ENTERPRISE BANK PLC v. DAN DOLLARS OIL (NIGERIA) LIMITED
(2015)LCN/8000(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 21st day of January, 2015
CA/OW/331/2013
RATIO
TORT: TORT OF DETINUE; THE DEFINITION OF THE TORT OF DETINUE
In the resolution of the sole Issue in this Appeal, it is pertinent, to remark that parties and indeed their respective Learned Counsel are ad idem that the Claimant/Respondent’s claim in the lower court was founded in the tort of detinue. Black’s Law Dictionary 7th Edition by Bryan A. Garner et al at page 460 defines the tort as:
“A common-Law action to recover personal property wrongfully taken by another.” Otherwise known as “Replevin in detinet” (an action for the repossession of property that is rightfully taken but wrongfully detained (as in this case) or “Trover”. The Learned Authors quoted with approval, the illustration given by R.F.V. Heuston’s Salmond on the Law of Torts 111 (17th Ed. 1977) of the subject thus:
“A claim in detinue lies at the suit of a person who has an immediate possession of the goods against a person who is in actual possession of them, and who, upon proper damand, fails or refuses to deliver them up without lawful excuse. Detinue at the present day has two main uses. In the first place, the Plaintiff may desire the specific restitution of his chattels and not damages for their conversion. He will then sue in detinue, not in trover. In the second place, the Plaintiff will have to sue in detinue if the Defendant sets up no claim of ownership and has not been guilty of trespass; for the original acquisition in “detinue sur bailment” was lawful.”
In Berger V. Omogui (2001) 15 NWLR (Pt. 736) 401; (2001) 9 S.C.M 21 and 22 R. 4, (2001) 6 NSCQR (pt. 11) 1062; which was cited by the Learned Counsel for the Respondent but which the Learned Counsel for the Appellant submitted does not in any manner relate to the case at hand, Ogwuegbu and Uwaifo, JJ.S.C., in their concurring judgments of the Supreme Court held in line with the above definition and illustration of Detinue at pages 1073 paras. E, G-H and 1080 para. G-E inter alia Per, E.O. Ogwuegbu, JSC:
“Detinue is a wrongful retention of possession of goods and the wrong arises upon the detention of the chattel after demand for its return by the person entitled to its immediate possession has been made. See General and Financial Facilities Ltd V. Cooks Cars (Romford) Ltd. (1963) 1 WLR 644.” As for Uwaifor, JSC: “In detinue, the cause of action does not accrue until there has been a demand for the return of the goods in question and definite refusal to deliver them up. Detinue is a continuing cause of action which accrues due to wrongful refusal to deliver up the goods and this continues until delivery up of the goods or judgment in the action for detinue. The action is in the nature of an action in rem in which the plaintiff may sue (1) for the value of the chattel as assessed and also for damages for its detention; or (2) for the return of the chattel or recovery of its value as assessed and also for damages for its detention; or (3) for the return of the chattel and damages for its detention; See Ordia V. Piedmont (Nig.) Ltd. (1995) 2 NWLR (pt. 379) 516 at 526 – 527; General and Finance Facilities Ltd v. Cooks Cars (Romford) Ltd. (1963) 1 WLR 314 at 318 – 319.” per. IGNATIUS IGWE AGUBE, J.C.A
PRACTICE AND PROCEDURE: DAMAGES; GENERAL AND SPECIAL DAMAGES DISTINGUISHED
In the recent case of British Airways V. Atoyebi (2014) 13 NWLR (Pt.1424) 253 at pages 286 paras. D-F, 287 paras. F-G, 289 paras. B-C and 303 paras. C-D; the Supreme Court had cause to restate the general principles of our law on damages and distinguished between general and special damages and the rationale for pleading particulars of special damages, per Kekere Ekun, JSC, as follows:
“It is the law that general damages such as the law presume to be the natural or probable consequences of the Defendant’s act need not be specifically pleaded. It arises by inference of law and need not therefore be proved by evidence and be averred generally. On the other hand, special damage is such loss as the law will not presume to be the consequence of the Defendant’s act but which depends in part, on the special circumstances of the case. Special damages must be specifically pleaded and strictly proved. See Incar Motors (Nig.) Ltd. V. Benson Transport Ltd. (1975) 3 S.C. (Reprint) 81; F.B.N. PLC V. Associated Motors Co. (Nig.) Ltd. (1988) 10 NWLR (Pt.570) 441 at 465-466 paras. G-C.”
See, Kopek Const. Ltd. V. Ekisola (2010) 83 LRCN 159 at 200; rightly cited by the Learned Counsel for the Respondent to aptly submit in my view, that the Respondent needed not prove its entitlement to the damages since the order of return of the title documents was made in favour of the Respondent and from decided authorities of the Supreme Court earlier cited particularly the dictum of Kekere-Ekun, JSC; the order of restitution is inextricably tied to damages since the Court found that the Appellant was liable in damages as it flows naturally as a consequence of the Appellant’s wrong against the Respondent. per. IGNATIUS IGWE AGUBE, J.C.A
TORT; TORT OF DETINUE; WHETHER A SUCCESSFUL PARTY IN AN ACTION FOR DETINUE IS ENTITLED TO AN ORDER OF SPECIFIC RESTITUTION OF THE CHATTEL
The Supreme Court had earlier held in the cases of NEKA Manufacturing Co. Ltd. V. ACB Ltd. (2004) 2 NWLR (Pt. 858) 521, Kosile V. Folarin 3 NWLR (Pt. 107) 1 and even Oluwa Glass Co. V. Ehinlawo (1990) 7 NWLR (Pt. 160) 14 C.A; that in an action for detinue, a successful Plaintiff is entitled to an order of specific restitution of the chattel, or in default, its value and also damages for its detention. per. IGNATIUS IGWE AGUBE, J.C.A
Before Their Lordships
IGNATIUS IGWE AGUBEJustice of The Court of Appeal of Nigeria
ITA GEORGE MBABAJustice of The Court of Appeal of Nigeria
FREDERICK O. OHOJustice of The Court of Appeal of Nigeria
Between
ENTERPRISE BANK PLCAppellant(s)
AND
DAN DOLLARS OIL (NIGERIA) LIMITEDRespondent(s)
IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): The Appellant as Claimant in the High Court of Abia State, in the Aba Judicial Division, Holden at Aba took out a Writ of Summons and in its particulars and that of the Statement of Claim dated and filed together on the 23rd day of May, 2011, sought for the following Reliefs in paragraph 30 thereof:
“WHEREFORE the Claimant Claims against the Defendant as follows:
A. A Declaration of this Honourable Court that the continued detention by the Defendant of the Claimant’s Deed of Assignment registered as No. 15, PAGE 15, VOLUME 114 of the Land Deeds Registry, Uyo Akwa Ibom State and Customary Right of Occupancy NO. ITR/039/81 of the former Cross River State, now Akwa Ibom State both relating to the Claimants Filling Station at Uyo now Akwa Ibom State even when the loan for which the said documents were handed over to the Defendant for search was not given to Claimant is totally unlawfully, barbaric, unwarranted and illegal.
B. An Order commanding the Defendant to release and immediately deliver up to the Claimant, her Deed of Assignment registered as No. 15, PAGE 15 VOLUME 114 of the Land Deeds Registry, Uyo, Akwa Ibom State, and Customary Right of Occupancy NO.ITR/039/81 of the former Cross River State, now Akwa Ibom State which are still being wrongfully and intentionally detained by the Defendant and which the Defendant has refused to release to the Claimant despite several demands on her for their re-delivery.
C. The Sum of N10,000,000 (Ten Million Naira) being general damages against the Defendant for detinue and wrongful detention of the Claimants Deed of Assignment registered as No. 15, PAGE 15, VOLUME 114 of the Land Deeds Registry, Uyo, Akwa Ibom State, and Customary Right of Occupancy NO. ITR/039/81 of the former Cross River State, now Akwa Ibom State.
D. 10% interest on the judgment sum from the date of judgment until the judgment debt is fully liquidated.”
Issues were joined by the Defendant filing her Statement of Defence dated 21st day of June, 2011 denying the Claimant’s Claim. At the hearing, the Claimant/Respondent called a Sole Witness (Mr. Dickson Okoroji) who testified and tendered 6 (six) documents marked Exhibits “A-F”. He was not cross-examined by the Learned Counsel for the Defendant/Appellant who elected not to do so.
