ACCESS BANK v. ADEBIYI (2021)

ACCESS BANK v. ADEBIYI

(2021)LCN/15178(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Tuesday, March 30, 2021

CA/AK/14/2011

Before Our Lordships:

Rita Nosakhare Pemu Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

ACCESS BANK PLC APPELANT(S)

And

PRINCE ADEYINKA ADEBIYI (For Himself And On Behalf Of All Other Members Of Late Oba Akinola Adebiyi Family Of Ala) RESPONDENT(S)

RATIO

POSITION OF THE LAW REGARDING THE DAMAGE TO BE AWARDED IN A CLAIM FOR DETINUE

In the tort of detinue, if found tenable, the Plaintiff is entitled to an order of Restitution (here the document). It is return of the document or its equivalent value as at the time of the delivery of the judgment, and may be entitled to damages from the period of demand to the date of delivery. However, in actions for detinue, the damages are usually nominal. A claim in detinue is basically for the return of the specific chattel detained or its value. General damages for unlawful detention may, (if any is established) be awarded (for they are not to be presumed in this type of action) and even if they are generally nominal, unless the evidence establishes a case for substantial award under this head of damages it cannot be awarded – J. E. OSHEVIRE LTD. V. TRIPOLI MOTORS (1997) LPELR 1584 (SC); ORDIA V PIEDMONT (NIG) LTD. (1995) LPELR 2753 (SC). PER RITA NOSAKHARE PEMU, J.C.A.

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Osun State High Court delivered on the 2nd day of March, 2010, in Suit No. HOS/85/2008.

BRIEF FACTS
The Respondent (Plaintiff in the Court below) had filed a Writ of Summons and Statement of Claim in detinue, praying the Court below for an order for the return of his original certificate of occupancy dated the 26th of June, 1987, and for Ten million naira damages for unlawful detention of the said instrument.

The Appellant (Defendant in the Court below) filed an undated memorandum of appearance. Being out of time to file his Statement of Defence, he sought an order for extension of time to so do from the Court below. The Plaintiff (Respondent) had however filed a motion for judgment. The Court below extended the time for the Appellant to file his defence.

The Appellant (Defendant) failed to file his defence even after given time to do so.
The Respondent (Plaintiff in the Court below) moved his motion for judgment and the Court below granted it, thereby giving final judgment because the defendant had failed to file a defence.

The Appellant is dissatisfied with the judgment and has appealed it, and pursuant to the Practice Direction of this Honourable Court, he filed a Notice of Appeal, but amended, in a further amended Notice of Appeal, filed on the 27th of November, 2018, with five (5) Grounds of Appeal.

The Appellant filed an amended Brief of Argument on the 29th of November, 2019. It is settled by Solomon S. Wada Esq. The Amended Respondents brief of argument was filed on the 17th of January, 2020, but deemed filed on the 3rd of November, 2020. It is settled by G. A. Adesina Esq.

The Appellant distilled two issues for determination from the Grounds of Appeal viz:
1. WAS THE PROCEEDING OF THE LOWER COURT VALID IN LAW?
2. WHETHER THE LEARNED TRIAL JUDGE WAS CORRECT WHEN HE AWARDED THE RELIEFS CLAIMED BY PLAINTIFF/RESPONDENT.

On his part, the Respondent in his amended brief of argument filed on the 17th of March, 2020, deemed on the 3rd of November, 2020, distilled the following two (2) issues for determination viz:
1. WHETHER THE PROCEEDINGS OF THE LOWER COURT WAS VALID IN LAW.
2. WHETHER THE LEARNED TRIAL JUDGE WAS CORRECT WHEN HE AWARDED THE RELIEFS CLAIMED BY THE PLAINTIFF/RESPONDENT.

I am of the view that the Respondent’s issues for determination are an adoption of the issues for determination proffered by the Appellant.

ISSUE ONE
The Appellant submits that there are two issues that have affected the validity of the entire proceedings before the lower Court which are:
a. That the Writ was issued by “J. A. Ogundare and Co Solicitors” when there is no evidence it is a firm registered as such under the relevant law and when such a name is not a legal tradition pursuant to Legal Practitioners Act.
b. That the trial Court entered a final default judgment in a detinue case when its jurisdictional limitation on the motion praying for judgment in default of defence was/is for interlocutory judgment.

