HRH EZE OKECHI JACOB ANANABA v. FRI-EL ABA PALM NIGERIA LIMITED & ORS (2016)

HRH EZE OKECHI JACOB ANANABA v. FRI-EL ABA PALM NIGERIA LIMITED & ORS

(2016)LCN/8335(CA)

In The Court of Appeal of Nigeria

On Monday, the 21st day of March, 2016

CA/OW/179/2013

RATIO

CONSTITUTIONAL LAW: FAIR HEARING; WHETHER A PERSON CAN BE CONDEMED IN ABSENTIA

By virtue of Section 36(1) of the 1999 Constitution a person cannot be condemned in absentia without affording him opportunity of being heard.
See: NICHOLAS CHUKWUJEKWU UKACHUKWU VS. PEOPLES DEMOCRATIC PARTY & ORS. (2014) 2 SCM 202 at 223 F – D to 224 A – H where K. M. O. KEKERE – EKUN, JSC said:-
“The fundamental issue to be considered in the resolution of this issue is what is meant by fair hearing? The constitutionality of the right to fair hearing is not in doubt. Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides thus:
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law constituted in such a manner as to secure its independence and impartiality.”
It is also well settled that any proceedings conducted in breach of a party’s right to fair hearing, no matter how well conducted would be rendered a nullity.” per. PETER OLABISI IGE, J.C.A.

EVIDENCE: STANDARD OF PROOF: THE STANDARD OF PROOF FOR COMMISSION OF CRIME IN A CIVIL PROCEEDING

This is because of the settled position of the Law that where a party to a Civil Proceeding accuses his adversary of commission of a Criminal act he must comply with Section 135(1) of the Evidence Act 2011 which provides:
“135(1) If the Commission of a Crime by a party to any proceeding is directly in Issue in any Proceeding Civil or Criminal, it must be proved beyond reasonable doubt.
See: (1) ALAHAJI ISIYAKU YAKUBU VS. ALHAJI USMAN JAUROEL & ORS. (2014) 8 SCM 215 at 233 B – G per FABIYI, JSC who said:
“Let me develop this point further. Allegation of fraud must be proved beyond reasonable doubt. Such must not leave room for speculation. It is proof in the realm of probability and not fantastic possibility that is required. See: Nwobodo v. Onoh (1984) I SCNLR 1 at 27 – 28; Omoboriowo v. Ajasin (1984) 1 SCNLR 108; Section 138 of Evidence Act, Cap. 12 LFN, 1990.
Standard of proof for commission of crime in civil cases as alleged herein is the same as in criminal cases. per. PETER OLABISI IGE, J.C.A.

TORTS: DETINUE; THE CONCEPT OF DETINUE AND THE NATURE OF AN ACTION IN DETINUE

See: (1) FBN PLC. VS. OLUFEMI SONGONUGA (2005) LPELR – 7495 (CA) per CLARA BATA OGUNBIYI JCA now JSC who said on page 41 – 42 as follows:
The concept of detinue had been defined in Black’s Law Dictionary, 5th Edition at page 405 as:-
“A form of action which lies for the recovery, … of personal chattels from one who acquired possession of them lawfully, but retains without right, together with damages for the detention.
Possessory action for recovery of personal chattels unjustly detained… The action of detinue is defined in the old books as a remedy founded upon the delivery is of goods by the owner to another to keep, who afterwards refused to redeliver them to the bailor, … It is necessary that the defendant should have come lawfully into the possession of the chattel either by delivery to him or by finding it.” (Italics is mine).
Detinue as expounded in Black’s Law Dictionary therefore, is a possessory action for recovery of property unjustly detained. It is an action, which lies for the recovery of property from one who acquired possession of it but retains the same wrongfully, illegally or without right, together with damages flowing from or for the detention. In the Supreme Court’s decision of Labode v. Otubu their Lordships held that detinue is:-
“a wrongful detention of plaintiff”s chattel by a defendant which is evidenced by the refusal of the defendant or his agent to deliver the chattel upon demand. The original taking may be lawful … the detention becomes wrongful if the defendant has no reasonable justification for retaining the goods.”
(2) AMINU ISHOLA INVESTMENT LTD. VS. AFRIBANK (NIGERIA) PLC (2013) 9 NWLR (PART 1359) 380 at 403 E – F per ALAGOA JSC who said:
“What is the nature of an action in detinue? In Kosile v. Folarin (1989) 3 NWLR (Pt. 107) 1 at p. 10 para. C; (1989) 4 SC (Pt. 150) the Supreme Court per Nnaemeka Agu, JSC held as follows,
“… It must be clearly stated that in an action for detinue the gist of the action is the unlawful detention of the plaintiff’s chattel, which he has an immediate right to possess, after the plaintiff has demanded its return.”
(3) ENTERPRISE BANK LTD. VS. DEACONESS FLORENCE BOSE AROSO & ORS. (2014) 3 NWLR (PART 1394) 256 at 298 F – H per RHODES ? VIVOUR, JSC who said:
“I must explain the correct position of the law on detinue. The essence of detinue is that the defendant holds on to property belonging to the plaintiff and fails to deliver the property to the plaintiff when a demand is made. The goods must be in the custody of the defendant at the time the demand for them is made before an action in detinue can succeed. The cause of action in detinue is the refusal of the defendant to return the goods to the plaintiff after the plaintiff must have made a demand for them. A claim for detinue would fail if at the time the plaintiff made a demand the goods were not in the defendants’ actual possession. In such a case the plaintiff might have a cause of action in conversion but definitely not detinue. The plaintiff can still sue in detinue and succeed if he is able to show by credible evidence that the defendant wrongfully or improperly parted with possession of the goods before the plaintiff made a demand for them.” And further on what a Claimant must prove to succeed in detinue action the Case of ENTERPRISE BANK LTD. V. AROSO Supra pages 296 H to 297 A – C provides the answer thus:
“To succeed in a Claim of/for detinue the plaintiff (in this case the respondents) must plead and lead credible evidence to establish the fact that:
1. He is the owner of the property.
2. He has an immediate right to possession of the property.
3. The defendant (appellant) is in actual possession of the property.
4. That he (the respondents) made a demand on the defendant to deliver/return his property to him.
5. That the defendant (appellant) continues to hold unto the property without lawful excuse and the defendant failed to deliver the property despite repeated demands.
It is settled that there is no controversy as regards 1, 2, 4 above. The issue is whether the Claim for detinue can succeed in the light of the fact that the goods were no longer in the custody of the appellant when the respondents made a demand for them on 14/8/97.”
Per RHODES – VIVOUR JSC” per. PETER OLABISI IGE, J.C.A.