The Defendant/Appellant on her part also called a sole witness (Mr. Kingsley Uche Njoku) who was said to have simply adopted and repeated wholly the averments contained in the Defendant’s Statement of Defence as well as the Rejoinder of the Defendant to the Claimant’s Reply to the Statement of Defence. The Rejoinder was said not to have raised any new issues except the challenge to the claimant to produce a Letter of Demand for the documents apart from the one written by the Claimant’s Lawyer which challenge the claimant was said to have met by tendering the letter in that behalf written by the M/D of the Claimant dated 3/12/2004 before the institution of the action.
The DW1 also tendered the documents pleaded but Counsel to the Claimant objected to the tendering of the Judgment in Suit No.LD/2069/2005 on the ground that it was not certified but the objection was overruled and the judgment was accordingly marked Exhibit J. I must however confess that having gone through the entire Record of Proceedings, I cannot find where the witnesses testified. However, from what is recorded at page 170 of the Records, the Defendant tendered 13(thirteen) documents in support of her case.
At the close of the respective case of the parties, Written Addresses were exchanged and adopted which culminated in the Judgment of the Learned Trial Judge (Hon. Justice Onuoha A.K. Ogwe delivered on Tuesday, May the 7th, 2013; granting Reliefs A, B and C but refusing to grant D.
Dissatisfied with that Judgment, Bertraim Faotu Esq., of Eluethera Chambers, 64 Hospital Road, Aba, on behalf of the Appellants gave Notice of Appeal with Two Grounds dated 20th day of June, 2013 but filed on the 21st day of June, 2013. For record purposes, the Two Grounds of Appeal are hereunder set down with their particulars as follows:
“GROUNDS UPON WHICH THE APPEAL IS BROUGHT TO THE COURT OF APPEAL
GROUND ONE:
The Learned Trial Judge erred in law when he awarded the sum of N5,000,000.00 (Five Million Naira) as damages against the Appellants.
Particulars
(i) The respondents failed to lead any iota of evidence to establish special damage and/or the actual cost of the actual damage(s) they suffered, if any..
(ii) It is trite that damages, if any, in such a case is usually nominal.
(iii) The sum of N5,000,000.00 (Five Million Naira) awarded in this case cannot be said to be nominal.
“GROUND TWO:
The Judgment is against the weight of evidence.”
Briefs of argument were subsequently exchanged by the respective Learned Counsel for the parties in line with the Rules of this Honourable Court following the transmission of the Record of Appeal and entry of the Appeal hereto. In the Brief of Argument settled by the aforementioned Learned Counsel for the Appellant (Bertraim Foatu Esq) which Brief is dated the 6th day of September, 2013; a Sole Issue for determination was distilled from the Two Grounds of Appeal raised by the Appellant. The Issue is couched thus: “ISSUE FOR DETERMINATION”
Whether the Learned Trial Judge was right when he awarded the sum of N5,000,000.00 (Five Million Naira) as general damages against the Appellants?
Okey Onuigbo Esq, of the Law Firm of Chief Chris Uche (SAN) & Co., The People’s Chambers, 17 Howell Crescent Aba; who settled the Respondent’s Brief dated 16th day of October, 2013, but filed on the 22nd day of October, 2013 upon receipt of the Appellant’s Brief of Argument apart of the aforesaid Respondent’s Brief of Argument gave Notice of Preliminary Objection pursuant to Order 10 Rule 1, of the Court of Appeal Rules, 2011 dated 16th October, 2013 and also filed on the 22nd October, 2012.
Before delving into the arguments on the Preliminary Objection and the Briefs of Argument, it is appropriate at this juncture to have a resume’ of the facts of the case as contested by the parties.
The Respondent as Claimant in the lower Court contended that some time in 2004, the Respondent wanted an over draft facility of N30,000,000.00 (Thirty Million Naira) from the Appellant (the Bank) for which the Bank requested the title documents of the Appellant’s Filling Station at Uyo, Akwa Ibom State as security for the overdraft if granted.
The Respondent through her Managing Director then duly handed over the original Deed of Assignment registered as No.15/15/114 of the Land Registry, Uyo and a Customary Right of Occupancy No.ITR/039/81, both in respect of the said Filling Station to the Appellant/Bank for her to conduct a search at the Lands Registry on the Property.
In the view of the Respondent (then Claimant), the terms and conditions for the grant of the said overdraft facility were quite unfriendly and draconian and upon a careful perusal of same, the Respondent outrightly refused the conditions and took no further steps towards facilitating the overdraft. The entire transaction thus failed and as a result of this the overdraft facility was not given to the Respondent.
Pursuant to the foregoing development and the failure of the transaction, the Respondent then demanded from the Appellant for the return of her above mentioned documents hitherto intended to be security for the overdraft facility but the Appellant refused and neglected to return them. The Respondent then initiated the proceedings against the Appellant in the Court below and in response according to the Respondent the Appellant admitted being in possession of the documents but claimed that she (the Appellant) had granted the overdraft of N30,000,000.00 (Thirty Million Naira) to the Respondent which the Respondent had not liquidated.
Apart from the above claim, the Appellant further alleged that she was exercising her right of lien over the said documents in respect of an earlier loan of N150,000.000.00 (One Hundred and Fifty Million Naira) advanced to Dan Dollars Motors Ltd. (a sister company to the Respondent) which the Respondent, according to the Appellant, had not liquidated.
The case of the Appellant (then Defendant) on the other hand, is not different from the facts as stated by the Respondent that sometime in 2004, the Appellant sought an overdraft facility of N30,000,000.00 (Thirty Million Naira) from the Appellant for which the Appellant requested for the title Deeds/Documents of Claimant’s Filling Station at Uyo, Akwa Ibom State, as security for the overdraft. The Claimant handed over the original Deed of Assignment Registered as 15/15/114 of the Lands Registry, Uyo, and a Customary Right of Occupancy No.ITR/039/81 in respect of the said Filling Station to the Appellant. The Claimant/Respondent alleged that terms and conditions for the grant of the said overdraft facility were not acceptable where upon the Claimant refused the conditions and took no further step towards facilitating the overdraft. The Claimant therefore demanded that the Appellant returned the documents intended for the Security of the overdraft facility but the Appellant did not return them on the premise of holding unto them as a lien.
Pursuant to the suit filed by the Claimant/Respondent the Defendant/Appellant filed her Statement of Defence and claimed that the facility of N30,000,000.00 was granted to claimant which the claimant had not liquidated. The Defendant/Appellant also alleged that she was exercising a lien over the documents in respect of a loan of N150,000,000.00 given to Dan Dollars Motors Ltd; a Sister Company of the Claimant/Respondent and which it also alleged had not been liquidated.
Furthermore, the Defendant/Appellant pleaded and relied on a judgment of the Lagos State High Court given in her favour for the sum of N67,891,018:04k against the said sister Company of the Claimant with the same Managing Director to substantiate the claim to the lien. Finally, the Defendant/Claimant also raised the issue that the Suit at the lower Court was statute barred.
ARGUMENT AND DETERMINATION OF THE NOTICE OF PRELIMINARY OBJECTION.
It would be recalled as stated earlier, that the Respondent gave Notice to the effect that at the hearing of the Appeal she would rely on the Preliminary Objection and sought for:
“An order striking out the Appeal herein as this Honourable Court lacks the jurisdiction to entertain same. And for such further orders as the Honourable Court may deem expedient to make in the circumstances.
AND TAKE NOTICE that the ground of the objection is as follows:
1. The grounds of Appeal contained in the Notice of Appeal are not grounds of law. GROUND 1(ONE) is a ground of mixed law and facts, Ground 2 is a ground of fact and since leave of Court below or of this Honourable Court was not first sought and obtained before filing same, the said Notice of Appeal is incompetent as it is unconstitutional.”
Argument on the Preliminary Objection was articulated and incorporated at page 5 paragraph 2 to page 8 of the Respondent’s Brief of Argument. In his argument, the Learned Counsel for the Respondent/Objector first submitted that the mere reference to a Ground of Appeal as a Ground of Law does not ipso facto automatically make it so. Citing the case of Nwadike V. Ibekwe (1987) 4 NWLR (pt. 67) 718 at 729 S.C; in support of the above submission he further relied on Metal Construction W/A Ltd V. Miligore (1990) 1 NWLR (pt. 126) 299 at Ratio 4; to argue that a Ground of Appeal which questions the exercise of discretion by a Trial Court is undoubtedly not a Ground of Law but rather a Ground of mixed law and fact.
From the above decisions cited, the Learned Counsel contended that the sole Ground of Appeal argued by the Appellant in this Appeal is one that questions the propriety of the award of N5,000,000.00 as general damages against the Appellant (pages 191-192 of the Record of Appeal refer) and accordingly the said Ground is a Ground of mixed law and fact.