The Appellant contends that the names “J. A. Ogundare & Co. Solicitors” lack capacity in law. This is because, that firm has no capacity to issue a Writ as it did. The corporate name has not evidently been registered by the Corporate Affairs Commission citing BELLO OGUNDELE & ANOR. V. SHITTU AGIRI & ANOR (2009) 12 NJSC (PT. 1) P. 126 AT P. 153-154, PAGE G-F.

The Appellant submits that it is the provisions of Order 20 Rule 3 of the Osun State High Court Amended (Civil Procedure) Rules 2008 that governs the Plaintiff’s claim, being claims in detinue plus unliquidated damages and NOT the provisions of Order 20 Rule 9 of the Rules of Court as erroneously applied in the default judgment.

That this matter has to do with an interlocutory judgment pursuant to the provisions of Order 20 Rule 3 of the Rules of Court of Osun State, citingSENATOR ANIETE OKON V. BOLINGO HOTELS LIMITED & P.D.P. (2004) ALL FNLR (PT. 214) P. 90 AT P. 88.

Urges this Honourable Court to declare the Writ of Summons dated 12th of November, 2008, and the default judgment of the Court below delivered on the 2nd of March, 2010, null and void.

ISSUE TWO
Submits that issue two is in the alternative to issue one.
That the Plaintiff had sought a mandatory order for the return of the original certificate of occupancy which he alleged the Defendant/Appellant received from him for safe keeping. That he also claimed Ten million naira damages for the unlawful detention of the document.

He submits that no document was attached to the motion for default judgment showing that the Defendant/Appellant acknowledged receiving the document and or that he made a demand on the Defendant/Appellant to return any document.

Submits that the Court below erred when it granted a mandatory order against an artificial person, in the absence of any evidence that the Plaintiff actually gave the Certificate of Occupancy to the Defendant/Appellant, or that he demanded for any document from her.

He submits that as the damages claimed by the Plaintiff/Respondent falls on the realm of unliquidated pecuniary damages and not such previously fixed by the parties before litigation, it was incumbent on the Plaintiff/Respondent to proffer cogent and credible evidence to enable the trial Court make what would have been a reasonable assessment of the Appellant’s liability.

Submits that there was no basis for the amount of Ten million naira damages made by the trial Court. Urges Court to set aside the judgment of the trial Court.

RESOLUTION OF ISSUES
Although, the Appellant had in Paragraph 5.2.0 of his brief of argument submitted issue two in the alternative to issue one, I deem it pertinent to consider the two issues together.

A cursory look at the Record of Appeal, page 2, shows that the Writ of Summons was signed by a Legal Practitioner by the name J. A. Ogundare, Esq. Apart from the signature directly above the said names, it is indicated under the names, that he is Solicitor to the Plaintiff above. Address is J. A. Ogundare & Co., 190 Station Road, Osogbo. See SLB CONSORTIUM LTD. V. N.N.P.C. (2011) 9 NWLR (PT. 125) P. 317.
The Plaintiff’s Solicitor has complied with the Rules. The argument is misconceived and I so hold.

From records, the Respondent had instituted the suit the subject matter of this appeal vide Writ of Summons dated 17th of November, 2008. The Statement of Claim in the Suit HOS/85/2008 was dated same date, accompanied with the list of witnesses which the Plaintiff intends to call at the trial. Written Statement on Oath of the Plaintiff Oba Akinola Adebiyi and list of documents which the Plaintiff intends to tender at the trial was filed on the 3rd of December, 2008 – Pages 1-9 of the Record of Appeal. The Appellant filed memorandum of appearance on the 5th of May, 2009, though not dated – Pages 20-21 of the Record of Appeal.

From records, the Plaintiff/Respondent in this appeal, had filed a notice in a motion for an order giving the Plaintiff such judgment that he may be entitled to upon his statement of claim. In Paragraphs 14 & 15 of the affidavit in support of the motion filed on the 1st of July 2009. The Plaintiff deposed thus:
Paragraph 14: “That the time allowed the Defendant to file and serve the Statement of Defence has since expired.”
Paragraph 15: “That the defendant has no defence to this action.”
See pages 22-24 of the Record of Appeal.

From records, the Defendant (Appellant in this appeal) filed a motion on notice on the 29th of October 2009, seeking an order of Court granting him leave to file and serve the Defendant/Applicant’s Statement of Defence out of time.

