CHIEF L. O. EZEUGO v. CHRISTIAN AGIM (2015)

CHIEF L. O. EZEUGO v. CHRISTIAN AGIM

(2015)LCN/8069(CA)

In The Court of Appeal of Nigeria

On Friday, the 6th day of March, 2015

CA/OW/301/2012

RATIO

PRACTICE AND PROCEDURE: AWARD OF COST; WHETHER A SUCCESSFUL PARTY IS ENTITLED TO THE AWARD OF COST AND THE EXERCISE OF JUDICIAL DISCRETION IN THE AWARD OF COST

The Law is firmly established that a successful party is entitled to costs as of right unless he misconducts himself or proves to be undeserving of it. Conversely a defeated party ought not to be punished or damnified in costs for no just cause or on flimsy, capricious and unfounded ground. Award of costs involves a judicial discretion which must be exercised on fixed judicial principles, that is, according to rules of reason and justice not in accordance with private opinion of a Judge. The discretion must not be gauged or affected by questions of benevolence or sympathy. See:
1. HACOLIMITED VS. S.M. DAPS BROWN (1973) 4 SC 103.
2. THE OBROS AUROLING NIG. LTD. VS. BAKELY INTERNATIONAL AUTO ENGINEERING CO. LTD. (2013) 2 NWLR (PART 1338) 337 at 354 G-H to 355A PER ANYANWU JCA.
I also call in and the decision of the apex court in the case of N.N.P.C. VS. KLIFCO. NIGERIA LTD. (2011) 10 NWLR (PART 1255) 209 at 234 H to 235 A-B per RHODES-VIVOUR, JSC who held:-
“The award of costs is entirely at the discretion of the court, costs follow the event in Litigation. It follows that a successful party is entitled to costs unless there are special reasons why he should be deprived of his entitlement. In making an award of costs, the court must act judiciously and judicially. That is to say with correct and convincing reasons.” per. PETER OLABISI IGE, J.C.A.

APPEAL: THE EVALUATION OF EVIDENCE BY THE TRIAL JUDGE; THE MEANING OF PROOF BY PREPONDERANCE OF EVIDENCE AND THE CIRCUMSTANCES WHERE FINDINGS OF A TRIAL COURT CAN BE SET ASIDE

Proof by preponderance of evidence simply means that the evidence adduced by the Plaintiff should be put on one side of the scale mentioned in ODOFIN & ORS. VS MOGAJI & ORS. (1978)S ILRN 212 and the evidence adduced by the Defendant put on the other side of that scale and weighed together to see which side preponderates.”
See also MOGAJI VS ODOFIN (1978) NSCC 275 at 277-278 per Late Eminent Jurist FATAYI WILLIAMS JSC later CJN.

Therefore when the evaluation of evidence by a trial Judge is in issue or being challenged, the guiding principle to be followed are well settled. The finding of a trial court can only be set aside or displaced only in one or more of the following circumstances viz:
1. Where the trial Judge failed to make proper use of his opportunity of seeing, hearing and observing the witnesses.
2. Where he failed to exercise his discretion properly or judicially.
3. Where the trial judge drew a wrong conclusion from the accepted evidence or formed an erroneous view thereon.
4. Where the findings or evaluation are perverse. See
(1) NEWMAN OLODO & ORS. Vs. CHIEF BURTON M. JOSAIH & ORS. (2010) 12 SCM 157 AT 182 A-B per ADEKEYE, JSC.
(2) VAB PETROLEUM INC. VS. MR. MIKE MOMAH (2013) 14 NWLR (PART 1374) 284 at 318 E-H where I.T. MUHAMMED, JSC said:
“The trite position of the law is that where the court of Appeal wrongly disturbed any finding of fact of a trial Court, the Supreme court will not hesitate in restoring that finding. See: Board of Customs and Excise V. Barau (1982) 10 sc 48. Finally on this issue, I may have to reiterate the function of an appellate court on question of facts. It is mainly limited to seeking whether or not there was evidence before the trial court upon which its decision on facts was based, whether it wrongly accepted or rejected any evidence tendered at the trial; whether evidence called by either party to the conflict was put on either side of the imaginary scale and weighed one against the other. In other words, whether the trial court properly evaluated the evidence, whether the trial court correctly approached the assessment of the evidence before it and whether the evidence properly admitted was sufficient to support the decision upon the inference drawn therefrom. This is the only way and procedure open to an appellate court in the consideration of an appeal brought before it.” per. PETER OLABISI IGE, J.C.A.