It was therefore his view that by virtue of Section 241(1)(b) of the 1999 Constitution and the decision in Atanyi & Ors V. Military Governor, Plateau State & Anor (2007) FWLR (Pt. 89) 1168 page 1185, the Appellant ought to have sought the leave of the trial Court or this Honourable Court to file and rely on Ground 1 (ONE) of the Grounds of Appeal because where an Appellate Court is called upon to investigate some facts upon which some claims are granted under a Ground of Appeal, such a Ground is definitely that of mixed law and facts.
Also where an Appeal is interlocutory or is on mixed law and facts, the Appellant has to seek for and obtain leave of the Trial or Appellate Court before he can file a valid or competent Notice of Appeal, which the Appellant neither sought for nor obtained such leave before filing Ground 1 of this Appeal; the Learned Counsel maintained while relying on the decision of Olusunde & Ors V. Chief Eyialegan & Ors (2005) ALL FWLR (Pt.424) 503 at 511-512.
The Learned Counsel again drew our attention to Ground 1 (ONE) of the Appellant’s Notice of Appeal (that is also the sole ground argued by the Appellant’s Counsel in his Brief of Argument) which according to him will show that the Ground would require this Honourable court to look at facts surrounding the award of N5,000,000.00 as damages by the trial Court and thus, in his view, undoubtedly makes the Ground that of mixed Law and facts.
On the criteria for the classification of Grounds of Appeal he referred us to supreme Court case of First Bank of Nigeria V. S.A. Industries (Ltd.) (2010) ALL FWLR (Pt.537) 633 at pages 667-668 paras. E-H & A; to emphasize that Ground 1 of the Grounds of Appeal is of mixed law and facts in that this Court will be called upon to determine whether the trial Court exercised its discretion arbitrarily in awarding the amount of general damages, which is discretionary.
On the argument by the Appellant in her Brief that the sum of Five Million Naira (N5,000,000.00) is too high to be nominal damages, he also referred us to the Supreme Court case of Akwiwu Motors Ltd & Anor V. Sogonuga (1985) 5 S.C. 184.
In respect of Ground 2 of the Notice of Appeal he argued that apart from not having contained any particulars, it is a ground of fact which requires leave before it can be filed (Page 192 of the Records refers) because it complains that the Judgment is against the weight of evidence. His authority in so submitting is Nwadike V. Ibekwe (Supra) at 744. On the meaning of a Judgment being against the weight of evidence he placed reliance on the case of ERIVO V. OBI (1993) 9 NWLR (Pt.315) 60 at 63-64.
Finally, the Learned Counsel contended that the incompetence of the Notice of Appeal has robbed this Honourable Court of the jurisdiction to entertain the Appeal on its merits. The authority in so submitting is First Bank Nigeria Ltd. V. Maiwada (2012) 213 LRCN Pt.121 at 173 ZJJ & 174 a (S.C.) upon which he also anchored his objection and urged us to uphold the Preliminary Objection and strike out the Notice of Appeal for being incompetent.
LEARNED COUNSEL TO THE APPELLANT’S REPLY TO THE NOTICE OF PRELIMINARY OBJECTION AND ON POINTS OF LAW:
Reacting to the arguments of the learned Counsel to the Respondent on the Preliminary Objection and the Arguments on the substantive Issue for determination, the Learned Counsel for the Appellant in his Reply Brief dated 19th day of November, 2013 and filed on the 3rd day of March, 2014 submitted in paragraphs 1 to 1.02 at page 1 to 1.03 at page 2 thereof that the argument of the Learned Counsel for the Respondent was a great deal of wasted effort. He sought solace in Section 241(1) of the Constitution of the Federal Republic of Nigeria 1999 and pointed out that this Appeal is against the final decision of a High Court sitting at first instance in accordance with Section 241(1)(a) of the Constitution of the Federal Republic of Nigeria 1999; and that an Appellant can appeal as of right against a final decision of a Court of first instance whether or not the Appeal is of law, fact or mixed law and fact.
In such a situation the Learned Counsel insisted, it becomes immaterial or irrelevant that a Ground of Appeal is of law, facts or mixed law and facts. For this submission, we were referred to Iwueke V. I.B.C. (2005) 17 NWLR (pt. 955) 447 at 470 and 476 and urged to hold that the Respondent’s Preliminary Objection is misconceived and should be dismissed for lacking any basis in law or in fact.
DETERMINATION OF THE PRELIMINARY OBJECTION
In the determination of the Preliminary Objection raised by the Learned Counsel for the Appellant, it is only apt to have resort to the provisions of Section 241 of the Constitution of the Federal Republic of Nigeria, 1999 which counsel on both sides have anchored their disparate positions as to the competence vel non of the Notice and Grounds of Appeal filed by the Appellant.
For the avoidance of doubt, Section 241(1) of the 1999 Constitution of the Federal Republic of Nigeria stipulates in mandatory terms that:
“241-(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following case –
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.”
Section 242(1) thereof provides on the other hand that:
“Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from the decisions of the Federal High Court or a High Court or the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.”
The provisions of Section 241(1)(a) and (b) of the Constitution of the Federal Republic of Nigeria as above reproduced have been the subject of judicial pronouncements by this court and the Supreme Court in a plethora of decisions. For instance, the Supreme Court in the celebrated cases of Nafiu Rabiu V. The State (1981) 2 NCLR 293, Aqua Ltd. V. Ondo State Sports Council (1988) 4 NWLR 622 and Amorc V. Awoniyi (1994) 7-8 SCNJ 39 at 45; variously held while interpreting Section 220(1)(a) and (b) of the 1979 Constitution FRN which provisions are replicated in Section 241(1)(a) and (b) above reproduced, with slight modifications, had posited that the right of appeal conferred on an Appellant is all encompassing in the sense that such an appeal is as of right without any strictures, interference or the need for leave whether the Appeal is on law and facts or mixed law and facts provided such an appeal is against the final judgment of the Federal High Court, High Court of a State or even the High Court of the Federal Capital Territory sitting as a Court of first instance in civil or criminal matters. Also by the provisions of Section 241(b) where the Ground of Appeal involves questions of law alone, the appeal is also as of right in decisions of the Federal High Court or the High Court of a State no matter whether the courts aforementioned sit as Court of first instance or the decisions are interlocutory or final. On what constitutes a decision Section 318(1) of the Constitution defines it to mean “in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation”. See Nafiu Rabiu V. The State (1981) 2 NCLR 293, Dike V. Adubah (2000) SCNJ 41 at 48. As for the distinction between final and interlocutory decisions, the Supreme Court of Yore adopted the test as laid down in the English case of Bozson V. Altricham U.D.C. (1903) 1KB 547 at 548; where it was held that the order must have finally determined or disposed of the rights of the parties such that the matter would not be further brought back to that Court in order for such decision to be final otherwise the decision is interlocutory. See Ebokham V. Ekweribe & Sons (1999) 7 SCNJ 77, Oguntimehin & Anor V. Tokunbo (1957) 2 F.S.C. 56 at 57, Deduwa V. Okorodudu (1976) 1 NWLR 236.
As for Section 241(1)(b), it has been also interpreted to imbue a right of appeal (as of right) and not by leave of Court to litigants or parties on questions of law alone in both interlocutory decisions as well as decisions given whether in civil or criminal matters by the High court whether or not it sits at first instance or on appeals coming from Courts of lower hierarchies. Accordingly, appeals will therefore lie as of right from decisions of the High Court sitting on appeal from the lower Court, like Magistrate’s Court but such an appeal must be purely on questions of law alone.
writers and judicial decisions have argued and it is now trite that by the omission of the phrase “sitting at first instance” and “final” in the Section 241(1)(b) of the Constitution, it is conclusive that an appeal lies as of right from any High court decision whether of first instance or on appeal provided the appeal is on a question of law alone without any admixture of fact. See, CIVIL PROCEDURE IN NIGERIA SECOND EDITION by Fidelis Nwadialo, SAN at pages 788-797; Nafiu Rabiu V. The State (1981) 2 NCLR 293 at 306; per Idigbe, JSC, of blessed memory.
The provisions of the Constitution now in question also fell for interpretation before our Learned brothers when similar issues as have been raised in the Respondent’s Preliminary Objection on the competence of the Appellants Grounds/Notice of Appeal in Hon. Minister Federal Capital Territory & Anor V. MONONIA Hotel Nig. Ltd. & Anor. (2010) 20; and Per Garba, JCA., reading the lead judgment of the Abuja Division of this court posited rightly in my view thus:
“Speaking generally, the right of a party to appeal against the decision of a High court; State, Federal of FCT to this court under the 1999 Constitution of FRN has been classified into two categories, i.e. an appeal as of right provided under Section 241(1)(a) and (b) and an appeal with leave of Court provided for under Section 242(1) of the Constitution. Under Section 241(1)(a) an appeal is as of right from final decision of a High Court sitting at first instance and under Section 241(1)(b) where the ground of appeal involves questions of law alone, the appeal is as of right whether the decision was final or interlocutory.
