the available evidence, should have only awarded nominal damages and not N2, 000.000.00 as general damages.
The evidence on the printed record shows that for the same vehicle the Defendant/Appellant was paying the Plaintiff N7, 000.00 dairy. Evidence on printed record further reveals that the Plaintiff
demanded the Defendant to release the vehicle several times and that the rafter had the vehicle detained for several days until the statement of defence was filed on 11th July, 1995 wherein the Defendant averred that the Plaintiff was free to remove the trailer.
I have read ODUMOSU v. A.C.B. (supra), also reported in (1976) 2 FNLR 229. Idigbe JSC, who read the opinion of the court, stated at page 236 that
“a claim in detinue is basically for return of the specific chattel detained for unlawful detention may, if any is established, be awarded (for they are not to be presumed in this type of action); and even then they are, generally, nominal, unless the evidence establishes a case for substantial award under the head of damages.”
Idigbe, JSC did not state in absolute terms that in all actions in detinue the measure of general damages the court can award to the Plaintiff is nominal. If evidence establishes, as in the case, substantial pecuniary loss as a result of the wrongful detention of the chattel the court is entitled, in its discretion, to award substantial sum, as general damages, in favour of the Plaintiff. English courts had awarded damages in actions in detinue on the basis that the loss to the Plaintiff “is the natural and direct result of the wrong. See RE SIMMS (1934) 1 Ch.1; CLERK & LINDSELL ON TORTS 12 ed. Paragraph 1150 at page 706. Ubi jus, ibi remedium therefore remains the rule.

The other complaint of the Appellant under issue 2 is that “the learned trial Judge was in no position to award any sum in general damages in favour of the plaintiff, particularly, after disallowing the Plaintiff’s claims for special damages.” This contention flies in the face of the concession that nominal damages are the nominal measure of the damages the trial court normally should award to the Plaintiff in action for detinue. I earlier pointed out that this same vehicle was immediately before, or previously to, the cause of action hired to the Defendant/Appellant at N7, 000.00 daily. The evidence of pw.1 on this was left unscathed. In addition, the wrongful detention of the vehicle, as the trial court found, lasted for several days. Damages for action in detinue include not only those for the original detention, but also damages for subsequent wrongful detention until redelivery. See BULLEN AND LEAKE AND JACOB’s PRECEDENTS OF PLEADINGS (supra) (1975 ed) page 359.

From available evidential materials at the disposal of the learned trial Judge, she was in a good position to award general damages in favour of the plaintiff beyond mere nominal damages. There was evidence of demand for return of, and refusal to return, the seized truck no RV 4879 PA, It was only by the statement of defence filed on 11th July, 1995 that the Defendant/Appellant opened its mouth to say that “the plaintiff is free to remove his trailer.”‘ From the moment the Defendant/Appellant’s possession of the Plaintiff’s trailer became adverse up to the date such adverse possession was relaxed there was wrongful detention of the said trailer. For the adverse possession or wrongful detention of the trailer the Plaintiff suffered or sustained loss that could naturally and directly be attributed to the wrongful detention in consequence of los of user. There is no dispute that the trailer was being used for commercial haulage of goods. Parties are ad idem on this.
It is obvious from pages 85 – 88 of the Record that the learned trial Judge took into consideration the pw.1’s uncontradicted evidence as to the loss of earnings he suffered as a result of the wrongful detention of his trailer by, and the refusal of, the Defendant to release the same to him. In my judgment, the learned trial Judge was right in coming to the conclusion that the Plaintiff, now respondent, was entitled to general damages. Issue 2 formulated by the Appellant is, therefore, hereby resolved against the Appellant.
The third and last issue is whether the sum of N2,000,000 00, awarded as general damages, was reasonable. This is also Respondent’s issue 2. Where the trial court, in its discretion, has proceeded to award damages; this Court is reluctant to exercise such power and will not do so unless it is established that the trial Judge proceeded upon a wrong principle of law, or that his award was clearly an erroneous estimate. This Court will not intervene merely because it might feel disinclined to agree with the amount awarded as an amount which it might itself have awarded. See ZIK’s PRESS LTD v. ALVAN IKOKU (1951) 13 WACA; U.B.N. v. ODUSOTE BOOKSTORE (1995) 9 NWLR [pt.421] 558; A.C.B. LTD v. APOGU (2001) 5 NWLR [pt. 207] 652; OYENEYIN v. AKINKUGBE (2010) 41.1 NSCQR 416 at442.