TORT: TORT OF CONVERSION; WHAT IS TORT OF CONVERSION THE INGREDIENT OF THE TORT OF CONVERSION

This leads me to ask the question? What is tort of conversion? The answer to this question has been aptly provided in the case of BONIFACE ANYIKA & CO LAGSO NIGERIA LTD VS KATSINA U.D. UZOR (2006) 15 NWLR (PART 1003) 560 at 574 H to 576 A-D where NIKI TOBI espoused the law and proof required in a case of tort of conversion thus:
“And that takes me to the tort of conversion. Conversion is an act of willful interference, without lawful justification, with any chattel in a manner inconsistent with the right of another, whereby that other is deprived of the use and possession of that chattel. The tort of conversion is committed where one, without lawful justification, takes a chattel out of the possession of another, with intention of exercising a permanent or temporary dominion over it, because the owner is entitled to the use of his property at all times. The usual method of proving that a detention is adverse is to show that the plaintiff demanded the delivery of the chattel, and that the defendant refused or neglected to comply with the demand. See Ihenacho v. Uzochukwu cited by learned counsel for the appellant.
A cause of action in conversion is based on an unequivocal act of ownership by a defendant of goods of the plaintiff without any authority or right in that behalf. See Ojini v. Ogo Oluwa Motors (Nig.) Ltd. (1998) 1 NWLR (Pt. 534) 353. In that case, Belgore, JSC. said at page 363:
“When a person, by deliberate act, deals with the chattels of another in a manner inconsistent with that other’s right whereby he is deprived of the use and possession thereof, the tort of conversion is committed. To be liable for conversion, the defendant need not intend to question or deny the plaintiff’s right but it is enough that his conduct on the chattel is inconsistent with the plaintiff’s rights.”
See also Owena Bank (Nig.) Ltd. v. Nigerian Sweets and Confectionery Co. Ltd. (1993) 4 NWLR (Pt. 290) 698; National Bank of Nigeria Limited v. Mobil Oil Nigeria Limited (1994) 2 NWLR (Pt. 328) 534; Danjuma v. Union Bank (Nig.) Ltd. (1995) 5 NWLR (Pt. 395) 318; Omidaru v. Ademiluyi (1997) 6 NWLR (Pt. 508) 294; Yusuf v. Mobolaji (1999) 12 NWLR (Pt. 631) 374; Trade Bank Plc. V. Barilux (Nig.) Ltd. (2000) 13 NWLR (Pt. 685) 483.
For the tort of conversion to be committed, the following ingredients must be present and proved.
1. The goods belong to the plaintiff.
2. The goods do not belong to the defendant.
3. The goods are taken out of the possession of the owner, the plaintiff, without lawful justification.
4. The defendant must have the intention of exercising permanent or temporary dominion over the goods.
5. There must be specific demand for the goods by the plaintiff, the owner.
6. That denial must be followed by an unequivocal act of refusal to surrender the goods by the defendant to the plaintiff.
The crux of the tort is that the defendant must deal with the goods of the plaintiff in a manner inconsistent with the plaintiff’s right of ownership. In view of the fact that ownership is central to the tort, a plaintiff who cannot prove ownership cannot succeed in an action on the tort of conversion. Demand is also a vital ingredient. There cannot be conversion until the plaintiff formally makes a demand of the goods, followed by a refusal by the defendant to surrender them. That is when the intention of the defendant to deny the plaintiff’s right to ownership of the goods comes to the open. per. PETER OLABISI IGE, J.C.A.

MEANING OF PHRASES: THE MEANING OF THE TERM ‘MISCARRIAGE OF JUSTICE’

The term “miscarriage of justice” can be described as failure on the part of a Court to do substantial Justice to a party in a Civil or Criminal Proceedings contrary to the weight of evidence before such a Court. It is a failure of Justice. A departure from doing what is right in a given judicial deliberation or decision. I call in aid the decision of the apex Court in the Land in the case of CHIEF ALEX OLUSOLA OKE & ANOR. VS. DR. RAHMAN OLUSEGUN MINIKO & ORS. (2014) 1 NWLR (PART 1388) 332 at 372 A-G where PETER ODILI, JSC said:
“From the standpoint of the appellants, a miscarriage of justice had been visited on them. On what amounts to miscarriage of justice, this court has in a long line of judicial authorities set out some definitions on what can in the course of adjudication be termed “miscarriage of justice”. Tobi, JSC in Gbadamosi V. Dairo (2007) 3 NWLR (Pt. 1021) 282 at 306 treated it thus:
“Miscarriage of justice connotes decision or outcome of legal proceedings that is prejudicial or inconsistent with the substantiated rights of the party. Miscarriage of justice means a reasonable probability of more favourable outcome of the case for the party alleging it. Miscarriage of justice is injustice done to the party alleging it.”
In Aigbobahi V. Aifuwa (2006) 6 NWLR (Pt. 979) 270 at 290 – 291 this court said:
“…miscarriage of justice can be said to be such a departure from the Rules which permeate all judicial process as to make what happened not in the proper sense of the word judicial procedure at all. What constitutes a miscarriage of justice vary, not only in relation to particular facts, but with regard to the jurisdiction invoked by the proceedings in question. It is enough if what is done is not justice according to law.” per. PETER OLABISI IGE, J.C.A.