JUSTICES

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

HRH EZE OKECHI JACOB ANANABA Appellant(s)

AND

1. FRI ? EL ABA PALM NIGERIA LIMITED (FORMERLY ABIA PALM (NIG) LTD UKWA)
2. MR. THOMAS GOSTERN, PRESIDENT, FRI-EL ABIA PALM (NIG) LTD
3. ATTORNEY GENERAL OF ABIA STATE Respondent(s)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against part of the decision of ABIA STATE HIGH COURT, UMUAHIA DIVISION, contained in the Judgment of Honourable Justice S. A. NWAKANMA delivered on the 22nd day of November, 2012.

The Appellant as Claimant had by his amended Statement of Claim claimed against the Respondents as Defendants at the trial Court the following reliefs:
1. A declaration of the Honourable Court that the Claimant is still a member of staff of the 1st Defendant company by reason of rejection by 1st Defendant of the Claimant’s voluntary withdrawal/retirement from the services of 1st Defendant on 27th March 1997.
2. An Order directing the 1st and 2nd Defendants to implement forthwith the directives of the Abia State Government in their respective memoranda to the 1st and 2nd Defendants on the status of the Claimant vis-a -vis the Claimant’s employment with the 1st Defendant Company.
3. An Order directing the 1st and 2nd Defendants to assess, ascertain and determine the Claimant’s present rank and status inclusive of his promotions in the employment and

service of the 1st Defendant up to the date of Judgment.
4. An Order directing the 1st and 2nd Defendants to pay to the Claimant forthwith all his arrears of salaries and other emolument accruing and are still accruing to the Claimant as an employee of the 1st Defendant with effect from and inclusive of the month of June 1996 till he is properly disengaged from service.
5. An Order quashing the ?indefinite suspension? clamped on the Claimant by the 1st and 2nd Defendants since 27th March 1997 for been a violation of known principles of equity, justice, and contrary to Public Service Rules of Abia State as well as Senior Staff conditions of Service of the 1st Defendant.
6. An Order directing the 1st and 2nd Defendants to release forthwith to the Claimant in good conditions all his original academic certificates and other documents seized and detained by the 1st and 2nd Defendants since 17th July 1992 after unlawfully breaking into the Claimant?s Official Quarters.
7. Ten Million (N10,000,000.00) general damages against the 1st and 2nd Defendants in favour of the Claimant for unlawful invasion of Claimant?s Official

Quarters on 17th July 1992, seizure and detention of his properties.
8. Four Hundred and Ninety-Nine Thousand, Seven Hundred Naira (N499,700.00) being special damages for the cost of Claimant?s personal properties lost as a result of 1st and 2nd Defendant?s unlawful invasion of his official quarters on 17th July 1992, seizure and detention of his properties without lawful orders of Court and refusal to release them upon demand by the Claimant.

The 3rd Defendant exchange pleadings with the Claimant now Appellant. The 1st and 2nd Respondent did not defend the action. The matter proceeded to trial at the end of which the learned trial Judge in a considered Judgment found for the Appellant as follows:
“Having exhaustively reviewed the evidence presented by the parties. I have come to the conclusion that Abia Palm Nigeria limited is now the 1st Defendant Company of which the Abia State Government has always played a part in a role. The Defendants must comply with conditions of service (Exhibit ?C?) entered into between them and the Claimant, particularly with respect to Discipline of Senior Staff. I therefore grant

Reliefs 1, 2, 3, 4 and 5. I refuse Reliefs 6 and 8 due to the inability of the Claimant and failure to prove the allegations beyond reasonable doubt. Relief No. 7 which is a Claim for general damages cannot be granted because it relates to the unlawful invasion of the Claimant?s house seizure and detention of his properties. The Claimant as earlier stated did not produce sufficient evidence to show exactly what happened and those who were physically involved.
This Claim for general damages cannot be awarded as a matter of course. Since it is tied to the allegation of a crime, which has not met the standard of proof required.
There is no Order as to cost.?

