AMAECHI AKUDO V. GUINNESS NIGERIA PLC. (2011)

AMAECHI AKUDO V. GUINNESS NIGERIA PLC.

(2011)LCN/4609(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 8th day of June, 2011

CA/B/138/2000

RATIO

ISSUE OF JURISDICTION: WHETHER A POINT OF LAW RAISING ISSUE OF JURISDICTION COULD BE RAISED AT ANY TIME AND AT ANY STAGE

…a point of law raising issue of jurisdiction could be raised at any time and at any stage. See: AKEGBEJO Vs ATUGA (1998) 1 NMLR (PART 534) P. 455 OSADEBAY Vs A.G. OF BENDEL STATE (1991) 1 NMLR P. 169 525 MADUKOLU Vs NKEMDILIM (1962) 1 ALL NLR 587 AT 595. PER GEORGE OLADEINDE SHOREMI, J.C.A

CONVERSION: WHETHER THE TERM “CONVERSION” CAN BE MEAN EITHER A CRIME OR CIVIL WRONG (TORT)

In OMIDIORA Vs ADEMILUYI (1997) 6 NWLR (Pt 508) At 294, 306. The court held: “The term “conversion” can mean either a crime or civil wrong (tort). In the present case in my view the plaintiff used the term against the appellant in it’s civil or tortures sense. Thus it was not an allegation of a criminal offence. PER GEORGE OLADEINDE SHOREMI, J.C.A

PROOF BEYOND REASONABLE DOUBT: MEANING OF “PROOF BEYOND REASONABLE DOUBT”AS USED UNDER SECTION 137(1) OF THE EVIDENCE ACT

DETINUE: MEASURE OF DAMAGES FOR THE CHATTEL DETAINED IN ACTION IN DETINUE

In the case of TRIPOLI MOTORS Supra it was decided that in addition to an order of restitution of the chattel or in default it’s value a successful plaintiff is also entitled to damage for it detention up to the date of Judgment. The appellant quarreled with the trial Judge for basing his judgment on detinue and preferred. That the judge should have called for an address on the issue. This does not occasion a miscarriage of Justice. In cases of this nature the court may order as damages the value of the chattel and also damage loss the loss of its use. The measure of damages for the chattel is its value or the cost of replacement at the time of its receiving while the measure of damage for the loss of use is the actual loss suffered by the plaintiff for its detention which depends on the circumstance of each case. See: ZENIN PETROLEUM & GAS vs IDRISIYYA LIMITED 2006 8 NWLR PT. 982, 221 AT 246. ORCHIA Vs PIED MART LIMITED (1995) 2 NWLR (PT. 379) 515. From every breach and in every violation of a legal right, the law implies some damages. The recoverable damage is lesser naturally from the defendant act. Where there is a breach of interest of fundamental nature the plaintiff who suffered as a result therefore, deserved to go home fully compensated. PER GEORGE OLADEINDE SHOREMI, J.C.A

INTERFERENCE WITH THE AWARD OF DAMAGES: CIRCUMSTANCE UNDER WHICH AN APPELLATE COURT CAN ALTER AN AWARD OF DAMAGE MADE BY A TRIAL COURT

An award of damage by a trial court is not to be altered by an appellate court except where the award is shown to be either manifestly too high or too low or where it was made on a wrong principle or law. PER GEORGE OLADEINDE SHOREMI, J.C.A

ADMITTED FACT: EFFECT OF UNDENIED FACT

It trite the law that a fact which is not denied is deemed to have admitted. OKOSI Vs THE STATE (1989) 1 NWLR (PT. 100) 64. BAN THOMAS HOTELS LIMITED VS. SEBI FURNITURE (1989) 5 NWLR (PT. 123 AT 742 ONOGORUWA Vs JAMB (2001)10 NWLR PT. 722 AT 742. PER GEORGE OLADEINDE SHOREMI, J.C.A

JUSTICES

AMIRU SANUSI Justice of The Court of Appeal of Nigeria

GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

Between

AMAECHI AKUDO Appellant(s)

AND

GUINNESS NIGERIA PLC. Respondent(s)