The appeal in these and other situations set out in Section 241(1)(c)-(f) is of right and so no leave of Court was required or necessary for bringing or filing it. See Nwabueze V. Nwora (2005) ALL FWLR (Pt. 273), 297, Adetona v. Edet (2001) 3 NWLR (Pt. 699) 186. Section 242(1) provides for other situations in which right of appeal is subjected to leave of court before it could properly be exercised. For our purpose here, an appeal against the interlocutory decision of a High Court involving mixed law and facts or facts alone to this Court would require the prior leave of either the High Court concerned or this Court for it to be competent. Leave of Court in such a situation is a condition precedent to the validity of an appeal in this court. Aqua Ltd. V. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622; (1988) 10-11 S.C.N.J. 26; NALSA Team Associates V. NNPC (1991) 8 NWLR (Pt. 212) 652; Opuyo V. Omniwari (2007) 16 NWLR (Pt.1060) 415.” Our Learned brother, Mbaba, JCA (then of the Kaduna Division of this Honourable Court) also spoke in the same vein when confronted with a similar Preliminary Objection as raised herein, in the case of Usman V. NNB Plc. & ors (2013) LPELR 20404 C.A; and he reasoned that the main point in that case being rather whether a Ground of Appeal whether of mixed law or of facts or not required the leave of the High Court or the Court of Appeal to appeal against the decision of the High court sitting as a court of first instance and upon a final decision, by Section 241(1)(a) the Appeal being against the decision of the Kaduna State High Court sitting at first instance, was as of right and none of the Grounds required the leave of the court to be raised. See also Ekemezie V. Ifeanacho (2009) LPELR 8916 (CA) per Sanusi, JCA; Harriman V. Harriman (1987) 3 NWLR (Pt. 60) 244; Ekwulugo V. ACB Nig. Ltd. (2006) 6 NWLR (pt. 975) 30, and Ogbelu V. Oraelosi cited in Ekemezie V. Ifeanacho (supra) and FBN v. Abraham (2008) 36 NSCQ 1058 at 1887 per Tabai, JSC.
From the interpretation given by their Lordships in the cases cited on the interpretation of Section 241(1)(a) and (b) of the Constitution of the FRN, 1999, the learned Counsel for the Appellant rightly submitted while relying on the case of Iwueke V. I.B.C. (2005) 17 NWLR (Pt.955) 447 at 470 and 476; that all the submissions of the Learned counsel for the Respondent on the Preliminary Objection constitute a waste of effort and indeed an exercise in futility.
All the authorities he cited on the nature of Grounds of Appeal were cited over the bar as he misapprehended and confused the provisions of Section 241(1)(a) and (b) of the Constitution with Section 233 of the Constitution which provides for appeals from the Court of Appeal to the Supreme court.
Even then, if the Learned Counsel had looked at the relevant authorities he would have discovered that it is only in interlocutory Appeals that an Appellant would need leave of court where the grounds are of facts and mixed law and facts. In the instant case, the Judgment of the Honourable Justice A.K. Ogwe of Aba Judicial Division delivered on the 7th of May, 2013, had determined the rights finally and nothing was left to be settled. Again the court sat as Court of first instance in line with the provisions of Section 241(1)(a) of the Constitution. With the greatest respect to the Learned counsel for the Respondent, Section 242(1) of the 1999 Constitution does not apply to the Grounds of Appeal which is as of right irrespective of whether the Grounds are of facts or mixed law and facts.
On the whole, while the arguments proffered and authorities cited may have been anchored on sound legal principles, they are not relevant to this Appeal. The Preliminary Objection is therefore grossly misconceived and accordingly dismissed.
ARGUMENT ON THE SOLE ISSUE WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE AWARDED THE SUM OF N5,000,000.00 (FIVE MILLION NAIRA) AS GENERAL DAMAGES AGAINST THE APPELLANTS?
Arguing the sole Issue, the Learned Counsel for the Appellant observed in the first place that the suit of the claimant/Respondent was founded in the tort of detinue (Relief C on page 1 of the Record of Appeal refers) and that it is trite that the principle/object of damages in tort is to put the plaintiff in the position he would have been if the tort had not been committed. He however against the foregoing principle of law argued that there is no iota of pleaded fact as to the amount lost or that the Respondent would have been entitled to receive had the Deed of Assignment not been held by the Defendant/Appellant. He stated that the Appellant pleaded and led evidence that they held on to the documents as lien (paragraph 23 to 26 of the Statement of Defence at page 39 to 41 of the Records refer).
The Learned Counsel also noted that during trial, they raised the issue of the suit being statute-barred whereas the Learned counsel for the Respondent argued on the contrary that the cause of action accrued from 19th of April, 2011, the day he wrote the letter of denial to the Appellant (page 169 of the Record of Appeal on the letter which was tendered as Exhibit F and the copy thereof at page 34 of the Records refer); and the Learned Trial Judge also held that the cause of action accrued “from 20/4/2011 since the Defendant received the letter on 19/4/2011.”
The Learned counsel for the Appellant also pointed out the suit was filed on 23/5/2011 a period of only one month after the cause of action arose as contended by the Claimant/Respondent and ruled by the Court below adding that if this is case then it is difficult to see how damages of a whopping sum of N5,000,000.00 (Five Million Naira) would arise after a delay of only one month in giving the document to the Claimant/Respondent. Placing reliance on Igheriniovo V. S.C.C. (Nig.) Ltd. (2013) 10 NWLR (Pt. 136) 138 at 153 to 154; on the object of award of damages, he submitted that it is not meant to be a gift to the plaintiff or to punish the Defendant and that the Claimant/Respondent has not shown any financial loss whatsoever that he suffered and accordingly not entitled to the huge sum of money.
It was further submitted that the applicable principle is that the Plaintiff is only entitled to such sum as will put him in the position he would have been if the act constituting the tort never accrued and on the application of this principle, the Claimant/Respondent would not have been entitled to the amount awarded to him. For this submission he placed reliance on the dictum of Karibi-Whyte, JSC, in Agbanelo Vs. Union Bank of Nigeria PLC (2000) 4 SCNJ 353 AT 381.
Based on the above contention, he urged us to set aside the award of the sum of N5,000,000 as general damages there being no evidence in support of same. Kerewi V. Odegbeson (1965) ANLR 98 at 101 and Joseph V. Abubakar (2002) 5 NWLR (pt. 759) 185 at 207 paras. D-E, (CA) were further cited to buttress his prayer.
On another wicket, the Learned Counsel for the Appellant contended that at the trial the Claimant/Respondent who founded his claim on detinue did not claim special or specific damages and that the principle guiding the award of general damages is that damages will flow from the wrong allegedly suffered by the Complainant and intended to assuage the natural loss suffered by Claimant and caused by the Defendant. Moreover, it is considered as what a reasonable man would see as adequate loss or inconvenience flowing naturally from the act(s) of the Defendant. First Bank of Nigeria Plc. V. Olaleye (2013) 1 NWLR (Pt. 1334) 102 at 117 C.A.; was further relied upon in reemphasizing that we should set aside the award of N5,000,000.00 because the Claimant/Respondent never pleaded or showed in any form that he lost any amount whatsoever and that the award by the Court below was excessive.
Finally, it was asserted by the Learned counsel for the Appellant on the authority of UBN V. Emole (2001) 18 NWLR (Pt. 745) 501 at 517-518, that the Respondent having failed to prove the particulars/specific details of any damage allegedly suffered, the Learned Trial Judge was therefore in error in awarding him the claim for damages and we ought to have dismissed the claim.
Alternatively, he concluded that general damages where it is awarded for such claim is usually only nominal and the sum of N5,000,00.00 (Five Million Naira) awarded is not nominal. Accordingly, we were urged to resolve the Issue in favour of the Appellants.
ARGUMENT OF LEARNED COUNSEL FOR THE RESPONDENT
It is pertinent to note that the Learned Counsel for the Respondent formulated two Issues from the Two Grounds of Appeal whereas the Learned Counsel for the Appellant deemed it necessary to distill only an Issue from Ground 1 (ONE). Apart from Issue Two formulated by the Learned Counsel not arising from any of the Grounds of Appeal, it does not arise from the ratio of the decision of the Court below. Besides, the Respondent not having filed a Cross-Appeal or a Respondent’s Notice to contend, Learned Counsel on her behalf cannot formulate Issues outside the Grounds of Appeal raised by the Appellant.