Aggrieved by the refusal of the trial Judge to grant reliefs 6, 7 and 8 as contained in the Appellant?s prayer in his Amended Statement of Claim, the Appellant has now appeal to this Court vide his Notice and Grounds of Appeal dated the 12th day of February, 2013 filed on the same date containing three (3) as follows:
?3. GROUNDS OF APPEAL
A. ERROR OF LAW AND FACTS
PARTICULARS OF ERROR
(i) The Lower Court erred in law by refusing to act on the

unchallenged and uncontroverted evidence (both oral and documentary) as well as in the pleadings where admissions were made by the 3rd Defendant with respect to the invasion of the Claimant?s Official residence, removal of the Claimant?s properties and detention of same by the 1st and 2nd Claimant?s who inherited the defunct Abia Palm Nigeria Limited as Claimant?s employer.
(ii) The Lower Court erred in law and on the facts by treating the unchallenged evidence of the invasion, removal and seizure of Claimant?s properties by his employer as a mere criminal allegation requiring proof beyond reasonable doubt whereas the Claimant?s action and pleadings were on tort of detinue and damages without any imputation of crime.
(iii) The requirement of proof in the circumstances of this Case is quite minimal in the face of pleadings and correspondences tendered as Exhibits which were not challenged pointing irresistibly to the tortuous liability of the Claimant?s employer on the issue raised, but the learned trial Judge misdirected himself or erred by foisting a burden of proof on the Claimant based on criminal standard

of proof which was entirely outside the radar of this Case as disclosed by the pleadings.
(iv) The learned trial Judge erred in law and on the facts by holding that the Claimant did not adduce sufficient evidence either oral or documentary to show who carried his properties as the pleadings of the Claimant particularly paragraphs 17, 18 and 19 of the Amended Statement of Claim as well as the admission of the 3rd Defendant in paragraph 15 of the 3rd Defendant?s Amended Statement of Defence including the correspondences to that effect by both the 3rd Defendant and the Ministry of Agriculture and Natural Resources, Umuahia including Claimant?s memos tendered as Exhibits unchallenged were more than sufficient evidence to warrant the Lower Court to grant the reliefs it refused.
(v) There was no proper evaluation of the bundle of evidence placed before it by the Lower Court thereby proceeding to arrive at a wrong conclusion with respect to reliefs Nos. 6, 7 and 8 respectively.
B. WRONG EXERCISE OF DISCRETION NOT TO AWARD COSTS
PARTICULARS OF ERROR
(i) The award of costs is a legal consequence of successful actions in Court which

is at the discretion of the Court, but the discretion exercised by the Lower Court in the circumstances of this case was not exercised judiciously and judicially since the claimant?s action was not unmeritorious, but partly successful as found by the Lower Court.
(ii) The claimant?s ordeals for the past 13 years he was placed on ?an indefinite suspension? without half-salary till date and the huge costs incurred in litigation to reverse the injustice ought to have impressed it on the mind of the Lower Court to award costs to mitigate the incidents of litigation occasioned by the recklessness of the 1st and 2nd Defendants.
C. The decision complained of is against the weight of evidence.
More grounds of appeal may be filed on receipt of the record of proceedings.
4. RELIEF SOUGHT FROM THE COURT OF APPEAL
(a) An Order setting aside the decision of the Lower Court with respect to reliefs Nos. 6 and 8 in the Claimant?s Amended Statement of Claim by substituting same with its own decision by granting those claims or reliefs.
(b) An Order setting aside the decision of the Lower Court with respect to relief

No. 7 in the Claimant?s Amended Statement of Claim on award of general damages, and assume jurisdiction under its statutory powers to determine the appropriate damages to be assessed and award same to the claimant in the circumstance of this case.
(c) An Order awarding costs to be assessed both at the Lower Court and at the Court of Appeal in this Suit in favour of the Claimant.?

The Appellant filed his Brief of Argument in this appeal on the 18th day of July, 2013. It is dated 17th day of July, 2013 while the 3rd Respondent?s Brief of Argument dated 14th day of October, 2013 was filed on 23rd day of October, 2013 but deemed properly filed on 28th January 2014. The Appeal was heard on 3rd day of February 2016 when the learned Counsel to the Appellant and 3rd Respondent adopted their Briefs of arguments.

The learned Counsel to the Appellant I. E. NWAOGAZIE Esq. formulated two issues for the determination of the Appeal viz:
1. Whether the learned trial Judge was right in Law in her reasoning and conclusion that Claimant?s Case as formulated with respect to Reliefs 6, 7 and 8 respectively on the Claimant?s

Pleadings constitutes a criminal allegation requiring proof beyond reasonable doubt under Section 135 of the evidence Act 2011 and if not, has the Claimant effectively discharged the burden of proof in Civil Claims on the preponderance of unchallenged oral and documentary evidence and admissions of the 3rd Defendant under Section 22, 23, and 134 of the Evidence Act, 2011 to be entitled to those Reliefs refused by the learned trial Judge. GROUNDS A and C.
2. Whether the learned trial Judge exercised his discretion judicially and judiciously by refusing to award costs in this Suit to the Claimant taking cognizance of the circumstances of this Case and its meritorious nature. (Ground B).

The learned Counsel to the 3rd Respondent also nominated two issues for the resolution of this appeal thus:
1. Whether the trial Court was right in Law in his reasoning and conclusion that the Appellant?s Case as formulated with respect to his reliefs 6, 7 and 8 consecutively in his pleadings (Amended Statement of Claim) and his evidence thereof, constitute criminal allegations requiring proof beyond reasonable doubt as required by Section 135 (1) and (2) of

the Evidence Act 2011.
2. Whether the trial Court wrongly exercised his discretion when he refused to award cost in this Suit in favour or against any of the parties including the Appellant.