GEORGE OLADEINDE SHOREMI, J.C.A.(Delivering the Leading Judgment): This is an appeal against the Judgment of the Benin High Court delivered on Monday the 20th day of March, 2000. The Respondent as Plaintiff in the trial court sued the Appellant as Defendant for diversion of its products which were consigned over to a period through the appellant as its transporter to various MDS Depots nation wide accordingly in its amended statement of claims the Respondent as Plaintiff claimed thus:
PARTICALAR OF DAMAGES:
(i) Conversion of Enugu consignment dated 5/10/96 …
1500 x N1,375.88k                          N 2,063M820.00
less repayment of                   N  1,897,761.00
N     166,059.00
(ii) Conversion of Jos consignment dated
24/6/97 … 1400 x N1,471.05k                 N  2,059,470.00
(iii) Conversion of Enugu consignment dated
4/7/96 … 1600 x N1,575.88k          N  2,201,408.00
(iv) Conversion of Ogba consignment dated
18/7/96 … 600 x N919.73k          N     551,838.00
(v)  Conversion of Aba consignment dated
30/11/97 … 600 x N1,575.88k       N     825,528.00
(vi) Conversion of Aba consignment dated
10/12/96 … 150 x N1,375.88k       N  2,063,820.00
(vii) Conversion of Enugu consignment dated
8/7/96 … 600 x N1,375.88k          N     825,528.00
(viii) Conversion of Enuga consignment dated
6/9/96 … 600 x N1,375.88k          N     825,528.00
(ix) Conversion of Aba consignment dated
17/12/96 … 1400 x N1,375.88k       N  1,926,232.00
(x) Conversion of Enugu consignment dated
25/9/96 … 1500 x N1,375.88k       N  2,063,820.00
(xi) Conversion of Enugu consignment dated
30/9/96 … 600 x N1,375.88k          N    825,528.00
(xii) Conversion of Enugu consignment dated
27/3/96 … 1500 x N1,375.88k       N 2,063,820.00
(xiii) Conversion of Enugu consignment date
27/2/96 … 6000 x N1,375.88k       N   825,528.00
(ix) Conversion of Aba consignment dated
17/12/96… 1400 x N1,375.88k       N1,926,232.00
(x) Conversion of Enugu consignment dated
25/9/96… 1500 x N1,375.88k          N2,063,820.00
(xi) Conversion of Enugu consignment dated
30/9/96 … 600 x N1,375.88k          N   825,528.00
(xii) Conversion of Enugu consignment dated
27/3/96 … 1500 x N1,375.88k       N2,063,820.00
(xiii) Conversion of Enugu consignment date
27/2/96 … 6000 x N1,375,88k       N   825,528.00
(xiv) Conversion of Aba consignment dated
29/3/96… 600 x N1,375.88k          N     825,528.00
Total Special Damages          N18,019,635.00
21% interest for one year only        N  3,790,424.00
GRAND TOTAL              N21,940,059.00