The authority of Epe Local Government V. Keshinro & Ors (2009) 4 NWLR (Pt. 1131) 405 at 420-421 is on point in that the Appellant did not distill any Issue from Ground 2 and accordingly Ground 2 of the Grounds of Appeal is deemed abandoned. In Alims Nig. Ltd. v. UBA (2013) MRSCJ (Vol. 18) 61 the Supreme Court at page 68 paras. G-H relying on S.Udoechi V. J.L. Alinarat (2000) FWLR (Pt. 22) 2003 at 2010, Alhaji Abudu W. Akibu V. Alhaji Muriratu Odutan & Ors. (2000) 7 SCNJ 189 and Sparkling Breweries Ltd. & Anor. V. Union Bank of Nig. Ltd. (2001) 7 SCNJ 321; restated the position of the law that:
“It is basic that where no issue is formulated from a ground of Appeal; or no relevant issue is distilled from same, as in this matter, the ground is deemed abandoned under our law. Such a ground is liable to be struck out.”
Relying on the above authorities, Ground 2 of the Appellant’s Notice and Grounds of Appeal as well as Issue Number 2 which does not arise from any Ground as formulated by the Learned counsel for the Respondent together with the argument thereon are hereby struck out.
Turning to the argument of the Learned Counsel for the Respondent in reaction to the contentions of the Learned Counsel for the Appellant on the only Issue formulated, Okey Onuigbo Esq, submitted that there is no criteria for determination of quantum of damages for all torts and that there is also no uniform relief against all the forms of torts but for Detinue, he identified the following entitlements to the Claimant:
(a) For the value of the chattel as assessed and also damages for its detention; or
(b) For return of the chattel or recovery of its value as assessed and also damages for its detention; or
(c) For the return of the chattel and damages for its detention. Julius Berger V. Onogui (2001) 9 S.C.M. 21 at 22 Ratio 4; refers.
He argued that damages is tied to the order of return of the chattel and once the claimant succeeds in the action, damages necessarily follow as the Claimant need not prove the damage he suffered to be entitled to damages in detinue. The Learned Counsel for the Respondent then cited the case of KOPEK CONST. LTD. V. EKISOLA (2010) Vol. 83 LRCN 159 at 200 Ratio 8; on the purport of general damages as distinguished from special damages which must be specifically pleaded and strictly proved and contended that the Respondent at pages 1-2 of the Records only prayed for general damages which the Court below equally awarded her at page 190 of the Records. According to him, the Respondent needed not prove her entitlement to the damages, since the order of return of the title documents was made in her favour.
As for other torts like negligence, he asserted that the remedy is damages/compensation to the Claimant and the Claimant is entitled to such sum as will put him in the position he would have been if the act constituting the negligence never occurred. In the view of Learned Counsel for the Respondent, none of the authorities cited by the Learned Counsel for the Appellant borders on Detinue as Joseph V. Abubakar (2002) 5 NWLR (pt.759) 185 was a case of negligence while Agbanelo V. Union Bank Plc also cited by the Appellant’s Learned Counsel borders on defamation of which the principles of award of damages in these instances are not applicable in detinue cases as was the case of the Claimant in the Court below. We were therefore urged to distinguish those cases from the instant Appeal.
The Learned Counsel in response to the argument of the Learned Counsel to the Appellant that damages were not proved or the facts warranting the award of the huge sum to the Respondent by the Court; further submitted that the Respondent pleaded in the Statement of Claim that she made several demands to the Appellant for the return of the title documents in question following the failure of the transaction as can be gleaned from pages 4 para. 21 and 5 para. 28 of the Statement of Claim as well as page 6 of the Record of Appeal. He maintained also that there were equally document before the trial court supporting these assertions like the letter dated 3rd December, 2004 written to the Appellant (who was then Omega Bank) by the Respondent’s M/D demanding for the return of the title documents (page 110 of the Records refers) and the letter from the Learned Counsel for the Respondent dated 18th April, 2011 (Exhibit “F” at pages 34-35 of the Records) further demanding for a return of those documents.
He further alluded to paragraph 22 of the Statement of Claim where the Respondent pleaded that he was losing huge money on daily basis for loss of use of the said title documents for other transactions as a result of the Appellants continued detention of those title documents. (page 5 of the Records refers); but that the Appellant failed to cross-examine the C.W.1 on those material points and Appellant was deemed to have admitted that the Respondent would be entitled to the amount sought in damages if proved that the detention was unwarranted in the first place. For the above submission he placed reliance on Amadi V. Nwosu (1992) 5 NWLR (Pt.241) 273 on failure to cross-examine a witness as well as the cases of Gaji V. Paye (2003) 8 NWLR (pt. 823) at 583 and 591 Ratio 10; and NACENN Nig. Ltd V. BEWAC Auto. Pro. Ltd. (2011) 201 LRCN 28 at page 31 Ratio 1.
On the defence proffered by the Appellant to the Claim of the Respondent, the Learned Counsel for the Respondent again argued that the Appellant merely pleaded that she had the right and justification to continue detaining the documents simpliciter but did not join issues on the amount of damages sought by the Respondent rather the Appellant’s case was that the Respondent was not entitled to a return of the title documents and as such the issue of damages would not even arise.
On the contention by the Learned Counsel for the Appellant that Respondent did not strictly prove the damage suffered so as to warrant the award of such huge amount of N5,000,000.00, the Learned Counsel for the Respondent countered that it is only a claim for special damages that ought to be strictly proved and reiterated that the Respondent only claimed for general damages in the lower Court and as such no onus was placed on her in law to prove the amount claimed by her strictly (page 7 of the Records refers).
In conclusion we were urged to discountenance the Learned Counsel for the Appellant’s submissions on the point that the Respondent did not lead evidence to prove the amount claimed and subsequently awarded by the Court. Accordingly, we were also urged to hold that the Learned Trial Judge did not err in awarding the amount of N5,000,000.00 (Five Million Naira) as general damages to the Respondent and this Issue should be resolved against the Appellant.
We were further urged to dismiss the Appeal and affirm the Judgment of the Learned Trial Judge in its entirety for the reasons listed in paragraph 5 page 12 of the Respondent’s Brief.
LEARNED COUNSEL FOR THE APPELLANT’S REPLY ON POINTS OF LAW.
As said earlier the Learned Counsel filed a Reply Brief on behalf of the Appellant. Reacting to the submission of the Learned Counsel for the Respondent on the damages claimable by Plaintiff in detinue, the Learned Counsel for the Appellant noted firstly that the issue for determination in Julius Berger V. Omogui was not in any manner close to the issue before this Honourable Court as the only issue in the above cited matter was whether the claim of the Appellants was statute-barred and therefore that case cannot be authority for awarding the Respondent N5,000,000.00 damages after making an order of return of chattel.
The Learned Counsel for the Appellant further argued that as agreed by parties, the suit was founded on detinue which is a form of trespass to chattel a tort actionable per se without proof of actual damage) and it is settled that nominal damages is the kind of damages awarded for torts actionable per se. For this submission we were referred to the “The Nigerian Law of Torts by Kodilinye & Aluko at pages 258 and 259 where the Learned Authors also stated the circumstances under which nominal damages may also be awarded in submitting further that the sum of N5,000,000.00 cannot be said to be nominal damages”.
On the submission by the Respondent that they pleaded that they had lost huge amounts as a result of the detention of the title documents, he insisted that the Respondents gave no iota of evidence on the amount if any and so that the assessment by the Court is/was impossible. In such a case according to the Learned Counsel, the Respondent can only be entitled to nominal damages.
Still on the case of Julius Berger V. Omogui (supra), he further submitted that claim of the Plaintiff was in the Alternative and not for both the vehicle and damages as can be seen from the particulars of claim which he reproduced at page 3 paragraph 3.01 of the Reply Brief. Citing the case of Oluwa Glass V. Ehinlawo (1990) 7 NWLR (pt. 160) page 7; where it was held that a successful plaintiff is entitled to an order for specific restitution of the chattel or in default its value and damages to its detention he maintained that there is nowhere in the records where a Claimant was awarded an order for specific performance of the chattel and more than nominal damages and neither the Respondent nor the Learned Trial Court cited or relied on any of such authority for the award of the said sum of N5,000,00.00 and restitution. He re-cited the cases of Kerewi v. Odugbesan (1965) ANLR 98; Joseph V. Abubakar (2002) 5 NWLR (pt.759) 185 and Union Bank of Nig. Plc. V. Emole (2001) 18 NWLR 745, 501.