I have no doubt in my mind that this appeal can be determined on the two issues distilled by the Appellant in view of the fact that the two issue formulated by 3rd Respondent are a rehash of the two issues formulated by the Appellant.
ISSUE 1
Whether the learned trial Judge was right in Law in her reasoning and conclusion that Claimant?s Case as formulated with respect Reliefs Nos. 6, 7 and 8 respectively on the Claimant?s pleadings constitutes a Criminal allegation requiring proof beyond reasonable doubt under Section 135 (1) of the Evidence Act 2011 and if not, has Claimant effectively discharged the burden of proof in Civil Claims on the preponderance of unchallenged oral and documentary evidence and admissions of the 3rd defendant under Section 22, 23 and 134 of Evidence Act, 2011 to be entitled to those reliefs refused by the learned trial Judge. (Grounds A and C).

The learned Counsel to the Appellant stated that the learned trial

Judge was wrong in placing reliance on Section 135 (1) of the Evidence Act 2011 to foist what he called “Criminality” on the facts disclosed in the Claimant’s pleading and evidence. He quoted the said Section of the Evidence Act and made reference to the finding of the learned Trial Judge on page 228 of the Record. He submitted that the act of forcefully breaking into the Claimant’s official residence by agents of 1st and 2nd Respondents on 17-7-1992 and the removal seizure and detention of Appellant’s properties in the Company’s Warehouse, the employers of Appellant with a view to ejecting him out of the official quarters would not amount to a crime committed against the Appellant by his employer. The Appellant opined that it was a civil wrong.

That a careful examination of pleadings of Appellant and Exhibits J, K, L and W and relies 6, 7 and 8 the way and manner they were couched show that Claimant did not raise issue of Crime against the 1st and 2nd defendants. That the trial Court ought to have confined itself to the issues raised on Appellants pleadings vis-a -vis that of Respondent. He relied on the Case of

EDEM V. CANNON BELL SLID (2005) 131 LRCN 2325 at p 2337 P ? U. That the trial Judge failed to state the type of crime raised on Claimant?s pleading. He relied on the Case ABDUL GANIYU VS. ADELEYE (2013) 6 WRN 107 at 129.

The learned Counsel submitted that detinue involves essentially seizure and detention of chattels against the will or consent of the owner and that it would ground action as in the instant case. He relied on NACENN (NIG) LTD. V. BEWAC AUTOMATIVE PRODUCERS LTD. (2011) 27 WRN 1 at 14-15. That in tort of detinue crime is not directly in issue and that the trial Court was in error in her finding that crime was directly put in issue.

That there was no denial by the Respondent of the allegations contained in the memos sent to 1st Respondent Exhibits J, K, L and ?W? demanding the release of Appellants Chattels and other Issues not connected with the appeal. That facts admitted needs no proof. He relied on the Cases of:
1. ABDULGANIYU V. ADELEKE (2013) 6 WRN 107 at 127.
2. IKARE COMMUNITY BANK VS. ADEMUWAGUN (2005) 2 FWLR (Pt 256) 187 and
3. NACEIIN (NIG) LTD. BEWAC AUTO (2011) 27 WRII.
That

Legal personality of a Company is settled, it can only act through its human agents and that in this case it was on the Orders of Internal Security personnel on the Orders of one J. N. NWAOGUEGBE the then Administrative Manager/Head of Project according to Appellant that broke into Appellant?s residence and carried out his chattels on Friday 17/7/98, the trial Judge ought to have found for Appellant. He relied on the Case of TRENCO (NIG) LTD. VS. AFRICAN REAL ESTATE (1998) ILRN 146 at 153 and OYEBANJI VS. THE STATE (2012) 5 WRN 66 at 77 ? 78.

That by paragraph 15 of 3rd Respondent’s Amended Statement of Defence, 3rd Respondent admitted Appellant’s assertion. That admission of 3rd Respondent is deemed to be admission of 1st and 2nd Respondents. Reliance was placed on Sections 22 and 23 of the Evidence Act. That a party can utilize the contents of other parties pleading to proof his own Case. He submitted that the trial Judge did not properly evaluate the evidence before it. That the 1st and 2nd Defendants did not join any issue with the Appellants on his pleadings and evidence hence there was no need for the trial Judge to place

heavy burden on the Appellant. That the onus on the Appellant was on minimal proof.
He relied on the Cases of:
1. NIGERIAN GENERAL INSURANCE V. EMOH (1990) 3 NWLR (PT 138) 314.
2. LEWIS & PEAT V. AKHIMIEN (1976) ALL NLR 460.
3. CHAMI VS. UBA LTD. (2010) 18 WRN 1 at 19/20.
4. OSUN STATE GOVT. V. DALAMI (NIG) LTD. (2003) 7 NWLR (Pt 818) 72 at 99.

That Appellant proved his Case on the preponderance of evidence under Section 133(1) (2) and 134 of the Evidence Act.

That this is a proper Case for this Court to interfere in the findings of trial Court as according to Appellant, the finding is not supported by the totality of evidence on record. He relied on Section 15 of the Court of Appeal Act in urging this Court to set aside the findings of trial Court and grant the reliefs 6, 7 and 8 as sought by the Appellant.