CIVIL DUTY; DUTY OF A CITIZEN; WHETHER A CITIZEN CAN BE HELD CULPABLE FOR DOING THEIR CIVIL DUTY

The Law is settled that in this country a citizen who believes that a crime has been or is likely to be committed by a person either against him or another citizen is entitled to report the matter to the Police and how the Police go about the performance of their duties in investigating the matter is at their discretion and not the burden of the complainant.
See the case of FAJEMIROKUN VS. CB. NIG. LTD. (2009) 5 NWLR (PART 1135) 588 at 600 B-C where OGEBE, JSC. said:”I do not agree with this submission. Since the appellant’s case was that the respondents reported him to the Police who then arrested and detained him, it was necessary for him to join the Police for them to explain the reason for the arrest, to show whether there was a reasonable cause for his arrest. Generally, it is the duty of citizens of this country to report cases of commission of crime to the Police for their investigation and what happens after such report is entirely the responsibility of the Police. The citizens cannot be held culpable for doing their civic duty unless it is shown that it is done mala fide.”
See also the case of OLUSINA AJAYI VS. THE STATE (2013) 9 NWLR (PART 1360) 589 at 605 B-C where the Supreme Court per AKA’AHS JSC said:
“Section 4 of the Police Act stipulates that:-
“The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of the life and property …
Apart from the power vested in the Police for prevention and detection of crime and apprehension of offenders, I am not aware of any Law which stipulates the order in which investigations are to be carried out.” per. PETER OLABISI IGE, J.C.A.

APPEAL: ISSUES FOR DETERMINATION; WHETHER A PARTY TO AN APPEAL IS PERMITTED TO RAISE OR FORMULATE MORE THAN AN ISSUE FROM A GROUND OF APPEAL

I must say straight away that issues two and three formulated by the learned counsel to the Respondent are grossly incompetent in that they run foul of the settled principle of law that a party to an appeal is not permitted to raise or formulate more than an issue from a ground of appeal or a combination of grounds of appeal. See HON. PROF. CHUDI UWAZURIKE & ANOR VS CHIEF AUSTINE NWACHUKWU & ANOR (2013) 3 NWLR (PART 1342) 503 at 517H to 518A where my Lord ONNOGHEN, JSC said:
“Looking closely at the above issues, it is clear that there is only one issue for determination as what learned senior counsel calls issue No.2 can only be considered in the alternative. It is only if that issue is considered as alternative to issue No. 1 that it can be valid as the law is long settled that though an Appellant or party may raise an issue for determination in an appeal from either a single ground or combination of grounds of appeal, he is not permitted to raise more than an issue from a ground or combination of the same grounds of appeal, as in the instant appeal, where the same grounds 1, 2, 3 and 4 of the grounds of appeal are said to support and ground…… issues 1 and 2 formulated for determination. In the circumstance of this case only Issue No.1 can and will be considered in this judgment as I considered same to be the only valid issue arising for determination.” per. PETER OLABISI IGE, J.C.A.

Before Their Lordships

ITA GEORGE MBABAJustice of The Court of Appeal of Nigeria

PETER OLABISI IGEJustice of The Court of Appeal of Nigeria

FREDERICK O. OHOJustice of The Court of Appeal of Nigeria

Between

CHIEF L.O. EZEUGOAppellant(s)

AND

CHRISTIAN AGIMRespondent(s)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Imo State High Court delivered on 30th day of July, 2012 by Honourable Justice NONYE OKORONKWO now J.C.A.

By his Writ of Summons issued out of the said court on 29th day of August 2011, the Appellant claimed against the Respondent as follows:-
“The Claimants claims from the Defendant as follows:-
(a) A declaration by the Honourable Court that the willful conversion by the defendant of the Claimant’s “Hyundai Bus with Registration No. AT 870 WER AND Mitsubishi Colt Saloon car with Registration No. AE908 AFR” is unlawful.
(b) An order compelling the defendant to return to the claimant’s use and possession the said Hyundai bus with Reg No. AR 870 WER and MITSUBISHI Colt car with Reg No AE 908 AFR with all the items and sum of money contained therein.
(c) N10 Million being general and special damages for the conversion of the claimant’s vehicles. N60,000 (Sixty Thousand Naira) monthly for the engaged car service until this suit is determined.”