On the submission by the Learned Counsel for the Respondent that the Learned Counsel for the Appellant did not cross-examine the C.W.1 on the issue of damages, the Learned Counsel for the Appellant further restated that it is trite that damages are always in issue and that the Respondent failed to lead any iota of evidence to show how he arrived at N10,000,000.00 general damages or the amount he claimed to be losing daily. He maintained that the burden of proof is upon the party who pleads and where such a party fails to discharge the burden of proof, there is no necessity or any burden placed upon the Defendant to do anything else on the issue.
On the contention by the Learned Counsel for the Respondent that the cases cited by the Appellants on award of damages are in negligence and not on detinue, the Learned Counsel for the Appellant counted that the Learned Counsel for the Respondent did not show why the said authorities did not apply and also failed to stated the applicable principles governing award of damages in detinue. He however submitted that they (Appellants) have shown cases in detinue where the Court did not award such amount of damages and specific restitution.
We were therefore urged by virtue of foregoing premises to allow the Appeal and set aside the judgment of the Learned Trial Judge particularly on the award of damages.
RESOLUTION OF THE SOLE ISSUE
In the resolution of the sole Issue in this Appeal, it is pertinent, to remark that parties and indeed their respective Learned Counsel are ad idem that the Claimant/Respondent’s claim in the lower court was founded in the tort of detinue. Black’s Law Dictionary 7th Edition by Bryan A. Garner et al at page 460 defines the tort as:
“A common-Law action to recover personal property wrongfully taken by another.” Otherwise known as “Replevin in detinet” (an action for the repossession of property that is rightfully taken but wrongfully detained (as in this case) or “Trover”. The Learned Authors quoted with approval, the illustration given by R.F.V. Heuston’s Salmond on the Law of Torts 111 (17th Ed. 1977) of the subject thus:
“A claim in detinue lies at the suit of a person who has an immediate possession of the goods against a person who is in actual possession of them, and who, upon proper damand, fails or refuses to deliver them up without lawful excuse. Detinue at the present day has two main uses. In the first place, the Plaintiff may desire the specific restitution of his chattels and not damages for their conversion. He will then sue in detinue, not in trover. In the second place, the Plaintiff will have to sue in detinue if the Defendant sets up no claim of ownership and has not been guilty of trespass; for the original acquisition in “detinue sur bailment” was lawful.”
In Berger V. Omogui (2001) 15 NWLR (Pt. 736) 401; (2001) 9 S.C.M 21 and 22 R. 4, (2001) 6 NSCQR (pt. 11) 1062; which was cited by the Learned Counsel for the Respondent but which the Learned Counsel for the Appellant submitted does not in any manner relate to the case at hand, Ogwuegbu and Uwaifo, JJ.S.C., in their concurring judgments of the Supreme Court held in line with the above definition and illustration of Detinue at pages 1073 paras. E, G-H and 1080 para. G-E inter alia Per, E.O. Ogwuegbu, JSC:
“Detinue is a wrongful retention of possession of goods and the wrong arises upon the detention of the chattel after demand for its return by the person entitled to its immediate possession has been made. See General and Financial Facilities Ltd V. Cooks Cars (Romford) Ltd. (1963) 1 WLR 644.”
As for Uwaifor, JSC: “In detinue, the cause of action does not accrue until there has been a demand for the return of the goods in question and definite refusal to deliver them up. Detinue is a continuing cause of action which accrues due to wrongful refusal to deliver up the goods and this continues until delivery up of the goods or judgment in the action for detinue. The action is in the nature of an action in rem in which the plaintiff may sue (1) for the value of the chattel as assessed and also for damages for its detention; or (2) for the return of the chattel or recovery of its value as assessed and also for damages for its detention; or (3) for the return of the chattel and damages for its detention; See Ordia V. Piedmont (Nig.) Ltd. (1995) 2 NWLR (pt. 379) 516 at 526 – 527; General and Finance Facilities Ltd v. Cooks Cars (Romford) Ltd. (1963) 1 WLR 314 at 318 – 319.”
With the above illuminating dicta of the Eminent and erudite Jurists, the coast appears clear for the resolution of this issue since particularly from the well reasoned dictum of Uwaifo JSC, the authority is very relevant to this Appeal. Although in that case the only question for determination was whether the Appellant’s claim was statute barred by virtue of the provisions of Section 4 of the Limitation Law CAP. 89, Laws of Delta State; from a calm reading of the entire Judgment, it can be gleaned at page 1068 of (2001) 6 NSCQR that the substantive claim of the Appellant in the High Court was for:
“1. An order for the delivery up by the Defendant to the Plaintiff of the Plaintiff’s vehicle, a Styer Diesel Tanker Lorry with Registration Number LP 7875 or payment by the Defendant to the Plaintiff of the sum of N537,000.00 (Five Hundred and Thirty-Seven Thousand Naira) being the value thereof.
2. Interest on the amount found due to the Plaintiff from the Defendant at the rate of 30% per annum from 24/4/92 (the date of commencement of demand for return of the vehicle until the entire sum is fully liquidated, or interest as such rate and for such period as this Honourable court may deem fit.”
Upon being served, the Defendant joined Issues by filing his Statement of Defence and in paragraph 13 thereof raised a preliminary Objection that the Plaintiff/Respondent’s claim was statute barred. There is no doubt that the Plaintiff in the Berger V. Omogui case sought for delivery of the vehicle or in the alternative the value of the said vehicle. However, this does not detract from the settled position of the law as has been enunciated by writers and judicial authorities particularly the dictum of Uwaifo JSC; that a Plaintiff or Claimant as in this case can claim for both the restitution of the detained goods or chattels as well as damages for detention where the Claimant has demanded but the Defendant refuses to deliver up the property wrongfully detained.
There are authorities galore on this position of the law and for the avoidance of doubt, I shall rely on the cases of Zenon Gas Ltd. V. Idrisiya (Nig.) Limited (2006) ALL FWLR (Pt. 312) 2121; Follow Stitch V. Attorney-General of the Federation (1986) 5 NWLR (Pt. 46) 1007, and Odumosu v. A.C.B. Ltd (1976) 11 S.C. 55; where the Court of Appeal held that in a claim in detinue the court may order return of the chattel and damages for detention or may order as damages, payment of the value of the chattel as well as damages for loss of its use.
Again in C.D.C. (Nig.) Ltd. V. SCOA (Nig.) Ltd. (2007) ALL FWLR (Pt.363) 1 at 36-38, Onnoghen, JSC in distinguishing between the torts of detinue and conversion quoted in extenso the decision in General And Finance Facilities Ltd V. Cooks Cars (Romford) Ltd. (1963) 1 WLR 644 at 648, per Lord Diplock L.J. (as he then was) who in part reasoned that:
“On the otherhand, the action in detinue partakes of the nature of an action in rem which the Plaintiff seeks specific restitution of his chattel……………….
In the result an action in detinue today may result in a judgment in one of three different forms:
(1) For the value of the chattel as assessed and damages for its detention; or
(2) For return of the chattel or recovery of its value as assessed and damages for its detention; or
(3) For the return of the chattel and damages for its detention.”
Applying once more the dicta in the above decisions of the English Court and our apex Court, the learned Counsel for the Appellant cannot seriously contend as he has done on the authority of Oluwa Glass V. Ehinlawo (1990) 7 NWLR (Pt.160); that there is no record anywhere of a case of detinue where a claimant has been awarded an order for specific restitution and more than nominal damages.
The Learned Counsel for the Appellant has also relied on the cases of Ghreriniovo V. S.C.C. (Nig.) Ltd. (2013) 10 NWLR (Pt.1361) 138 at 153 to 154, Agbanelo V. Union Bank (Nig.) PLC (2000) 4 SCNJ 353 at 381, Kerewi V. Odegbesan (1965) ANLR 98 at 101-102 and Joseph V. Abubakar (2002) 5 NWLR (pt. 759) 185 at 207 paras. D-E; which no doubt had decided that the award of damages in tort is intended to compensate the Plaintiff for financial loss which he would have suffered and not intended to be a gift to the Plaintiff or punishment to the Defendant.
Although the Courts have held that the primary object of award of damages is to compensate the Plaintiff for the harm done to him or restore him to the position he would have been prior to whatever wrong he suffered (the maxim of the law being “restitution integrum”), sometimes a Defendant can be punished for the wrong committed. Besides, all the cases cited relate to the tort of negligence of which the measure of damages is to put the injured party back to its position prior to injury inflicted by the Defendant. Moreover, even though negligence is a tort like detinue, from what have been decided in the cases earlier cited in respect of detinue, a successful Claimant can be awarded double compensation i.e. the specific restitution of the chattel detained and compensation for the detention of the chattel.