In Reply to the above submissions, the learned Counsel to the 3rd Respondent relied on Section 135(1) & (2) of the Evidence Act 2011 to submit that the allegation of the Appellant could be found in his written deposition adopted at the trial on 4/6/12 by the Appellant page 124 of the record and page 151, of

the record which the 3rd Respondent stated revealed crimes of breaking and entry or burglary and stealing. That though the Case was a civil one but offences disclosed are criminal in nature which the Appellant must proof beyond reasonable doubt as in a Criminal Case. Reliance was placed on page 134 paragraph 6 of the record where the Appellant sought for an order for release of his goods detained after “UNLAWFULLY BREAKING” into the Claimant Official residence. That Appellant accused the 1st and 2nd Respondents of house-breaking or Burglary. That it is upon prove beyond reasonable doubts that relief 6 and 8 could be granted. He urged the Court to uphold the finding of the learned trial Judge on page 228 of the record.

That it is immaterial that the trial Judge did not state the alleged crime as this could be deduced from the facts contained in the said allegation. The same submission was made in respect of relief 7 whereby the Appellant Claims N10,000,000.00 general damages for unlawful invasion of Claimant’s Official Quarters on 17/7/1992. The 3rd Respondent relied on the finding of the trial Judge concerning Relief No. 7 in page 229

Lines 1 ? 8 of the record to the effect that Appellant did not meet the required standard of proof required. That the submission of Appellant on detune is grossly erroneous as according to 3rd Respondent, action in detune will lie when a person detains the chattel of another against his will. That there is no such evidence on record in this appeal.

That from the account given by Appellant on page 124 para 19 of the record, Appellant did not witness the removal of the said chattels and/or who detained same. That return of Chattels can only be made when it is certain who is detaining the chattels.

That it must be noted that that in detinue, the Chattels must have lawfully come to the possession of the person detaining the goods. That in this Case there is no such evidence showing that Appellant lawfully delivered into the possession of anybody, his goods, before he could turn round to accuse the person subsequently detaining same. That no case of detinue was established before the trial Court.

That assuming the allegation made by Appellant does not amount to criminal allegation, the 3rd Respondent submitted that there is no evidence on

record oral or documentary linking the 1st and 2nd Respondents with the alleged events of 17/7/92. That the allegation of Appellant is founded only on mere suspicion as Appellant did not produce any eye witness who saw the breaking into the Appellant?s Official residence. That the Appellant must rely on the strength of his own Case and since he was the one asserting he ought to prove his allegation by credible evidence. That in this Case there was no such credible evidence.

The central attack against the Judgment of the Lower Court by the Appellant is that the trial Judge was wrong in holding that he did not lead credible evidence to proof allegation of crime contained in his pleadings against the Respondents to justify any of the reliefs in paragraph 65 (6) (7) and (8) of the Amended Statement of Claim.

?The allegation of breaking in and entry into the official residence of the Appellant was principally made in paragraph 19 of his Amended Statement of Claim against the servants of the 1st and 2nd Respondents. The said servants were not joined to this Suit. The Appellant pleaded in paragraphs 17, 18, 19 and 20 of his Amended Statement of Claim

thus:
?17. At all material times, the Claimant was living in his official quarters in the Mill premises at Mbawsi which Claimant furnished personally.
18. Claimant avers that while he was making arrangements to relocate and waiting for a vacant accommodation meant for him at the new Station Mbawsi which was at that time been occupied namely No. 100 Girl?s High School Road, Mbawsi Claimant traveled home on 17th July, 1992 been a Friday at the close of work to see his family.
19. Claimant further avers that on his return to his official quarters he discovered to his amazement and disappointment that the then 1st Defendant?s Senior Admin Manager/head of Project, Mr. J. N. Nwaoguegbe had directed the 1st Defendant?s internal security personnel to forcefully open his official quarters and removed all the Claimant?s properties and personal effects including academic certificates and NYSC Discharge Certificates, purchase receipts and other documents on Friday 17th July 1992 after he left. The Claimant shall plead and rely on all the properties listed in paragraph 63 of this Claim and their current market prices. Defendant

are hereby given notice to produce Claimant?s petition and the list of Claimant?s properties forcefully removed and seized till date addressed to the ministry of Agriculture and Natural Resources, Umuahia, the supervising ministry.
20. Claimant states further that the said Mr. J. N. Nwaoguegbe was not done yet as he withheld Claimant?s house allowances stopped his annual increment with a query. Claimant states that all his pleas for the return of his seized properties were rebuffed.?

No eye witness was called to link any of the said servants to the alleged breaking in and entry into Appellant?s Official Quarters. The Court does not operate in the realm of speculation otherwise it will be acting contrary to its character as a Court of Justice. I have examined all the Exhibits tendered there is no any iota of admission on the part of any of the Respondents. Under examination in Chief, the Appellant testified concerning the allegations made as follows:
?In paragraph 19, of pleaded 1st and 2nd Defendants invaded my house and remove some properties there upon

?Under cross examination of the

Appellant as PW1 he said:
?I stated that my official residence was broken into and my properties removed without my consent. It is true that the 1st Defendant took over Adapalm in 2008. I now state that the 1st Defendant took over Abia Palm. Adapalm on creation of Abia State was split into two. Adapalm continued the name of the part inherited by Imo State where Abia State own part became Abia Palm.
By 2008 the 1st Defendant took over Abia Palm. It was before 2008 when my official residence was broke into (sic).
The records are there in the file bearing the date.
It is true that the 1st Defendant had not taken over when my house was broken into and my properties removed. I was not at home when my official house was broken into. I was home on weekend. I agree that it was not the 1st Defendant that suspended me from office because they had not come at that time.?
(Pages 159 ? 160 of Record).