It is on this principle I shall proceed in my consideration of this issue.
The Plaintiff had a separate claim endorsed on the writ of Summons for N2,000,000.00 general damages. This same amount was what the learned trial Judge awarded as general damages in his favour, after dismissing the claim for special damages. In awarding this sum the learned trial Judge considered inter alia the period the vehicle was wrongfully in detention. That is from the date of its seizure (about 13th January, 1995) to the date the judgment was delivered on 3rd December, 1997. She did not consider paragraph 11 of the statement of defence filed on 11th July, 1995 wherein the Defendant intimated that the Plaintiff was free to remove his trailer from her premises. If she did, she would not have awarded as much as N2,000,000.00. I agree with the Appellant in the submission that the learned trial Judge completely disregarded the principle of mitigation of damages set out in BENIN RUBBER PRODUCERS CO-OPERATIVE MARKETING UNION LTD V. S.O. OJO & ANOR (supra) at page 414. On this, one should take into consideration that between January 13 1995 to July 11, 1995 is about 179 days and that for this period this truck, used as a commercial vehicle, was idle and detained from the Plaintiff/Respondent. It was not producing any income for the Plaintiff/Respondent, in consequence of its wrongful detention by the Defendant/Appellant. Appellant’s counsel in paragraph 4.3. 14 of Appellant’s Brief seems to say that
The Plaintiff is at best entitled to a maximum of 90 days earnings at whatever figures the Plaintiff proves is his daily loss of hire. For example, using the figure of N7,000.00 which the Plaintiff pleaded, but did not prove as his daily loss of hire income, the Plaintiff is entitled to a maximum compensation of N610,000.00.
It is however not true that the Plaintiff did not prove that he earned N7, 000.00 daily from hiring out the truck. At page 20 of the Record the Plaintiff, as PW.1, stated –
I want the court to order the Defendant to pay me N7, 000.00 every day from 13th January, 1995 until judgment is given in this case for loss of use of my truck. This was the amount the Defendant was paying me for using the vehicle daily.
This piece of evidence was neither challenged nor tested under cross-examination. It stands unscathed against the Defendant/Appellant. The Plaintiff has proved “his daily loss of hire” entitling him to general damages in this action in detinue. The loss of earning is substantial. Accordingly, I think an award of N700, 000.00 as general damages for the wrongful detention of the Plaintiff’s trailer No RV 4879 PA would be reasonable in the circumstance of the case.
The Plaintiff/Respondent unreasonably did not avail himself the opportunity offered to him by the Defendant to mitigate the damages. From 11th July, 1995, when the Defendant filed the statement of defence to the date of judgment on 3rd December, 1997 more than 28 months had elapsed without the Plaintiff taking steps to capitalize on Defendants volte face. The Plaintiff owes himself, the court and all concerned the duty to mitigate damages.
I resolve this issue in favour of the Appellant, against the Respondent. Apropos, the award of N2, 000.000.00 being unreasonable and the Plaintiff being also guilty of not mitigating the damages the said sum awarded as general damages shall be and is hereby reduced to N700,000.00.
The appeal succeeds in part. For the N2,000,000.00 awarded damages there shall be substituted therefore the sum lf N700,000.00. And that shall be the order of the trial court. Other consequential orders made by the trial court remain extant and are affirmed. Parties shall bear their respective cost.