Pleadings were exchanged and the matter proceeded to trial after which the learned trial Judge gave a considered judgment dismissing the Appellant’s Claims. In the said judgment, the learned trial Judge held thus:-
“For conversion (tort of) to succeed it must be shown that there is dealing in the chattel of the plaintiff by the defendant in a manner inconsistent with the right of the plaintiff. There seems to be a requirement of direct intentional interference with the chattel in manner that is inconsistent with the plaintiffs’ right of ownership or possession.
In this case has it been shown that there was a direct and intentional act of the defendant that resulted in the tort of conversion which is an instance of trespass? It has not been shown that there was any direct or intentional act of the defendant that resulted in the deprivation of the plaintiff of his ownership or possessory rights in his property in question.
On the facts of the case it seems to me that the defendant merely made a report to the police of a possible case of common nuisance or conduct likely to endanger peace on reasonable grounds and the police acting upon such complaint acted by removing the alleged nuisance. It was not shown that the defendant besides taking the complain procured or prodded the police into activity which activity the police would not otherwise have undertaken. This was not demonstrated. Further on the fact, a tenant parking two unserviceable cars in a small parking space in which 8 other tenants compete for scant space is capable of prompting a complaint to the police to abate a common nuisance pursuant to Section 234 of the Criminal code.
In the final analysis, I hold that no case is made out by the plaintiff in conversion and the damages claimed are unmerited. Accordingly, the case of the claimant is dismissed with N50,000.00 (Fifty Thousand Naira) cost to defendant.”

Not satisfied with the aforesaid judgment, the Appellant filed Notice of appeal consisting of three grounds of appeal on 24th day of August, 2012. It is dated 22nd day of August, 2012. The three grounds of appeal and their particulars are as follows:
“2. PART OF THE DECISION COMPLAINED OF:
The whole judgment/order of the High Court Owerri Division (Coram Honourable Justice Nonye Okoronkwo) dated the 30th day of July, 2012.

GROUND ONE: ERROR IN LAW:
The learned trial judge erred in law when he held as follows: It has not been shown that there was any direct or intentional act of the defendant that resulted in the deprivation of the Plaintiff or his ownership or possessory right in his property in question. On the fact of the case, it seems to me that the defendant merely made a report to the police of a possible case of common nuisance or conduct likely to endanger peace on reasonable grounds and the police acting upon such complaint acted by removing the alleged nuisance, it was not shown that the defendant besides making the complaint procured or prodded the police into activity which activity the police would not otherwise have undertaken. This was not demonstrated.”

PARTICULARS OF ERROR:
i. The detention of a plaintiff’s chattel becomes a conversion if it is adverse to or inconsistent with the rights of the plaintiff or other person entitled to its possession.
ii. To be liable for conversion, the defendant must be shown to have demonstrated an intention to detain or withhold the chattel in defiance of the plaintiff.
iii. The usual mode of establishing that a detention of chattel by a defendant is adverse to rights of the owner or other person entitled to its possession is to prove that Plaintiff demanded the delivery of the chattel and that the defendant refused or neglected to comply with the demand.
iv. It is not in doubt that from the evidence led before the court, the appellant made several repeated demands on the respondent to return his two vehicles namely Hyundi Bus with REGISTRATION No AT 870 WER AND Mitsubishi Colt Car with registration No. AE 908 AERY but the respondent refused to return same to the Appellant.
v. A conversion is committed where there is a positive wrongful act of dealing with the owner’s right.
vi. Where there is an intention in so doing to deny the owner’s rights or to assert a right inconsistent with them a tort of conversion is committed.
vii. The inconsistency in dealing with the claimant’s chattel is the gift of the action for conversion and there need not be any positive intention to challenge the true owner’s rights.
viii. The appellant led enough evidence showing that the respondent dealt in his chattel in a manner inconsistent with his right and this piece of evidence was not contradicted or rebutted in any way by the Respondent.

GROUND TWO: ERROR IN LAW
The learned trial judge erred in law when he held as follows:
In the final analysis, I hold that no case is made out by the Plaintiff in conversion and the damages claimed are unmerited.

PARTICULARS OF ERROR
i. The appellant led evidence that the respondent wrongfully dealt with his chattel (two vehicles) in a manner inconsistent with his rights and this piece of evidence was not challenged by the Respondent in any way.
ii. This was clear intention on the part of the respondent to deny the appellant his right over his chattels, although there need not be any positive intention to challenge the plaintiff’s rights over the goods (i.e the two vehicles.)
iii. The appellant led evidence which was not contradicted or controverted in any way through cross-examination that the Respondent’s conduct in detaining his chattels (Two vehicles) despite his repeated demand on the respondent to return same to him occasioned great hardship on and his families.
iv. The appellant suffered loss of use of his two vehicles and he incurred great expenses in hiring alternatives for his use.

GROUND THREE: ERROR IN LAW
The learned trial judge erred in law when he held as follows:
Accordingly the case of the Claimant is dismissed with N50,000.00 costs to the defendant.”