Then still under Cross Examination on page 161 of the Record thus:
?PW1: You are not entitled to any of your Claim predicated on your suspension and the breaking into your house.
Ans: I am entitled to all my

Claims.
I made a report to Mbawsi Police Station about the breaking in before I petitioned the Ministry of Agriculture. No staff of Abia Palm was prosecuted. By then the 1st Defendant FRI – EL was not in the picture. It was a comparing matter between me and the Company. Sic.”

It is necessary to allude to the submission of Appellant’s Counsel on page 14 paragraph 5. 18 of the Appellant’s Brief where submitted thus:
“5.18 It is not in dispute that it was the Internal Security personnel on the orders of one Mr. J. N. Nwaoguegbe the then senior Administrative Manager/Head of Project that broke into Claimant?s Official residence and carried out his Chattels on Friday 17th July 1998. The Legal personality of a Company is a settled Law that though it is artificial person it can only act through its human agents and officers.”

Firstly the year pleaded in paragraph 19 of Appellant’s Amended Statement of Claim on “breaking in and entry” into his official residence was 17th July 1992 and Not 1998. Secondly the pleading directly accused persons who were not joined as parties to the action

viz:
1. Internal Security Personnel and
2. MR. J. N. NWAOGUEGBE.

how well conducted would be rendered a nullity.”

Again there ought to have been evidence of eye witness who saw the persons accused of “breaking in and entry” into Appellant’s house to cart away his properties as alleged by him. The said persons must be first proved guilty or culpable before there could vicarious liability on the part of the 1st and 2nd Respondents.

What is more the Appellant pleaded that:
“… the then 1st Defendant’s Senior Admin Manager/Head of Project, Mr. J. N. Nwaoguegbe had directed the 1st Defendant’s Internal Security Personnel to forcefully open his official quarters and removed all the Claimant’s Properties”.
thereby making it clear the persons who invaded his house in his absence yet Appellant led no direct evidence of the alleged occurrence and also failed to call persons who saw the servants or officers of the Respondents carting away Appellant’s properties. This is a big gash or lacuna in Appellant’s Case. I am of the view that the averments contained in paragraphs 17, 18, 19, 64 and 65 (6) (7) & (8) of the Appellant’s Amended

Statement of Claim border on commission of Crime by the Servants of the 1st and 2nd Respondents who are not parties to this Suit. Thus the Appellant was under a due to prove the allegation beyond reasonable doubt.

commission of crime in civil cases as alleged herein is the same as in criminal cases. See: Famoroti v. Agbeka (1991) 5 NWLR (Pt. 189) 1 at 13 where this Court held that where the Plaintiff alleged that the thumb impression on Exhibit “A”, the basis of the case was forged, same must be proved beyond reasonable doubt. See also Jules v. Ajani (1980) 5 – 7 SC 96 at 116.
I have said it before but I wish to further reiterate it that fraud requires a higher degree of probability in its proof. It must be pleaded with particulars adequately supplied. See: George v. Dominion Flour Mills Ltd. (1963) All NLR 70 at 77; Aina v. Jinadu (1992) 4 NWLR (Pt. 233) 91 at 106. A party alleging fraud must discharge the onus of proof to the satisfaction of the Court. See: Omoregie v. Aiwerioghene (1994) 1 NWLR (Pt. 321) 488 at 499.
The 1st Respondent who alleged fraud herein flew it in the air. Same was not attended by particulars. There was no shred of evidence adduced in support of same. As the allegation of fraud made by the 1st Respondent failed to take off, it did not hit the target.”
2. AIYEDOUN T. JULES VS. RAIMI AJANI (1980) N.S.C.C.

222 at 229 – 230 per NNAMANI, JSC of blessed memory who said:
“Learned Counsel for the Appellant had in his argument before us asserted that the issue of forgery did not arise in this Suit. I think it did and the Federal Court of Appeal was right in so finding. The Appellant clearly raised the issue of forgery in paragraph 3(a) and (b) of his pleadings as set out above. The learned trial Judge did not advert his mind fully to the implications of that pleading hence he sought to explain it as laying emphasis on Akinwale Ajao’s denial of execution of Exhibit “A”. The point is that the Appellant having raised the issue of Exhibit “A” being a forgery the burden was on him to prove that assertion. The standard of proof is proof beyond reasonable doubt. Section 137(1) and (2) of the Evidence Act, Cap. 62. Provide as follows:-
“137(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provisions

of Section 140, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.”

The allegation of breaking in and entry into his official quarters which the Appellant peddled against the servants of 1st and 2nd Respondents are Criminal Offences under Sections 410 – 414 of the Criminal Code Law of Abia State for which a person could be sentenced for up to seven years imprisonment.

The Appellant’s pieces evidence do not establish his allegations against the 1st and 2nd Respondents. The evidence is even at variance with the pleadings. And more importantly there is no vicarious liability in Criminal Law or allegation of Crime. A master or principal cannot be made liable for Criminal act or activities of his servant or employee. See: APC VS. PDP & ORS. (2015) 4 SCM 48 at 99H per FABIYI JSC who said:
“It is basic there is no vicarious liability in the realm of Criminal Law. Anyone who contravenes the Law should carry his own cross.”
At page 127 of the said report, OGUBIYI JSC also said in paragraphs A- B thus:
“Their joinder by the Petitioner

will appear to have stemmed from a misapplication of the principle of vicarious liability which is applicable only in civil matters as opposed to where allegations of commission of Crimes have been made against agents of a disclosed principal. See: Adeoye v. Olorunoje (1996) 2 S. A. C. 256 at 262 where it was held that:
“It is not the Law that a master is responsible for the Crime of his servant.”