The award of damages would however depend on the nature of damages (either specific or general damages) in the claim culminating in this Appeal as can be seen from the Statement of Claim and particulars, the Claimant/Respondent pleaded in paragraph 15 thereof that:
“Pursuant to this development and the failure of the transaction, the Claimant then made a demand from the Bank for a return of her above mentioned documents intended to be the security for the overdraft facility but the bank refused to return them.”
The letter of demand first written by the Managing Director/Chairman of the Respondent Chief D.O. Okenuo, dated 3rd December, 2004 was pleaded and annexed as one of the documents sought to be relied upon at the trial. That letter was addressed to the Branch Manager of the Aba Branch of the Appellant (then Omega) Bank Plc. When the Appellant did not return the documents on the ground that she had a lien on them, the Solicitors of the Respondent (Chief Chris Uche [S.A.N] & Co.) in a letter dated 18th April, 2011 wrote a final demand/Notice of Intention to sue the Appellant in detinue, to the Appellant. That letter was admitted and marked Exhibit “F”.
Eventually, the Respondent sought for the Reliefs already reproduced which are declaration that the detention of the documents by the Appellants was unlawful, barbaric unwarranted and illegal; an order for specific restitution of the title Deeds to the Respondent; N10,000,000.00 (Ten Million Naira) being general damages and 10% interest on the judgment sum from date of judgment until the judgment debt was fully liquidated.
Thus, it is clear from the Reliefs sought that the Respondent did not claim special damages. In the recent case of British Airways V. Atoyebi (2014) 13 NWLR (Pt.1424) 253 at pages 286 paras. D-F, 287 paras. F-G, 289 paras. B-C and 303 paras. C-D; the Supreme Court had cause to restate the general principles of our law on damages and distinguished between general and special damages and the rationale for pleading particulars of special damages, per Kekere Ekun, JSC, as follows:
“It is the law that general damages such as the law presume to be the natural or probable consequences of the Defendant’s act need not be specifically pleaded. It arises by inference of law and need not therefore be proved by evidence and be averred generally. On the other hand, special damage is such loss as the law will not presume to be the consequence of the Defendant’s act but which depends in part, on the special circumstances of the case. Special damages must be specifically pleaded and strictly proved. See Incar Motors (Nig.) Ltd. V. Benson Transport Ltd. (1975) 3 S.C. (Reprint) 81; F.B.N. PLC V. Associated Motors Co. (Nig.) Ltd. (1988) 10 NWLR (Pt.570) 441 at 465-466 paras. G-C.”
See, Kopek Const. Ltd. V. Ekisola (2010) 83 LRCN 159 at 200; rightly cited by the Learned Counsel for the Respondent to aptly submit in my view, that the Respondent needed not prove its entitlement to the damages since the order of return of the title documents was made in favour of the Respondent and from decided authorities of the Supreme Court earlier cited particularly the dictum of Kekere-Ekun, JSC; the order of restitution is inextricably tied to damages since the Court found that the Appellant was liable in damages as it flows naturally as a consequence of the Appellant’s wrong against the Respondent.
The Supreme Court had earlier held in the cases of NEKA Manufacturing Co. Ltd. V. ACB Ltd. (2004) 2 NWLR (Pt. 858) 521, Kosile V. Folarin 3 NWLR (Pt. 107) 1 and even Oluwa Glass Co. V. Ehinlawo (1990) 7 NWLR (Pt. 160) 14 C.A; that in an action for detinue, a successful Plaintiff is entitled to an order of specific restitution of the chattel, or in default, its value and also damages for its detention.
The Learned Counsel conceded at page 4 paragraph 4.12 of the Appellant’s Brief of Argument that the Claimant at the trial Court founded his claim on detinue and did not claim special or specific damages. He had rightly submitted on the general principle guiding award of general damages and as was held earlier on the cases cited that general damages would flow from the wrong allegedly suffered by the Complainant and is normally intended to assuage the natural loss suffered by the claimant and caused by the Defendant. There is also considerable force in the submission that the award of general damages is considered what a reasonable man would see as adequate loss or inconvenience flowing from the act(s) of the Defendant. First Bank of Nigeria V. Olaleye (2013) 1 NWLR (Pt. 1334) 102 at 117; was cited in submitting that the court gave an award of N5,000,000.00 (Five Million Naira) as general damages despite the fact that the Respondent did not plead or show in any form or manner that he lost that amount whatsoever.
He has also cited UBN V. Emole (2001) 18 NWLR (pt. 745) 501 at 517-518; to insist (inspite of his earlier concession that the Respondent did claim special damages) that the Respondent failed to prove the particulars/specific details of any damage allegedly suffered.
With the greatest respect, since the Respondent did not seek for special damages, the authorities have all settled the position of our law that it is only special damages that ought to be specifically pleaded and particularized and must also be strictly proved in order for a plaintiff to be entitled to it. The obligation to particularize a claim for special damages is said to arise not because of the unusual nature of the loss, but because a Plaintiff/Claimant who is in an advantageous position to predicate his claim on precise calculation must give the Defendant access to the facts which make such calculation possible. See F.B.N. V. Associated Motors Co. Ltd. (1998) 10 NWLR (570) 441 at 466 paras. A-B; British Airways V. Atoyebi (Supra) at 287 paras. A-B; N.N.P.C. V. Klifco (Nig.) Ltd. (2011) 10 NWLR (Pt. 1255) 209 at 238 paras. A-D, 243 paras. B-C; Incar (Nig.) Ltd. V. Benson Trans. Ltd. (1975) 3 S.C. 117; Odulaja V. Haddad (1973) 11 S.C. 357, Oshinjirin V. Elias (1970) 1 ALL NLR 153, Imana V. Robinson (1979) 3-4 S.C. 1 and Odinaka V. Moghalu (1992) 4 NWLR (Pt. 233) 1.
In the instant case, the Respondent only claimed for general damages as a result of the unlawful detention of her title documents by the Appellant as can be gleaned from paragraphs 22 and 23 of the Statement of Claim at page 5 of the Records that:
“22. The Claimant avers that she is currently losing huge sums of money on a daily basis from loss of use of the aforesaid Deed of Assignment and Customary Right of Occupancy for other transactions as a direct consequence of the Defendant’s continued illegal and unjustified detention of them”, and in paragraph 23 thus:
“23. The Claimant further avers that she has (over) the years that her documents have been unjustly detained by the (Defendant) had several other better offers for credit facilities of even above N30,000,000.00 from other banks but has been unable to utilize the offers as a result of the fact that the security documents it intends to use for the facilities are still being illegally detained by the Defendant.”
See, Paragraphs 24 and 25 of the witness statement on Oath of Mr. Dickson Okoroji who testified as CW1 and who was not cross-examined by the Learned Counsel for the Appellant who has submitted here on Appeal that the Respondent’s witness did not discharge the burden placed on him to adduce evidence and as such the Appellant had no burden to cross-examine the Respondent’s witness on the Claim of N10,000,000.00. On this point the Court below rightly held, in my humble view that:
“The Defence counsel did not put any question in cross-examination to the sole witness of the Claimant. The effect is that Defendant accepted all that CW1 said in evidence as he was not challenged on all material points. Discussing this issue in the case of Amadi V. Nwosu (1992) 5 NWLR (Pt. 241) P. 273, the Supreme Court held that such failure to cross-examine a witness is deemed as an acceptance of all that the witness has said especially on material point in the legal tussle.
Furthermore, in Gaji V. Paye (2008) 8 NWLR (Pt. 823) P. 853 at 591, the same Court held that “the effect of failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness. The Court therefore ought to rely and accept as true evidence that was neither challenged nor cross-examined by the other party. See Nacenn Nig. Ltd. V. BEWAC Auto Pro Ltd. (2011) 201 LRCN 28 at 31. In line with the above authorities, I rely and accept CW1’s evidence as unchallenged and therefore proof of the Claimant’s case.”
The same authorities of Amadi V. Nwosu (supra); Gaji V. Paye (supra) and NACENN Nig. Ltd. V. BEWAC auto. Pro. Ltd. (supra) are the authorities the Learned Counsel for the Respondent has again cited herein in submitting that the Appellant’s did not join issue on the question of damages but rather hinged their case on justification in clinging to the documents as they had a right of lien to them.
The Court below on all the authorities was right to have held that since the evidence of the sole witness for the Respondent was not challenged on all material points, the Respondent’s case had been accepted as the truth and judgment was accordingly entered in his favour. Notwithstanding the above position of the law, the pertinent question that we ought to answer at this juncture is whether taking into consideration the surrounding circumstances of this case, the award of N5,000,000.00 (Five Million Naira) general damages in favour of the Respondent was justifiable particularly when the Respondent did not state/plead or adduce evidence on the specific loss he incurred in the course of the detention of the document aforesaid. To answer this question, I shall call in aid judicial authorities which discussed in extenso and pronounced on the principle underlying the measure of damages in detinue cases.