PARTICULARS OF ERROR
i. The trial court was wrong to have dismissed the Appellant’s case with a cost of N50,000.00 in favour of the Respondent.
ii. The finding of the Lower Court that no case is made out by the Plaintiff in conversion and damages claimed are unmerited which finding led to the dismissal of the case of the claimant with N50,000.00 costs to the respondent occasioned a miscarriage of justice.
Further grounds of appeal will be filed on receipt of the record of appeal.”

The Appellant filed his Brief of Argument dated 20th day of November, 2012 on 11th day of December, 2012. The Respondent filed Respondent’s Brief of Argument dated 27th day of September, 2013 on 30th day of September, 2013. It was deemed filed on 2nd day of October, 2013.

The appeal came up for hearing on 24th day of February, 2015. The Respondent abandoned what he titled:
“NOTICE BY DEFENDANT/RESPONDENT OF INTENTION TO RELY UPON PRELIMINARY OBJECTION – ORDER 10 OF THE COURT OF APPEAL RULES 2011”
whereupon the Learned Counsel to the parties adopted their Briefs of Argument. The Appellant formulated three issues as follows.
1. Whether the judgment of the trial court was on merit when it did not properly evaluate evidence of the parties and exhibits tendered by the Appellant.
2. Whether failure of the trial court to make a finding or pronouncement on the appellant’s two vehicles Mitsubishi Colt with registration No.AE908 AFR and HYUNDAI BUS WITH REGISTRATION NO. AT 870 WER detained at the State C.I.D of the Imo State Police Command Owerri at the prompting of the respondent till date does not constitute a denial of fair hearing and therefore occasioned a miscarriage of justice.
3. Whether the trial court was right when it dismissed the appellant’s case with cost of N50,000.00 to the Respondent when the evidence led by the Appellant was not contradicted by the Respondent through cross-examination.

On his part, the Respondent formulated the following three issues viz:
1. Whether the trial Court properly dealt with and disposed in accordance with law the specific legal issues presented by the parties and if so, whether a pronouncement by the trial Court on the Plaintiff/Appellant’s vehicles and exhibits tendered or the cross-examination of the Plaintiffs/Appellants on his evidence on damages he allegedly suffered were necessary or of any moment in the circumstances (Grounds 1, 2 and 3)
2. Whether the Appellant discharged the burden on him to rebut on appeal, the findings of fact by the trial court that “….. it was not shown that the defendant besides making the complaint procured or prodded the police into activity which activity, the police would not have otherwise undertaken and, if not, whether the Court of Appeal can disturb such findings of fact. (Ground 1 and 2).
3. Whether the trial Court was right to have dismissed Plaintiff/Appellant’s case with a cost of N50,000.00 (Ground 3).

The Respondent having under issue1 shown that that issue covers the three grounds of appeal filed by Appellant; he has thereby foreclosed himself from raising further or any issues on the three grounds of appeal. Issues 2 and 3 of Respondent’s Brief of Argument are hereby struck out for their being incompetent or invalid. I believe the issues distilled by the appellant can be utilized to determine this appeal. I will treat them seriatim.

ISSUE 1
WHETHER THE JUDGMENT OF THE TRIAL COURT WAS ON THE MERIT WHEN IT DID NOT PROPERLY EVALUATE THE EVIDENCE OF THE PARTIES AND EXHIBITS TENDERED BY THE APPELLANT.

The learned Counsel to the Appellant I.C. ONWUKWE Esq related this issue to ground one of the Appellant’s appeal. He submitted that the learned trial Judge did not properly evaluate the evidence of the parties and the exhibits tendered at the trial. That the appellant tendered his vehicle particulars to the two vehicles wrongly and unlawfully detained at the State C.I.D. Owerri and which according to learned Counsel they are still being detained; at the prompting of the respondent. That the Respondent admitted under cross examination that that the cars were removed in the absence of the Appellant. That Respondents did not deny that the particulars he (Appellant) tendered were related to the two vehicle. That if the Learned trial Judge had properly evaluated the evidence of the parties and the Exhibits tendered he would not have dismissed the Appellant’s case. He relied on the case of S.I.B VS ANUMNU (2008) ALL FWLR (PT 399)S 469.

The Learned appellant’s counsel submitted that once it is shown that the trial court failed in its primary duties of appraising and ascribing probative value to the evidence before it or has drawn the wrong conclusions therefrom, the Appellant would succeed. That in this case the trial court did not consider the aforesaid exhibits and that failure so to do occasioned a miscarriage of justice. He relied on the case of OGUNJEMILA VS AJIBADE (2010) 11 NWLR (PT 1206) 559 at 579 C-F. He urged the court to answer issue one in the negative.

Responding to the above submissions under issue 1, the Learned Counsel to the Respondent H.N.G AMADI Esq stated that at the trial court both parties agreed on two related issues which are removal of the Appellants two cars from the premises where he was a tenant and whether the Respondent could use the police to have those cars removed on ground of obstruction. That the cars were so removed on the complaint of the Respondent to the police. He referred this court to the findings of the learned trial Judge on page 171 of the record.