I am not unmindful of the submission of the Appellant’s learned Counsel that the Appellant Claims are in tort of detinue. Detinue or Claim in detinue is an action or Suit in which the Claimant seeks to recover his personal properly lawfully or wrongfully taken or withheld by another person. See: (1) FBN PLC. VS. OLUFEMI SONGONUGA (2005) LPELR – 7495 (CA) per CLARA BATA OGUNBIYI JCA now JSC who said on page 41 – 42 as follows:
The concept of detinue had been defined in Black’s Law Dictionary, 5th Edition at page 405 as:-
“A form of action which lies for the recovery, … of personal chattels from one who acquired possession of them lawfully, but retains without right, together with damages for the

detention.
Possessory action for recovery of personal chattels unjustly detained… The action of detinue is defined in the old books as a remedy founded upon the delivery is of goods by the owner to another to keep, who afterwards refused to redeliver them to the bailor, … It is necessary that the defendant should have come lawfully into the possession of the chattel either by delivery to him or by finding it.” (Italics is mine).
Detinue as expounded in Black’s Law Dictionary therefore, is a possessory action for recovery of property unjustly detained. It is an action, which lies for the recovery of property from one who acquired possession of it but retains the same wrongfully, illegally or without right, together with damages flowing from or for the detention. In the Supreme Court’s decision of Labode v. Otubu their Lordships held that detinue is:-
“a wrongful detention of plaintiff”s chattel by a defendant which is evidenced by the refusal of the defendant or his agent to deliver the chattel upon demand. The original taking may be lawful … the detention becomes wrongful if the defendant has no

reasonable justification for retaining the goods.”
(2) AMINU ISHOLA INVESTMENT LTD. VS. AFRIBANK (NIGERIA) PLC (2013) 9 NWLR (PART 1359) 380 at 403 E – F per ALAGOA JSC who said:
“What is the nature of an action in detinue? In Kosile v. Folarin (1989) 3 NWLR (Pt. 107) 1 at p. 10 para. C; (1989) 4 SC (Pt. 150) the Supreme Court per Nnaemeka Agu, JSC held as follows,
“… It must be clearly stated that in an action for detinue the gist of the action is the unlawful detention of the plaintiff’s chattel, which he has an immediate right to possess, after the plaintiff has demanded its return.”
(3) ENTERPRISE BANK LTD. VS. DEACONESS FLORENCE BOSE AROSO & ORS. (2014) 3 NWLR (PART 1394) 256 at 298 F – H per RHODES ? VIVOUR, JSC who said:
“I must explain the correct position of the law on detinue. The essence of detinue is that the defendant holds on to property belonging to the plaintiff and fails to deliver the property to the plaintiff when a demand is made. The goods must be in the custody of the defendant at the time the demand for them is made before an action in detinue

can succeed. The cause of action in detinue is the refusal of the defendant to return the goods to the plaintiff after the plaintiff must have made a demand for them. A claim for detinue would fail if at the time the plaintiff made a demand the goods were not in the defendants’ actual possession. In such a case the plaintiff might have a cause of action in conversion but definitely not detinue. The plaintiff can still sue in detinue and succeed if he is able to show by credible evidence that the defendant wrongfully or improperly parted with possession of the goods before the plaintiff made a demand for them.”

And further on what a Claimant must prove to succeed in detinue action the Case of ENTERPRISE BANK LTD. V. AROSO Supra pages 296 H to 297 A – C provides the answer thus:
“To succeed in a Claim of/for detinue the plaintiff (in this case the respondents) must plead and lead credible evidence to establish the fact that:
1. He is the owner of the property.
2. He has an immediate right to possession of the property.
3. The defendant (appellant) is in actual possession of the property.
4. That he (the

respondents) made a demand on the defendant to deliver/return his property to him.
5. That the defendant (appellant) continues to hold unto the property without lawful excuse and the defendant failed to deliver the property despite repeated demands.
It is settled that there is no controversy as regards 1, 2, 4 above. The issue is whether the Claim for detinue can succeed in the light of the fact that the goods were no longer in the custody of the appellant when the respondents made a demand for them on 14/8/97.”
Per RHODES – VIVOUR JSC”

There is no evidence that the goods were in the possession of 1st and 2nd Respondents.

The tendering of Letter Exhibit J dated 22nd day of June, 1993 from (Ministry of Agriculture to General Manager Abia Palm Nig. Ltd. UKWA is not a prove that the 1st and 2nd Respondents who took over the management of the FRI – EL ABIA PALM (NIGERIA) LTD., in 2008 came into possession of the alleged properties of Appellant. As a matter of fact the letter was written some fifteen years before the 1st and 2nd Respondent came on board. There is no evidence that, they were aware of any breaking in

or entry by the servants or employee of former ABIA PALM (NIG) LIMITED. The Letter relied upon Exhibit ?J? talked about Mr. Ananaba?s Personal effect and specifically paragraph 3 of the letter said:
?It is the view of this office that the matter of breaking into Mr. Ananaba?s accommodation and taking it over by force should have been avoided. Peaceful means should have been pursued to success. However since your decision to reassign the accommodation has been approved by this office you should now take necessary. Steps to give back to Mr. Ananaba his personal effects said to have been removed from the house. A List is attached herewith showing Mr. Ananaba?s Claim of his property in the house breaken into officially.? Sic.