On the 29th of October, 2009, the Defendant’s Counsel F. Ayanlokun Esq. moved his motion for extension of time to file the Defence, urging the Court to grant him seven (7) days to do so. The Court extended time till Thursday the 5th day of November, 2009.

The matter was adjourned to the 24th of November, 2009 for mention. On the 15th of February, 2010, when the matter came up for hearing, the Court observed that there was no legal representation for the Defendant. He also observed that there was no proof of service on the Defendant. The Plaintiff was represented. The Court then ordered fresh hearing notices on the defendant and adjourned the matter to the 2nd of March, 2010 for hearing.

On the 2nd of March, 2010, learned Counsel for the Plaintiff moved his motion for judgment, the Defendant having been duly served with process after the last date of adjournment. He was however absent from Court.

The claim of the Plaintiff at the Court below as adumbrated in his Statement of Claim are as follows:
“1. A mandatory order compelling the defendant to return without delay original certificate of occupancy dated the 20th June, 1987 and registered as No. 5 at page 5 in Volume 2773 of the Lands Registry in the offices at Ibadan now in Osogbo. The certificate of occupancy was deposited on 25-06-2004 for safe keeping with the Gateway Bank Plc. now merged with the defendant bank.
2. The sum of N10,000.000.00 (Ten million Naira

only) as damages for the unlawful detention of the title document from 2004 to date. The defendant refused and still refuses to return the said certificate of occupancy despite repeated demand.”

Paragraphs 5 & 9 of the Statement of Claim are instructive. I deem it pertinent to reproduce same verbatim:
“Paragraph 5: “When the Plaintiff wanted to use the document to secure loans to execute his business, he approached the Defendant branch at Plot 10R GCRA beside Post Office off Station Road, Osogbo for the return of his Certificate of Occupancy.”
Paragraph 9: “The Defendant has caused the Plaintiff much economic loss as he could not successfully raise funds for the execution of his contract by pledging the original certificate to raise loans for the execution of his contract.”

Curiously, in the face of these averments, the Defendant filed no defence. He is deemed to admit the facts in these paragraphs, indeed the entire Statement of Claim.
The Court below had based its judgment on the provisions of Order 20 (Rule not stated) of the High Court Amended (Civil Procedure) Rules (of which State not

provided):
“In all actions other than those in the preceding rules of this order, if the defendant makes default in filing a defence, the Plaintiff may apply to the Judge for judgment and such judgment shall be given upon the statement of claim the Judge shall consider the Plaintiff entitled to.”
Order 20 Rule 3 of the Osun State High Court (Civil Procedure) Rules 2008 has this to say:
“If the Plaintiff’s claim be for pecuniary damages, or for detention of goods with or without a claim for pecuniary damages only, and the defendant or all the defendants if more than one make default as mentioned in Rule 1 of this Order, the Plaintiff may apply to a Judge for interlocutory Judgment against the defendant or defendants and the values of the goods and the damages, or the damages only as the case may be shall be ascertained in any way which the Judge may order.”
Order 20 Rule 9 has this to say:
“In all actions other than those in the preceding Rules of this Order, if the defendant makes default in filing a defence, the Plaintiff may apply to the Judge for judgment and such judgment shall be given upon the Statement of Claim as the Judge shall consider the Plaintiff to be entitled to.”

The provisions of Order 20 Rule 1 is apt. I shall reproduce same verbatim:
“If the claim is only for debt or liquidated demand, and the defendant does not within the time allowed for the purpose file a defence, the Plaintiff may at the expiration of such time apply for final judgment for the amount desired with costs.”
A cursory look at the claim, shows that it pertains to an unliquitated pecuniary damages. It also has to do with detention of an instrument of title.
I shall also reproduce the provisions of Order 20 Rule 12. It has this to say:
“Any judgment by default, whether under this Order or under any Order of these Rules, shall be final and remain valid and may only be set aside upon application to the Judge on grounds of fraud, non service or lack of jurisdiction, upon such terms as the Court may deem fit.”
It seems to me that the provisions of Order 20 Rule 12 supports the observation of the Court below, and a fortiori makes all default judgments final, with regard to the Rule.