6. Plaintiff shall rely on the relevant Deliveries/Empties collection Notes DCENs, debit notes, Transport agreement and other relevant documents.
7. WHEREUPON Plaintiff claims the sum of Twenty-one Million, Nine Hundred and Forty Thousand and Fifty-Nine Naira as formulated in Paragraph 5 above.
The Appellant also counterclaimed in his statement of claim as follow:
“whereof the Deficit claims as follow:
(1) Special Damages N23,922,647.05
(2) General Damages N 5,000,999
The case was contested on the facts as revealed in evidence of both parties and Exhibits were also tendered. At the end of the trial including addresses of both counsel the Trial Judge in his Judgment concluded as follows:
“From the evidence adduced by the defendant in proof of the case of the wrongful detention of his two vehicles, although he has not made a claim for restitution or the release of his two vehicles, the court can exercise its discretionary power in ordering specific restitution. Accordingly, the two vehicles with registration numbers AW 513 BEN AND AA 564 ABD now in custody of the Plaintiff are ordered to be released forthwith to the defendant, their detention been wrongful.
The defendant folded his arms and watched his vehicles remain in plaintiff’s custody and wants the court to award N15,000.00 daily for 25 days in a month for about 27 months. This in my view cannot be allowed in the face of his legal duty to mitigate his loss. The claim for special damage under those circumstances cannot succeed as it is mainly speculative and not an accrued specific pecuniary loss.
The Defendant in my view is entitled to general damages which the law presume flow from the wrong complained of. By the evidence of the defendant it it is evident he has suffered some damage by the wrongful detention of his two Vehicles which I assess at N1,000.000.00 (One Million) for each vehicle.
In conclusion the Plaintiff’s claim succeeds for conversion against the defendant in the sum of N6,344.970.10k for goods had but not delivered to the address. The Plaintiff’s has asked for 21% interest being Central Bank rate. The action in conversion is a damage. I award the 21% per annum interest as claimed.
The counter claim of the defendant against the Plaintiff succeeds in the claim for N200,000.00 being money paid to the Presidential Task Force by Defendant and N2,000,000.00 (Two Million Naira) as general damages for the unlawful or wrongful detention of the vehicles forthwith. The other claims fail and are dismissed.”
Dissatisfied with the Judgment the appellant appealed to this court vide Motion and grounds of appeal on Pages 88 – 91.
Grounds of appeal stated therein reads as follows: I quote without particulars
(i) The Lower Court erred in law in awarding the Defendant general damages in the sum of N2.000.000 or at all when the Defendant never counter claimed for general damages in any sum at all.
(ii) Further grounds of appeal will be filed upon receipt of the record of Proceedings.
By a motion dated 21/12/2000 the appellant was granted leave to file additional grounds of appeal numbered 3 -7 and I quote without particulars. ADDITIONAL GROUNDS OF APPEAL:
3. Having held the “From the wordings of Exhibits D and J it appears to me that the usual practice of the plaintiff (Respondent) is to debit the accounts of it transporters where stocks are undelivered”, the learned trial judge misconstrued the evidence when she proceeded to hold that the Respondent established cases of conversion and diversion without the said accounts being produced in evidence of the respondent.
4. The learned trial judge erred in law when she held that “conversion ….. does not give the claim a criminal coloration requiring proof beyond reasonable doubt ….” ‘Whereas the said finding is inconsistent with the provisions of Section 383(1), (2) and (a) of the Criminal Code Act, Cap 77 laws of The Federation, 1990
5. The learned trial judge misconstrued the evidence and came to the erroneous conclusion or finding that the appellant admitted that he owed the plaintiff on Exhibits E, E1 – E5.
6. The learned trial judge erred in law when she failed to award to the appellants special damages for loss of use of his trailer vehicles.
7 . The learned trial judge misconstrued the essence of the appellants Counter-Claim by holding that his claims for loss of the unlawfully detained trailers for the period of detention amounted to a claim in detinue.
In line with the practice in this court parties exchanged briefs of argument and when the appeal came up for hearing on 10/3/2011 MR. KEN MOZIA of learned counsel for the appellant identified his brief of argument as the brief titled “Appellant consolidated brief dated 25/2/2002 filed on 26/2/2002 and the amended reply brief dated 7/5/2010. He adopted both briefs as his argument in favour of the appeal and referred to paragraph 7.03 of the consolidated brief wherein he argued that the issue of detinue was introduced suo moto by the court in its judgment without calling on counsel to address on the issue. He also referred to its paragraph 8.01 at page 14 and page 81 of the record (Lines 24 – 25) where it was ordered that the vehicles be returned but which till today of the hearing of the appeal the vehicles have not been returned.
He adopted the briefs and relied on them as his argument. He urged the court to allow the appeal.
Mr. Edeki of counsel to the Respondent adopted and relied on his brief dated 8/10/10 filed on 11/10/10 but deemed filed on 30/10/10 vide an application filed on 11/10/10. He urged the court to dismiss the appeal.
The appellant distilled 6 issues for determination thus:
(a) Whether the lower court was right in finding the appellant presently liable for matters arising from the contract of transportation between the respondent and 2nd appellant. (Additional Ground 3)
(b) Whether the 21% interest was reliably granted by the lower court on the judgment arrival in favour of the Respondent (Original Ground 2).
(c) Whether there was sufficient evidence to justify the finding were proved. (Additional Ground 4)
(d) Whether the finding that the appellant admitted owing the respondent on Exhibits E, E1, – E5 are not perverse. (Additional Ground 51st Appellant)
(e) Whether the lower court was right in not awarding special damage to the Appellant for loss of use of their trailers. (Ground 1 of notice of appeal of 2nd Respondent)
(f) Whether the appellant’s claim for loss of use amounted to a claim in detinue.
The Respondent on it own though not a cross/appellant distilled 4 issues for determination.
(i) Whether or not issues was ever found on the legal status of the appellant during trial.
(ii) whether or not the 21% of a interest in the lesser sum awarded from dated of this judgment was not sufficiently clear, unambiguous and justifiable. And whether or not issue was ever found or claim for interest at all.
(iii) Whether or not the judgment was in consonance with the weight of evidence adduced at the trial.
(iv) Whether or not issues raised and the grounds of appeal bused on the counter-claim are incompetent having regard to the issue of jurisdiction in the respondent’s brief,
Let me without wasting time on the issue iv as contained in the Respondent’s brief. The basis of this suit is Exhibit ‘B’ which is binding on both parties.
In the light of Exhibit ‘B’ issue of jurisdiction could not arise at all. There is no ground of appeal relating to this point. Though a point of law raising issue of jurisdiction could be raised at any time and at any stage. See: AKEGBEJO Vs ATUGA (1998) 1 NMLR (PART 534) P. 455 OSADEBAY Vs A.G. OF BENDEL STATE (1991) 1 NMLR P. 169 525 MADUKOLU Vs NKEMDILIM (1962) 1 ALL NLR 587 AT 595
Respondent application for leave to cross appeal to enable him raise the issue Jurisdiction was dismissed by this court. Therefore the issue is closed and in event of argument on the issue is of no moment and is hereby discountenanced. The appellants decided to argue issue 2 (Original Ground 2) first.
The issue challenged the award of 21% interest on the sum awarded to the respondent. He argued that the trial court having awarded the Respondent 21% interest per annum in the lesser sum awarded from the date of the judgment can not go further to award the respondent interest “as claimed”. He argued that the said award can not stand.
He argued that there was no claim of interest by the Respondent either in their writ of summon nor in their amended statement of claim. He submitted that the award was gratuitous. He submitted that a court can not grant what was not claimed.
He referred on ILODIBA Vs NIG. CEMENT COY. LTD (1997) Pt 512 (SIC) P.174, 191. He further submitted that the court is not a Father Christmas relying on:
OTANLOKU Vs ALLI (1977) 11 – 12 SC 9 AT 13.
OBARO VS. DANTATA & SAWOE CEMENT COY. LTD (1997) 10 NMLR (PT.526) 676 at 691.
He argued that there is no evidence to warrant the award of interest to the Respondent. He argued that the mere fact that counsel addressed the court on an issue can never be a substitute for the evidence that has not been led YOYE Vs OLUBADE (1974) 10 SC 209 At 215 – 216. DARAMOLA & 3 ORS Vs A.G. ONDO STATE & 6 ORS (2000) 6 FWLR Pt 6, 997 At 10, 1013
He concluded that the award is imprecise and conflicting he urged that this court should hold that version to have been wrongly done.
The Respondent reply to this issue is under his issue 2. He submitted that the trial Judge was right in awarding 21% interest as demanded by the Respondent. He argued that the appellant was silent in the presentation of the case over the claim of interest therefore no further proof is required. He relied on:
OWOSHO Vs DODO (1984) 7 SC 149. at 163. OKESUYI Vs LAWAL (1986) 2 NMLR (PT. 22) 417 At 425.
He quoted the evidence of PW 7 which reads:
“I also ask for the interest that should have accrued on the principal amount.”
He argued that the provision of Order 40 Rule 7 of the High Court (Civil Procedure) Rule 1988 being relied upon by the appellants is not a rule of general application. He argued that parties did not join issue as to interest. He urged the court to resolve the issue in favour of the Respondent.
In his reply brief the appellant argued that by Order 40 Rule 7 of the High Court (Civil Procedure) Rule of Bendel State applicable to Edo State especially provided for maximum percentage of the interest to be awarded and lacks jurisdiction to award any higher interest. He argued that all the authorities cited by the Respondent in his Brief are manifestly irrelevant. The court in its judgment has this to say I quote:
“The Plaintiff has asked for 21% being Central Bank rate. The action is conversion (sic) is a purely personal action and results in a judgment for penury damaged. I award 21% interest as claimed”. The court had earlier said I quote. “The plaintiff is entitled to 21% per annum in the lesser sum awarded from the date of the judgment”.
There is no doubt here that the two awards are conflicting and I take it that this is a slip in the judgment of the learned judge. The 1st award is out of places having regard to the totality of the Judgment. The award is therefore set aside.
As for the 2nd award of the 21% of the lesser award, the only evidence provided by the Respondent at the lower court is as follows:
“I also ask for interest that should have accrued on the principal account”. A claim of interest must be pleaded and established by evidence before it can be granted.
See: N.I.D.E Vs DE EASY LIFE ELECTRONICS & ANOR (1994) 4 NWLR (PT. 597) 8 at 21.
In the instant case there is no proof of the interest of 21% as awarded by the trial court notwithstanding the Central Bank Monetary Policy for 1996. However the court is entitled to fall back on Order 40 Rule 7 of the High Court Civil Procedure 2 Edo State which need not be pleaded or proved as it is statutory.
It is entirely in the discretion of the trial court. However the maximum interest that could be awarded on the Judgment debt is 10% per annum from the date of the Judgment until the whole Judgment debt is liquidated.
See: N.I.D.E Vs WAYNE (W.A) LIMITED (1989) 5 NWR (Pt. 122) 422. BARLIET NIG. LTD Vs KACHALLA (1995) 9 NWLR (Pt. 420) 478.
Therefore if any award of interest is to be made at all it would be 10% per annum on the Judgment sum of N6,344.970.15 which was given to the court’s satisfaction.
ISSUE 3 This issue is directed against the finding of the learned trial Judge with regards to the position of the respondent case founded on the allegation of diversion and conversion where the learned trial Judge found as follows:-
“I am satisfied that the plaintiff plead by credible evidence the facts of diversion and conversion of goods as given in paragraph 5(i) (ii) and (xii) of the amended statement of claim”. He argued that the 1st appellant in denial that where there is shortage or non delivery such were usually deducted from his freight charge and in his evidence he had testify that “I did not divert and convert product valued N166,059 consigned to Enugu on 5/10/96 I paid the sum of N166.059 through my freight to the plaintiff”. He further argued that the 1st Respondent denied ever owing the Respondent as the whole shortage was fully paid.
It is the argument of the appellant that where a crucial point remains unchallenged or unshaken through cross-examination, the court ought to act on same. He relied on YUSUF Vs KUFPER INTERNATIONAL (1996) 5 NWLR PT.446 17 where:
The appellant argued that the lower court accepted the evidence of the 1st Appellant that the procedure of checking the account is that where there is a deficit and the transporter failed to account for it, the transporter is debited and the sum is deducted from his freight entitlement.
He argued that the best evidence in the circumstance of this case is for the Respondent to produce the appellant’s account with the respondent. He argued that if the lower court had appreciated the evidence the appropriate conclusion would have been that the Respondent did not discharge the onus placed on him by law. He submitted that this is a transportation agreement. He argued that the evidence was not challenged.
He further submitted that the appellant informed the Respondent as to accident which resulted into losses. He also submitted that there was no evidence of conversion the proof of which ought to be beyond reasonable doubt and not on the preponderance of evidence as held by the learned trial judge. He noted that the Judge did not only find the allegation of diversion as proved but also conversion which is an offence. He concluded that the liability was not found to have been established on the basis of non-delivery but on the ground that such goods were diverted and converted, diversion and conversion are not interchangeable he stressed. He urged the court that the finding occasions a miscarriage of Justice therefore the issue should be resolved in favour of the appellant.
In Response the respondent canvassed the issue to encompass Appellant’s Grounds 3, 4 and 5 of the appeal as they complain on the weight of evidence adduced.
He submitted that the evaluation of the evidence by the court was objective, reasonable and dispassionate. He argued that the finding of the lower court was made up of three components as follows:
(i) Non delivery which 1st Appellant conceded because of his vehicle alleged involvement in accident.
(ii) Non delivery which 1st appellant conceded but which he claimed he had paid.
On the contrary there is overwhelming evidence that he did not claim the debt. in the Judgment the court observed.
“The Defendant on the one hand was unable to show how he cleared the debt. The Appellant suppressed waybills (DECN) for the consignment and by trade practice, and it is only waybills that are used to process payment.
He argued that the admission by the 1st Appellant were succinct and therefore admit for obscure interpretation and fault findings.
He argued that the award made by the trial court in favour of the Respondent was proved beyond reasonable doubt or at best on the balance of probability refers to:
MOGAJI Vs ODOFIN (1978) 4 SC AT 94.
WOLUCHEM Vs GUDI (1981) 5 SC 291 AT 294
The appellant dwelt so much on the criminal nature of the issues of conversion and diversion stressing that the word Conversion connotes criminality and the proof should be beyond reasonable doubt. The trial court noted as follows: “Conversion in this case does not give the claim a criminal colouration thus requiring proof beyond doubt but rather an action in tort and results in a judgment for pecuniary damage if proved on the preponderance of evidence.”
In OMIDIORA Vs ADEMILUYI (1997) 6 NWLR (Pt 508) At 294, 306. The court held:
“The term “conversion” can mean either a crime or civil wrong (tort).
In the present case in my view the plaintiff used the term against the appellant in it’s civil or tortures sense. Thus it was not an allegation of a criminal offence.