?While the Appellant was testifying on page 154 of the record, he told the Court he did not have the Letter he wrote to which Reply Exhibit ?J? was given. In the said Letter a List of what the Appellant claimed he lost was attached but there is nothing on record to show that he tendered the said List along with Exhibit ?J?. Surely this cannot be said to have

established claim in detinue against the 1st and 2nd Respondents or their servants pleaded in paragraph 18, 19, 20, 63, 64 and 65 of the Amended Statement of Claim. As stated earlier the Lower Court can not speculate or conjecture what was not before it. I agree with the trial Judge that the claimant has not adduced sufficient evidence oral or documentary to show who actually carried away his properties.

I am also not oblivious of the submission of Appellant that because 1st and 2nd Respondents did not file pleadings to deny his allegation it should be taken that the 1st and 2nd Respondents admitted all his Claims. That submission cannot fly and does not hold sway. The reliefs sought are in form of declaratory reliefs laced with allegation of Commission of Crime against persons who are not parties to the Suit. And Appellant admitted under Cross Examination that the 1st and 2nd Respondents were not around or in the picture when the incident of breaking in and entry of Appellant’s residence as alleged took place.

Evaluation and ascription of probative value to evidence is the duty of the trial Court. This Court can only interfere or disturb the

findings of the trial Judge if found to be perverse and amounts miscarriage of Justice against the Appellant. The findings of the trial Judge are not perverse and there is no miscarriage of Justice discernible from the record. See: DR. SOGA OGUNDALU vs. CHIEF A. E. O. MACJOB (2015) 3 SCM 112 at 124 B – D per RHODES – VIVOUR J.S.C. who said:
“It is the duty of the trial Judge to receive all relevant evidence. That is perception. The next duty is to weigh the evidence in the con of the surrounding circumstances of the case. That is evaluation. A finding of fact involves both perception and evaluation. Evaluation of relevant evidence before the trial Court and the ascription of probative value to such evidence are the primary functions of the trial Court. This is so since that Court saw, heard and watched the demeanour of the witnesses when they gave evidence. Consequently where this is done the Appeal Court should always be reluctant to differ from the trial Judge’s finding. It is only where the trial Court failed to evaluate such evidence properly that an Appellate Court can re-evaluate evidence.”

Issue 1 is hereby

resolved against the Appellant.
ISSUE NO. 2
WHETHER THE learned trial Judge exercised his discretion judicially and judiciously by refusing to award costs in this Suit to the Claimant taking into cognizance of the circumstances of this Case and its meritorious nature. (Ground B).

The bone of contention here is that the trial Court failed to judicially and judiciously exercised its discretion in refusing to award costs in favour of Appellant.

The Appellant conceded that appellate Court would not ordinarily interfere with the exercise of discretion to award costs by a Lower Court. That the Law is trite that costs follow event. That Appellant was subjected to ordeals leading to the case for 13 years and placed on indefinite suspension without pay since 27/3/1997. He relied on Order 27 Rule 7 of the High Court (Civil Procedure) Rule 2009 of Abia State.

The 3rd Respondent submitted the contrary and contended that the trial Judge was in order in his refusal to award costs.

Now a Court has absolute discretion to award or refuse to award costs in favour of a party that wins. The discretion must however be seen to have been exercised

judicially and judiciously. This Appellate Court has the vires or competence to review the exercise of discretion of the learned trial Judge refusing to award costs where reasonable cause is shown by Appellant that he deserves to be awarded costs having won his Case at the Lower Court even partially. However it must be noted that costs is at the discretion of the Court. The Appellant has not shown any miscarriage of justice he suffered for failure to award costs.
See also N.N.P.C. VS. KLIFCO (NIG) LTD. (2011) 10 NWLR (PART 1255) 209 AT 235 B-C where RHODES-VIVOUR, JSC again held:
“This Court will not interfere with the way a trial Court or the Court of Appeal exercises its discretion, but would be compelled to interfere if the discretion was wrongly exercised, or the exercise, was tainted with some illegality or it is in the interest of justice to do so see University of Lagos Vs. Aigore (1985) 1 NWLR (Pt. 1) p. 143”.

I am of the view that the learned trial Judge is perfectly in order in not awarding costs in favour of the Appellant. Issue 2 is resolved against the Appellant.

In the result the Appellant’s appeal is

unmeritorious. It is hereby dismissed. The Judgment of the High Court Abia State contained in the decision of HON. JUSTICE S. A. NWAKANMA refusing to grant to the Appellant reliefs No. 6, 7 and 8 in the Amended Statement of Claim as well as his refusal to award costs in favour of the Appellant are hereby affirmed.

There will be no Order as to costs.

ITA GEORGE?MBABA, J.C.A.: I had the privilege or reading the draft of the lead judgment, just delivered by my learned brother, PETER OLABISI IGE JCA. I agree with his reasoning and conclusions, that there is no merit in the appeal. I too dismiss it and abide by the consequential orders in the lead judgment.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother, PETER OLABISI IGE, JCA and I am in agreement with is reasoning and conclusions in dismissing this Appeal. I also abide by the consequential orders made by this Court.

Appearances

I. E. Nwaogazie, Esq.For Appellant

AND

E. Okezie, Esq. (Solicitor General Abia State) with him, Miss. O. A. Akinjide (State Counsel) for 3rd RespondentFor Respondent