The Appellant has cited the case of DR. OLADIPO MAJA V. MR. COSTA SAMOURIS (2002) 15 WRN 69, to the intent that the trial Court failed to apply the provisions of Order 20 Rule 3.
The Appellant had in his Paragraph 4.7.0 of his brief stated that the provisions of Order 20 Rules 3 & 9 of Osun State High Court (Civil Procedure) Rules 2008 are in pari materia with Order 24 Rules 4& 11 of the High Court of Lagos State (Civil Procedure) Rules 1972 which is on all four with the present appeal.
Let me reproduce the provisions of the Lagos State High Court (Court Procedure Rules) Order 24 Rules 4. It says:
“If the Plaintiffs claim be for pecuniary damages only, or for detention of goods, with or without a claim for pecuniary damages, and the defendant or all the defendants (if more than one) make default as mentioned in Rule 2, the Plaintiff may enter interlocutory judgment against the defendant or defendants and the value of the goods and the damages or the damages only as the case may be shall on the application in chambers of any party be ascertained in any way which the Court or a Judge in Chambers may direct.” (Underlined by me).

It is apparent that the Appellant in this case did not appreciate this distinction between the provisions of Order 20 Rule 3 of the Osun State High Court (Civil Procedure) Rules 2008 and the provisions of Order 24 Rule 4 of the Lagos State High Court (Civil Procedure) Rules 1972. With the Lagos Rules, it is the duty of the party to make application to the Judge to determine damages, but in the Osun Rules, it is left for the Judge to order, which he did.
The submissions of the Appellant is therefore misconceived.
The Court below was right to have made the order which he did according to the relevant Rules and I so hold. This issue is resolved in favour of the Respondent.

However with regard to the issue of damages, the subject matter is the purported detention of a certificate of occupancy and an action in detinue.

However, in actions for detinue, the damages are usually nominal. A claim in detinue is basically for the return of the specific chattel detained or its value. General damages for unlawful detention may, (if any is established) be awarded (for they are not to be presumed in this type of action) and even if they are generally nominal, unless the evidence establishes a case for substantial award under this head of damages it cannot be awarded – J. E. OSHEVIRE LTD. V. TRIPOLI MOTORS (1997) LPELR 1584 (SC); ORDIA V PIEDMONT (NIG) LTD. (1995) LPELR 2753 (SC).

Where the Court has to quantify or assess the damages or loss, whether pecuniary or non pecuniary, the damages are UNLIQUIDATED.
So too, when the amount to be received depends on all the circumstances of the case, and on the conduct of the parties, and is fixed by opinion, or by an estimate or what may be judged reasonable; the damages are said to be UNLIQUIDATED. Such can only be known at the end of the trial because of the uncertainty in assessing, because of the subjective nature of the assessment of unliquidated damages. Two different Courts can hardly award the same amount in the same claim.

The Plaintiff (Respondent in this appeal) in its Paragraphs 5 and 9 in his Statement of Claim alleged his loss – facts unchallenged by the Defendant.

The Appellant (Defendant at the lower Court) had not established how he suffered miscarriage of justice by the procedure adopted by the Court in delivering default judgment under Order 20 Rule 9 of the Osun State High Court (Civil Procedure) Rules 2008. This issue is resolved in favour of the Respondent and against the Appellant.

Accordingly, the Appeal fails and same is hereby dismissed.
Having painstakingly perused the Plaintiff’s (Respondent) claim, the witness Statement on Oath, I hereby make the following order with regard and in substitution of his second prayer for damages viz:
The sum of N5,000,000.00 (Five million Naira) only is hereby awarded as damages for unlawful detention of the Certificate of Occupancy of the Respondent.
Parties to bear their own costs.

HAMMA AKAWU BARKA, J.C.A.: My lord graciously made available to me in draft the judgment just delivered before now.

I agree with the reasoning and conclusion, consequent upon which I also dismiss the Appeal and abide on all orders made including that as to costs.

JAMES GAMBO ABUNDAGA, J.C.A.: I have had the advantage of reading the draft of the judgment delivered by my learned brother, Rita Nosakhare Pemu, JCA.

The reasoning and conclusion reached therein is a deft consideration of the two issues on which the issues were argued by the parties and adopted by his Lordship.
I find nothing worthy of merit to add.

Therefore, I adopt his Lordship’s order that the appeal fails and is hereby dismissed.
I abide by his Lordship’s consequential order awarding to the Respondent damages in the sum of N5,000,000.00 (Five Million Naira) for unlawful detention of his certificate of occupancy.

Appearances:

B. Olaoye, Esq. For Appellant(s)

D. Ajibade, Esq., with him, F. A. Adeyemi, Esq. For Respondent(s)