ISTIFANUS THOMAS, J. C. A.: I read before now, the lead judgment of my learned brother, E EKO, JCA, just delivered, and I am in total agreement with the lead judgment that the trial Judge, did not consider the effect of paragraph 11 of the statement of defence which was pleaded at the lower court. The clear intendment of the aforesaid paragraph 11 of the Defendant/Appellant’s averment was that, the Plaintiff/Respondent, was lawfully, urged to come and remove his trailer from the premises. This was the intention to reduce or mitigate damages in the seizure of the trailer under detention. It is therefore not in dispute that the trial Judge did not apply the principle of mitigation of damages as espoused in the case of Benin Rubber Producers Co-operative Marketing Union Ltd V. S.O. OJO & AN (1997) 9 NWLR [pt.521] 388 at 414. If the trial Judge had applied the settled principle, the amount of general damages awarded would have been reduced to N700,000.00 and not N2 million as wrongfully granted.
Based on the little contribution and the fuller detailed findings and reasons in the lead judgment the appeal is partly allowed. I abide with the consequential orders including costs.

T. O. AWOTOYE J. C. A.: I have the privilege of reading in advance the draft of the judgment just delivered by my learned brother EJEMBI EKO JCA.
The plaintiffs claim in the first court was as per paragraph 16 of his statement of claim which reads:-
“16 WHEREFORE the plaintiff claims against the defendant:-
(a) The sum of N1, 176, 000.00 being and representing special damages for loss of use of his vehicle RV 4879 PA scania trailer from the 13th day of January, 1995 to the 30th day of June, 1995 and thereafter N17,000.00 per day until judgment is delivered.
(b) General Damages in the sum of Two Million Naira and an order compelling the defendant to return the said vehicle in good working condition.”
In paragraph 1 of the statement of claim the plaintiff claimed ownership of the vehicle trailer No. RV 4879 PA. The defendant admitted this in paragraph 1 of his statement of defence.
The trial court who saw and heard the witnesses believed the plaintiff but disbelieved the defence witness on the issue of demand the learned trial judge described the defence as “Lame” which “does not hold water.” The trial judge said in her judgment thus “I have no difficulty in finding that there was an unlawful detention and that there was a demand rebuffed by the defendant.”
Interference by an appellate court on findings of facts of the trial court only occurs when and when the lower court fails to evaluate such evidence at all or it fails’ to do so properly. see ABISI v. EKWEALOR (1993) 6 NWLR (pt. 302) 643; OBODO v. OGBA (1987) 2 NWLR (PT. 54) page 1; OGBECHIE v. ONOCHIE (NO2) (1998) 1 NWLR (PT. 70 page 970.
I have no reason to disturb the above finding of fact on the demand made by the plaintiff at the lower court. It is also not in dispute that the detained vehicle was being used for hire by the plaintiff. For a claim in detinue to stand the claimant must prove-
(a) that he is the owner of the chattel.
(b) he has immediate right to possession
(c) the defendant was in actual possession of the chattel
(d) the claimant had made a proper demand on the defendant to deliver up the chattel to him and
(e) the defendant had without lawful excuse refused or failed to deliver up the chatter to the claimant. See (i) SALTBA v YASSIN (2002) 4 NWLR (PT: 756) 1 (ii) IHEANACHO v. UZOCHUKWU (1997) 2 NWLR (PT. 487) 257.
I hold that from the evidence adduced at the trial court the claimant proved all these.
What is the measure of damages to award?
In STRAND ELECTRIC AND ENGINEERING CO. LTD, V. BRISFORD ENTERTATNMENTS (1952) 2QB 246 damages on basis of hiring charge was awarded for whole period of detention until judgment since the claim of the plaintiff was in detinue as in this case.
In view of the above and having gone through the reasoning’s and conclusion of my learned brother EKO JCA in his leading judgment, I award general damages of N700, 000.00 in place of
N2000, 000.00 awarded against the defendant the appeal succeeds in part, I also abide with the consequential orders made and that parties shall bear their respective costs.