AMADI Esq submitted that the law is trite that parties are bound by case put toward. He relied on the case of ORUNENGIMO & ANOR VS EGBE & ANOR 7 SC (Pt. 11) 197 that the court is also bound to confine its findings to issues submitted to it for resolution. That that precisely was what the Lower Court did and came to the conclusion that the Appellant did not make out a case of conversion by a mere report on reasonable ground to the Police over obstruction. That the Court could not have made any pronouncement on the vehicles and exhibits having found that Appellant did not make out a case. That there was no prayer in the appellant’s claim in the court below requesting the court to make any order on the Police who are undisputedly in possession of the vehicles. That the Police was not made a party to the appellants action. That the Court could not have made an order in vacuum.

He submitted that question whether the appellant was cross-examined or not on his written deposition became of no moment because if there was no liability in conversion, there was no need to probe further by cross examination on damages alleged by appellant.

He submitted that the final decision reached by the Court was properly supported.

Now, before arriving at a decision in any cause or matter, the duty to be performed by the parties and the court are well defined by the Rules of the relevant court. The parties have the burden to call believable evidence in support of the pleadings. Thereafter the court will assess and evaluate the pieces of evidence led along the various submissions of Learned Counsel to the parties. The trial Court will then place the case of the parties on an imaginary scale in order to determine which of the parties to believe. See the case of ALIYU BALOGUN VS ALHAJI SHITTU LABURAN (1988) 3 NWLR (PART 80) 66 at 84 per Late Legal Giant and Eminent jurist, OPUTA JSC of blessed memory who had this to say:
“Also when pleadings have been filed the onus is on the Plaintiff to prove the averments in his statement of Claim and on Defendant to prove what he averred in his Statement of Defence. Proof by preponderance of evidence simply means that the evidence adduced by the Plaintiff should be put on one side of the scale mentioned in ODOFIN & ORS. VS MOGAJI & ORS. (1978)S ILRN 212 and the evidence adduced by the Defendant put on the other side of that scale and weighed together to see which side preponderates.”
See also MOGAJI VS ODOFIN (1978) NSCC 275 at 277-278 per Late Eminent Jurist FATAYI WILLIAMS JSC later CJN.

The appellant had contended that the Respondent agreed under cross examination that the cars were recovered in his absence. What the respondent admitted can be seen on page 106 of the record under cross examination. The Respondent answered as follows:
“5. I had on an occasion made a complaint against the Plaintiff for threats to my life.
6. Claimant was around when the cars were removed (a day before the cars were reproved).
7. I have pleaded with the tenant to remove the vehicle but he threatened to use his gun being a Customs Officer. Other tenants have approached him with similar results.
8. It was the Police that removed the car.
9. the car has been parked for more than five years without being moved.
10. The defendant parked 4 cars in the premises (sic)
11. The cars are in the Police net. Ends.”

Now in his witness deposition sworn on 27/8/2011, the Defendant in paragraphs 22-38 thereof stated that the State C.I.D Police Officers in Owerri Imo State came to remove the two vehicles to their station based on his petition. Upon the adoption of his witness statement on Oath, the deposition became evidence before the trial court. There is nothing to disprove the statement and evidence of the Respondent that it was the Police that took the Appellant’s cars or vehicles to the State C.I.D Police Station, Owerri. In other words, it was the Police who took the said vehicles into their custody. The vehicles were not and are not in the custody of the Respondent.

In this case on appeal, the Appellant has failed to show that the two vehicles are in unlawful possession of the Respondent. The Learned trial Judge who heard and observed the witnesses and evidence proffered before him examined the evidence and came to the conclusion that what the Respondent did was to merely report Appellant’s conduct to the Police. The trial court said:
“It was not shown that the defendant, besides making the complaint, procured or prodded the Police into activity which activity the Police would not otherwise have undertaken. This was not demonstrated”

I agree with the Learned trial Judge that on the facts and the evidence, the Appellant did not make out a case in conversion to warrant any damages being awarded against the Respondent.
See HENRY STEPHEN ENGINEERING LTD. VS. S.A. YAKUBU (NIG.) LTD. (2009) 10 NWLR (PART 1149) 417 at 432, 434 H – 435 A-B per TABAI JSC.

The Learned Counsel to the Appellant had even stated that:
“The appellant in proof of his case tendered vehicle particulars of his said two vehicles wrongly and unlawfully detained at the State C.I.D. Owerri and which still begging (sic) detained there till date by the Police at the prompting of the Respondent.” See paragraph 2.03 of Appellant’s Brief.”