In OMORHIRHI VS. ENATEWERE (1988) 1 NWLR R (PT. 73) P. 746 OPUTA JSC says as follows:
“What is the meaning of “proof beyond reasonable doubt” used in section 137(1) of the Evidence Act? Proof beyond reasonable doubt does not mean proof beyond shadow of a doubt. The law would fail to protect the community both in criminal as well as in civil cases if what is required is proof beyond the shadow of a doubt, if what is required absolute certainty – Miller V. Minister of Prisons (supra), even in criminal cases where it is required that the charge be proved” beyond reasonable doubt” – even there are degree of proof within that standard. In civil cases, requiring proof by preponderance of evidence, even too, there may be degrees of probability within the standard in both criminal and civil cases, it is obvious that the degree depends on the subject matter. From the above it is safe to assume that in both criminal and civil cases, the general rule would seem to be that the circumstances of each case must be such as would lead the guarded discretion of a reasonable and just man to reach the conclusion reached by the trial judge. The degree of probability required to reach that conclusion as well as the degree of doubt would prevent one coming to that conclusion to be arrived at. If in either case the reasonable prudent and just man entertains real and substantial doubt, of course he will not arrive at the conclusion (he will not enter judgment if you please), and what is real and substantial doubt? Is it not another way of saying a reasonable doubt? And a reasonable doubt will surely prevent a reasonable prudent and just man from coming to the conclusion (the judgment). In other words in either criminal or civil cases the trial judge has stop be satisfied and in either he cannot be satisfied if he has reasonable doubt, when this is realized, then the phrase “reasonable doubt” can be used justly and aptly in a civil as well as in a Criminal case. In that con Section 137(1) of Evidence Act has not added much to the discussion, the point is that any and every allegation has to be proved to the satisfaction of the judge.
B. This leads on to the trial point. The learned trial judge said he was satisfied that the Plaintiff had proved his case. To be satisfied and still have a reasonable doubt be a very uncomfortable state of mind: BATER V. BATER (1951) PROBATE D.W. 35 AT P. 30 PER BUCKNIL. L.J. if the trial judge was satisfied it then meant that the Plaintiff/Respondent proved his case, proved his material averments, beyond reasonable doubt.”
From the records and from the above authorities I hold that the finding of the trial court are unassailable and therefore is not perverse and should not be disfuse. I therefore hold that the special damage of N6,344,970.15 awarded in favour of the Respondent was proved beyond reasonable doubt. The evidence proffered both oral and documentary are qualitative and credible and therefore leads to qualification. See:
SHELL PETROLEUM LTD VS. TIERO (2005) NSCOR VOL. 22 PT. 69 at 88 – 89.
ISSUE 4 The issue calls for a consideration of whether evidence exist on the printed Records to justify or validate a finding of the lower court that 1st Appellant admitted either for himself or on behalf of the 2nd Appellant that he owes the respondent on Exhibit E1 – E5 and on the face its value and the basis of what an award was made.
He argued that from Exhibit “B” it was 2nd rather that the 1st appellant who was sued as such by the respondent that was actually the transporter. He argued that to validly entitle the respondent to an award on the basis of the alleged admission such must have been made by or on behalf of the 2nd Respondent. He argued that the 1st appellant can not admit liability because there was no obligation imposed on him by the agreement. The Respondent in his brief said that the fact that the 1st appellant is an illiterate would not exonerate him from the admission of the liability.
From the records it is shown at Page 57 that the 1st Appellant has this to say
“I know Respondent. I am a transporter. I am the managing Director of Akudo Commercial Agency (Nig.) Ltd. I see a document shown to me it is the agreement I entered into with the Plaintiff it is Exhibit ‘B”.
He therefore proceeded with the defence and counter-claim. What is more he benefited from the counter-claim. However the 2nd Respondent was latter joined as interested parties. The argument of the appellant on this issue is of no moment and ought to be resolved in favour of the Respondent and I so resolve.
ISSUE 5 & 6 The issues challenged the correctness of the failure of or omission of the lower court to consider and award damage for loss of use of the appellant trailer vehicles which was unlawfully detained by the Respondent.
He argued that the loss of use was pleaded in paragraph 4(e) of the counterclaim. The cost of hiring a trailer of the capacity of the one seized makes a return of N50.000 daily tendered receipts in confirmation of hiring fees Exhibit P1 – P2 Evidence was also given by the 1st appellant asserting that the vehicle usually worked for 25 days each month. He was not cross examined on the issue neither did the respondent adduce any evidence in rebuttal.