The Supreme Court of Yore had cause to posit on this vexed point that has fallen for our determination in Messrs Wiedamann and Walters (Nig.) Ltd. V. Mojibola Oluwa & Ors. (1968) 1 ALL NLR 383 at 388; that in the con of detinue and damages for the use of detained goods it was their view that it is misleading to seek to apply the term “Special” or “General” damages for the consequential loss and that in Khawam V. Chanrai & Co. S.C. 52/65 (then unreported) but decided on the 28th of May, 1965, the apex Court had said that:
“Special” and “general” damages are misleading and are likely to create confusion in the assessment of damages especially when those terms are employed in connection with cases in which no such distinction is either necessary or desirable.”
In the instant case what the Respondent claimed was as usual for specific recovery of her personal chattel which was wrongfully detained from the person entitled to the possession of the chattel (Title Deeds) and indeed damages occasioned by the wrongful detainer. See United Dominions Corporation (Nig.) Ltd V. A.O. Ladipo (1971) 1 ALL NLR 102 at 110. The Respondent only pleaded for general damages and not special damages and assuming he was wrong, the damages claimed were in respect of the wrongful and unjustified detention of the documents.
Perhaps the case which is on all fours with this Appeal is the case of Chief J.K. Odunosu V. African continental Bank Ltd (1976) 11 S.C. 55 at pages 65; and I shall make bold to state the facts herein. The Plaintiff/Appellant in that case was a Customer of the Defendants/Respondents Bank who enjoyed just like our case herein, overdraft facilities up to ?20,000.00 in those days, on his own personal guarantee. The Appellant later deposited two of his land title documents to his property situate at Surulere District, Lagos and another Land Instrument to property situate at Bashua Village, and a fourth document which was a life policy with the Bank.
As a result of new business contacts, the Plaintiff required those documents to tender as security and he thus requested the Bank to release the vial documents. The Bank however, mistakenly thought that they had an equitable charge over those documents. The Plaintiff/Appellant instituted an action in detinue claiming the return of those documents and ?50,000.00 special and general damages for wrongful detention. The Learned Trial Judge gave Judgment in favour of the Plaintiff, ordered a return of the documents and awarded N8,000.00 general damages. The Plaintiff appealed on the quantum of the damages but the appeal was dismissed. In arriving at this decision their Lordships of the apex Court made very salient observations touching on the issue of damages in detinue which I shall copiously reproduce hereunder for record purposes and to assist us in determining the propriety vel non of the N5,000,000.00 general damages awarded the Respondent out of the N10,000,00.00 claimed by the Respondent inter alia:
“We pause to observe, once again, that this claim is in detinue, primarily the claim in this type of action is not for damages but for the return of the specific goods wrongfully detained (or their value as assessed) Damages however, if any is proved to have been sustained, will, in addition to an order for delivery of the chattels (or specific goods) be awarded. (See Anderson V. Passman, Gent. & Ors. (1835) 7 C. & P. 193; and 173 E.R. 86 and 86 Coleridge, J). The measure of damages for detention of goods (i.e. in detinue) is perculiar and the normal measure is usually-
(1) The market value of goods where delivery of the specific goods detained has not been ordered; and
(2) Even in the cases where an order for the return of the goods has been made, a sum of money representing the normal loss through the detention of goods and this (when applicable) quite often is the market rate at which the goods could have been hired.”
Their Lordships further reasoned that in the above cases, therefore, where the goods, the subject matter of the action for detinue; have not (as such) been profit-earning, it is extremely difficult to assess the damage to the Plaintiff (Somervell & Romer, LJJ in the Medianna (1900) A.C. 113 at 246, 252 and 257) refers.
They added thus:
“However, the Plaintiff is entitled to damage for loss arising from his inability to make use of the specific goods; and this can be recovered under either head of damage general or special. Dealing with the subject matter of damages in detinue, the Learned Authors of Halsburyl’s Laws of England (in Vol. 38 of 3rd Edition (1962) at p. 795, Article 1321 state:
“Apart from the question of general value of the goods the plaintiff may be able to show that he has suffered special damage by the detention or conversion. Such damage, if claimed, and it the reasonable foreseeable result of the defendant’s unlawful acts, is recoverable………………..”
Where, however, the Plaintiff particularizes items of special damage, then he must establish the same by evidence.”
Guided by the above decisions and the principles enunciated therein, it is clear that the Respondent did not state the head and quantum of damage suffered from the detention of the documents and any of such circumstance of transaction which he lost because of her inability to tender the detained documents in transactions that were frustrated as a result.
If she had particularized the loss then he would have specifically proved them. In the circumstance, the Learned Trial Judge would have determined the amount of money representing the normal loss the Respondent would have incurred through the detention. The Respondents have pleaded and testified that they had lost deals over and above the N30,000,000.00 (Thirty Million Naira) that warranted their deposit of the documents which were unlawfully and unjustifiably detained.
In the light of the foregoing therefore, the Court had to use its best of judgment/discretion as rightly argued by the Learned Counsel for the Appellant and considered what a reasonable man would see as adequate loss flowing from the act(s) of the Appellant.
I am therefore in tandem with the Learned Counsel for the Appellant that in the absence of special damages which was capable of mathematical exactitude, nominal damages but a reasonable sum which is capable of assuaging the Respondent for the detention of his title deeds ought to be awarded to her (the Respondent). Accordingly, N5 Million Naira was not excessive considering the fact that the document had been detained from 3rd December, 2004 till 7th of May, 2013 when judgment was eventually delivered.
I have taken into consideration the state of the law that award of damages is at the discretion of the trial Court and this Court in its appellate jurisdiction is and should be wary in its interference with the award of the damages of N5,000,000.00 as in this case unless the following circumstances exist:
(a) That the Trial Court acted under a mistake of law; or
(b) The Trial Court acted in disregard of some principle of law; or
(c) The Trial Court acted upon a misapprehension of facts;
(d) That the Court took into account irrelevant matters or failed to take into account relevant matters; or
(e) Where injustice would result if the Appellate Court does not interfere; or
(f) Where the amount awarded is either ridiculously low or ridiculously high that it must have been a wholly erroneous estimate of the damage. See, British Airways V. Atoyebi (2014) 13 NWLR (Pt. 1424) 287 para. H to 288 paras A-C; N.N.P.C. v. Klifco (Nig.) Ltd. [2011] 10 NWLR (pt. 1255) 234-235 paras. H-B. per Rhodes-Vivour, JSC; University of Lagos V. Aigoro (1985) 1 NWLR (Pt. 1) 13; S.P.D.Co. (Nig.) V. Tiebo VII & Ors. (1996) 4 NWLR (Pt.445) 657 at 680 paras. D-E; Acme Builders Ltd. V. Kaduna State Water Board (1999) 2 NWLR (Pt.590) 28; Mutual Aids Society V. Akerele (1965) 4 NSCC 268 at 272.
In the instant case the Appellant has not prayed for a reduction of the damages of N5,000,000.00 awarded the Respondent on any of the grounds above stated so that this Court in its Appellate Jurisdiction may exercise its powers to tone down the damages. He has rather asked for an outright setting aside of the damages awarded by the lower Court and allow the Appeal. Having earlier held that the Respondent was/is entitled to damages for the loss of use of his title Deeds to secure loans worth more than the N30,000,000.00 (Thirty Million Naira) for which the Deeds had been detained, I am minded not to interfere with the said award otherwise I would be acting out of jurisdiction (or to put it in the usual parlance of the Courts) turning the Court to a Father Christmas.
The respondent in line with the authorities cited, has claimed damages which is the reasonable foreseeable result of the unlawful, illegal and unjustifiable act of the Appellant and he is therefore entitled to the said N5,000,000.00 (Five Million Naira) which I feel is reasonable in the circumstance.
Accordingly, I resolve this Issue against the Appellant. On the whole this Appeal is unmeritorious and same is accordingly dismissed and I make no order as to Costs.
ITA GEORGE MBABA, J.C.A.: I have read the lead judgment by my learned brother, I.I. Agube JCA, and I agree with him completely and 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 read before now the judgment of my learned brother, I.I. Agube, JCA and which has just been delivered by him. I agree with the reasoning and conclusions arrived at therein. For the same reasons ably stated by him, I also would dismiss this Appeal and abide by the consequential orders made by my learned brother.
Appearances
For Appellant
AND
Okey Onuigbo, Esq.For Respondent