In essence the Respondent is not in possession of the two vehicles but the Police. I am of the view that the Learned trial Judge properly and adequately assessed and evaluated the evidence before him and came to the right decision based on the oral and documentary evidence before him.

Issue One is hereby resolved against the Appellant.

ISSUE 2
WHETHER THE FAILURE OF THE TRIAL COURT TO MAKE A FINDING OR PRONOUNCEMENT ON THE APPELLANT’S TWO VEHICLES MISTUBISHI COLT WITH REGISTRATION NO. AE 908 AFR AND HYUNDAI BUS WITH REGISTRATION NO. AT 870 WER DETAINED AT THE STATE C.I.D OF THE IMO STATE POLICE COMMAND OWERRI AT THE PROMPTING OF THE RESPONDENT TILL DATE DOES NOT CONSTITUTE A DENIAL OF FAIR HEARING AND THEREFORE OCCASIONED A MISCARRIAGE OF JUSTICE.

The Learned Counsel to the Appellant I.C. ONWUKWE Esq. tied this issue to ground 2 of the appeal. He stated that the Appellant led evidence that the respondent wrongfully dealt with this chattel (two vehicles) in a manner inconsistent with his right despite his repeated demands on the Respondent to release same to him and that his evidence was not challenged or contradicted in any way through cross examination. That the court ought to have accepted his unchallenged evidence. The Appellant relied on the case of ABBAH VS. JABUSCO (NIG.) LTD. (2008) 3 NWLR (PT. 1075) 526 at 564 B-F. That the failure of the trial Court to make a finding on the two vehicles wrongfully detained at the State C.I.D. Owerri till date at the prompting of the respondent constitute a denial of fair hearing and has occasioned a miscarriage of Justice. He relied on the case of NKWOCHA VS. MTN (NIG.) LTD. (2008) 11 N.W.L.R. (PT. 1099) 439 at 460 A-B.

In response to the above submission, H.N.G. AMADI Esq. relied on the finding of the trial Court to the effect that mere report to the Police without more would not render the Respondent liable in conversion.

That the Appellant has not been able to rebut the correctness of the finding of the trial Court. That the ground of appeal did not really attack the finding of the Lower Court. He urged the Court to uphold the decision of the court below.

Can it really be said that there is a denial of fair hearing or miscarriage of justice in this matter?

Both sides to this appeal are at one that the Appellant’s cars were removed by Police Officers from STATE C.I.D. Police Station Owerri and the two cars are still in the custody and premises of the Police. That it was as a result of the report made against the Appellant by the Respondent that those vehicles were removed to the Police Station.

In this case, notwithstanding that the Appellant knew and still knows that his vehicles are with the Police which vehicles were removed from the Appellants premises where he was/is a Tenant, there is nothing to show that he has demanded from the Police the return of his vehicles which from the evidence on record and by Appellants narration were taken into detention or custody of the Police by the Police. What is more the Appellant failed to make the Police a party to his action so that the trial Court could have made an order for their release against the Police if appellant had made a case for it and proved his entitlement to their recovery.
The Police is a necessary party to this case otherwise the action could not be said to have been properly constituted. See CHIEF (DR.) OLADELE FAJEMIROKUN VS. COMMERCIAL BANK (CREDIT LYONNAS) NIGERIA LTD. & ANOR. (2009) 5 NWLR (PART 1135) 588 at 600 per Ogebe JSC who said:
“I do not agree with this submission. Since the appellant’s case was that the respondents reported him to the Police, who then arrested and detained him, it was necessary for him to join the Police for them to explain the reason for the arrest to show whether there was a reasonable cause for his arrest.”
On his part Muktar JSC in the said case had this to say on pages 605 to 606 A-D:
“Considering the above reproduced facts deposed by both sides to the litigation. What are the facts that have been proved in support of the application, or that have shown infringement of the applicant’s right? None. I think in the first place the claim of the applicant/appellant was premised on unlawful arrest and detention by the Police not the respondents (although at the instance of the respondents). Secondly, the assertion that the applicant was alleged to have been detained for theft was not proved, as the applicant did not exhibit any document to that effect. Thirdly, there was admission of the allegation indebtedness, which was the cause and root of the whole problem which triggered off the application at the Lagos High Court. It is very clear that series of cheques that bounced were issued by the appellant’s company, (acts which were criminal in nature), for which the respondents were at liberty to resort to the Police for their intervention, by reporting the matter to them. As citizens of Nigeria they have the choice to exercise their legal rights of placing their grievance before the Police, being custodians of law and order, and that is where their own impute stops. Whatever action the Police take thereafter is not solely their responsibility and they are not solely liable. In this vein, the reliefs sought by the applicants against the Respondents should not be against them alone if at all they instigated the action. If at all there was ‘arrest’ and detention, it was not done by the Respondents, but the Police who had the authority to do so. At most the Police should have been joined. The ‘arrest’ “invitation”, and or detention may have been caused by the steps taken by the Respondents, but as I have said earlier on, the respondents were exercising their legal rights to seek the Police intervention.”
His Lordship of the Supreme Court Muhammed JSC also said on pages 620 H to 621 A-C held thus:-
“From the above, it appears to me that I prefer to go along with the two Lower Courts in their decision in holding that the Police is a necessary party. They played a number of key roles which no one would explain better than themselves, for example, the arrest, detention and temporary denial of use and confiscation of the appellant’s mobile telephone. The Police is a necessary party in this case. They ought to have been made Co-Defendants in the first instance or be joined as a necessary party in order to enable the Court effectively and completely adjudicate upon and settle all the questions involved in the case especially those relating to the Police. See: Akanbi & Ors. V. Fabunmi & Anor. (1986) 2 SC 431. Failure to make the Police a party is fatal to the claims of the Appellant/Applicant.”