In his Judgment the trial Judge has this to say
The lower court rightly held as follows on the issue:-
“The plaintiff’s reliance on the mitigation of loss for the detention of the two vehicles of the defend ant has no justification in law. ….. I do not see how the detention of these vehicles by the plaintiff has in any way mitigated their loss. The vehicles were not sold to recover their loss as this would obviously be taking the law into their hand. Keeping the vehicles as they have been doing is no less illegal. I accordingly find these defendants vehicles as a clear resort to self help, illegal unwarranted and ill-advised”.
The lower court went further to make a specific finding that “the defendant has shown that the vehicles are for commercial purpose by credible evidence. The evidence of the defendant remained unchallenged in the main”.
The respondent indeed admitted in paragraph 4 of the Defence to counter-claim that it detained the appellant’s vehicles in order to mitigate its losses. P.W.1 also testified as follows:-
“It is true that the plaintiff seized the two vehicles belonging to the defendant to recoup part of our losses and to make sure that the defendant comes forward. We seized the vehicles within our premises”.
He finally stated that “the vehicles belonging to the defendant were seized sometime in 1997 and they are still in our custody.
P.W. 2 testified on the issue as follows:-
“I have seen Exhibit B. It does not contain the fact that defendant’s vehicle could be impounded where he fails to deliver our products but we had to do it to reduce our loss and to get the defendant to show up. Defendant’s two vehicles were impounded in 1997”,
Rather surprisingly, despite the above definite and specific findings predicated on clear evidence based on the pleadings of both parties, the trial court strangely declined to award the appellant any special damage on the grounds that the claim “is mainly speculative and not an accrued specific pecuniary loss”, the above conclusion is more difficult to appreciate because the same court had earlier concluded that”:-
“The defendant folded his arms and watched his vehicles remained in plaintiffs custody and wants the court to award N15,000 daily for about 27 months. This in my view cannot be allowed in the face of his legal duty to mitigate his loss”.
The appellant relied on the case of OSHOWIRE LTD VS. TRIPOLI MOTORS (1997) 5 NWLR PT. 503, 1 at 22 where it was said that in addition to an order of restitution of the chattel or in default in value a successful plaintiff is also entitled to damage for its detention up to the date of Judgment.
He argued that the oral and documentary evidence in proof of the claim was of such a quality that it ought to have been accepted because of the reasonable nature it was and because not either challenged or contradicted.
See: KASILE Vs FOLARIN (1989) 3 NWLR (PT. 107) 1 At 12 ODULAJA Vs FRADA (1973) 11 SC 375.
He also submitted that the vehicles are for commercial purpose. He urged the court to reaffirm the order of the lower court that the vehicles be returned.
He finally submitted that since the proper parties are now before the court an award based on the records can be properly made.
It is of note that the Respondent did not deny the seizure of the appellant vehicles neither did it cross examined or dispute the claim of the Appellant. I agree with the trial Judge that the detention of the appellant vehicles is a clear resort to self help, illegal, unwarranted and ill-advised.
The question now is whether the appellant are entitled to a claim of the less of use. In the case of TRIPOLI MOTORS Supra it was decided that in addition to an order of restitution of the chattel or in default it’s value a successful plaintiff is also entitled to damage for it detention up to the date of Judgment. The appellant quarreled with the trial Judge for basing his judgment on detinue and preferred. That the judge should have called for an address on the issue. This does not occasion a miscarriage of Justice.
In cases of this nature the court may order as damages the value of the chattel and also damage loss the loss of its use. The measure of damages for the chattel is its value or the cost of replacement at the time of its receiving while the measure of damage for the loss of use is the actual loss suffered by the plaintiff for its detention which depends on the circumstance of each case.
See: ZENIN PETROLEUM & GAS vs IDRISIYYA LIMITED 2006 8 NWLR PT. 982, 221 AT 246. ORCHIA Vs PIED MART LIMITED (1995) 2 NWLR (PT. 379) 515.
From every breach and in every violation of a legal right, the law implies some damages. The recoverable damage is lesser naturally from the defendant act. Where there is a breach of interest of fundamental nature the plaintiff who suffered as a result therefore, deserved to go home fully compensated.

The Respondent did not challenge the evidence in the appellant. The appellant has proved the loss of use of the vehicles.
Exhibit “B” did not give the Respondent any right of the seizure. The claim of the appellant’s in the counter claim are that:
“The two vehicles have been in custody of the plaintiff from August 1997 till date i.e the Judgment appealed against. That the average cost of having a 1621 Trailer at 20 tones N15.000 per day for 25 days in a month for 22 months. The period of illegal detention. The defendants claim the sum of N22.852.500 for the two vehicles including interest on the said sum at the rate of 21% till the vehicles are released.
From the above consideration the award of two million as general damage by the lower court is set aside and in it place the sum of N16.500.000 based on the loss of use of the two trailers at the rate of N15.000.00 per day for 25 days for 22 months.
ISSUE NO. 1 Challenge the correctness of the lower court demnifying the appellant in damage for matters arising from the operation of an agreement between two limited liability companies.
I can not see the relevance of this issue from the above consideration of the case. The appellant had earlier argued that there are now proper parties before the court. In conclusion the appeal succeeds in part and the following orders are hereby made.
(1) The Judgment of the lower court in the award of N6.344.970.10k for goods had and not delivered is hereby affirmed.
(2) The interest of 21% awarded on the said sum is set aside and in its place an interest of 10% per centum is awarded.
(3) The counter claim of the Appellant against the Respondent in the claim for N200.000 being money paid to the Presidential Task Force for wrongful detention of the defendant’s two vehicles is affirmed.
(4) The order for the release of the two vehicles to the appellant is also affirmed.
(5) The award of N2.000.000 two million naira as damages for the unlawful and wrongful detention of the two vehicles is set aside and it its place the sum of N16.500.000 being loss of use at N15.000.00 each per day for 25 days each and for 22 months as claimed by them.
There shall be no order as to cost.

AMIRU SANUSI, J.C.A.: I had the advantage of reading in advance the draft of the judgment just rendered by my learned brother Shoremi, JCA. I agree with his reasoning and conclusion that the appeal partly has merit and ought to be allowed in part. I also endorse all the orders made in the leading judgment.

CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A.: I read before now, the judgment just delivered by my learned brother G.O. SHOREMI JCA. I agree with the reasoning contained therein and the conclusions arrived thereat. I too agree that the appeal succeeds in part. I abide by all the consequential orders made in the judgment including the order as to costs.

Appearances

For Appellant

AND

For Respondent