I am of the opinion that the findings of the Learned trial Judge is not a denial of fair hearing and he was perfectly correct in not making any order or pronouncement on the two cars involved. There is no miscarriage of Justice of any sort.

Issue 2 is resolved against the Appellant.

ISSUE 3
WHETHER THE TRIAL COURT WAS RIGHT WHEN IT DISMISSED THE APPELLANT’S CASE WITH A COST OF N50,000.00 TO THE RESPONDENT WHEN THE EVIDENCE LED BY THE APPELLANT WAS NOT CONTRADICTED BY THE RESPONDENT THROUGH CROSS-EXAMINATION.

The Learned Counsel to the Appellant dwelt so much on his earlier submission to the effect that the evidence of Appellant remained unassailable and assumes the position of proven facts. He therefore believes that the costs of N50,000 awarded against the Appellant by Lower Court is wrong. He agrees that costs are awarded at the discretion of the court but must be judicially and judiciously awarded by taking into account certain factors like:
(a) All fees paid for fitting and prosecution of the case.
(b) Allowances for Counsel’s fees.
(c) Reasonable out of pocket expenses.
(d) Rules of Court where applicable.

He relied on the case of OZIGBU ENGR CO. LTD. VS. IWUAMADI (2011) ALL FWLR (PT. 553) 1975 at 2001-2002 F-A. That in the instant case there was no justification for the award of N50,000 costs against the appellant. That the trial court did not advert its minds to fundamental principles relating to costs. In response to the above submissions on costs, the Learned Counsel to the Respondent contended that the costs awarded by the court below was proper in the circumstance. That since the Lower Court found that no case was made for tort of conversion, it becomes immaterial that the Respondent did not cross-examine the Appellant on his written deposition and bogus claim for damages. That the factors to be taken into consideration in award of costs were actually in support of the costs of N50,000 awarded by Lower Court. He urged the court to dismiss the appeal.

The sheat achor upon which the Appellant relies for his challenge to costs awarded is that his evidence was not challenged. But the position glued to by the Appellant had been punctured. There is clear findings that were admitted by Appellant himself that his vehicles are with the Police. No remedy can be decreed against a person who is not in possession of the chattel or property allegedly converted in tort of conversion. My findings under issues 1 and 2 show that the costs made in favour of the Respondent is in order. The Court cannot compel the performance of impossibility. The cars are not in possession of Respondent and there is no evidence before the court to prove conversion laid against the Respondent.

See: Order 49 Rule 1(1) of the High Court of Imo State (Civil Procedure) Rules 2008 provides:
“In fixing the amount of costs, the principle to be observed is that the right is to be indemnified for the expenses to which he has been necessarily put in the proceedings, as well as compensated for his time and effort in coming to court. The Judge may take into account all the circumstances of the case.”

I therefore hold that pursuant to the above Order and facts found by the trial Judge, the costs of N50,000 (Fifty Thousand Naira) awarded against the Appellant is justified.

In the result the Appellant’s appeal fails as it lacks merit. The Appellant’s appeal is hereby dismissed.

The Judgment of the High Court of Imo State delivered by Honourable Justice NONYE OKORONKWO (as he then was) on 30th July, 2012 is hereby affirmed.

There will be no order as to costs.

ITA GEORGE MBABA, J.C.A.: I have read the lead judgment of my learned brother, Peter O. Ige JCA, and I agree with his reasoning and conclusions and also dismiss the appeal for lacking in merit. I abide by the consequential orders in the lead judgment.

FREDERICK O. OHO, J.C.A.: I have had the preview of the judgment just delivered by my learned Brother, P.O. Ige, JCA. I entirely agree with it that I have nothing further to contribute thereto.

I will myself confirm the Judgment of the Lower Court and accordingly dismiss the Appeal. There shall be no orders as to costs.

Appearances

Appellant not represented in Court.For Appellant

AND

H.N.G. Amadi Esq.For Respondent