DANGOTE CEMENT v. ANYAFU (2021)

DANGOTE CEMENT v. ANYAFU

(2021)LCN/14962(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, January 07, 2021

CA/A/505/2017

RATIO

TORT: TORT OF DETINUE

Detinue is the unlawful detention of good/chattel belonging to the Plaintiff even after the Plaintiff has made a demand for it.
The Black’s Law Dictionary defines detinue as a common law action to recover personal property wrongfully taken by another. (See 8th Edition, 2004).
Detinue received a judicial determination in the case of JULIUS BERGER (NIG) PLC. V. OMOGUI (2001) LPELR – 1638 (SC).

The facts of the case are similar to the one under consideration and are hereby recorded that the Respondent’s Fuel distribution tanker, of Styre make, used for the distribution of Kerosene was involved in an accident along Sapele/Warri Road Junction at Okirigue with a trailer belonging to the Appellant on the 5th of August, 1981. Soon after the accident, the Appellant undertook to repair the Respondent’s tanker and as a result towed the tanker to its workshop in Sapele. Later the Appellant changed its mind and instead of effecting the repairs itself, it asked the Respondent to remove the tanker to his workshop, repair it and submit the repair bill to the Appellant’s insurance company for settlement. The Respondent refused to do so and stood by the earlier agreement and undertaking by the Appellant to carry out the repairs. Realizing this stand, the Appellant again changed gear and asked the Respondent to furnish it with an estimate of the cost of repairs and the amount would be released to the Respondent. The Respondent promptly complied with this last request but all efforts to collect the money from the appellant to carry out the repairs by the Respondent failed. As a result of this unending tussle, the Respondent filed an action in 1981 in the Sapele High Court which went up to the Court of Appeal Benin and finally to the Supreme Court in 1992 where he (Respondent) succeeded and the Appellant was ordered to pay him the sum of N32,000.00.
The Appellant paid the said judgment debt but refused to release the Respondent’s tanker to enable him carry out the repairs despite repeated demands. The Respondent therefore filed this action in the Sapele, High Court, in which he claimed from the Appellant:-
1. An order for the delivery up by the Defendant to the Plaintiff of the Plaintiffs vehicle, a Styre Diesel Tanker Lorry with Registration No. 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 to be 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 at such rate and for such period as this Honourable Court may deem fit.
The Apex Court in dismissing the appeal held that;
“Detinue is a wrongful retention of the 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 & Financial Facilities Ltd. v. Cooks Cars (Romford) Ltd (1963) 1 NMLR 644.” Per OGWUEBGU, JSC.
Similarly, in the case of AMINU ISHOLA INVESTMENT LTD V. AFRI BANK NIG. PLC. (2013) LPELR – 20624 (SC), the Apex Court held thus;
“What is the nature of an action in detinue? In KOSILE V. FOLARIN (1989) NWLR (PART 107) 1; (1989) 4 SC Pt. 150, the Supreme Court Per Nnaemeka Agu, JSC held as follows:
“It must be clearly stated that in an action for detinue, the gist of the action is the unlawful diversion of the Plaintiffs chattel which he has an immediate right to possess after the Plaintiff has demanded its return.”
See also SHONEKAN V. SMITH (1964) 1 ALL NLR 168 at p.173; AKPENE V. BARCLAYS BANK NIG. LTD & ANOR (1977) 1 SC 47; KATE ENT. LTD V. DAEWOO NIG LTD (1985) 2 NWLR (PART 5) 116; ADEGBAIYE V. LOYINMI (1986) 5 NWLR (PART 43) 665. In CHIGBU V. TONIMAS NIG. LTD (2006) NWLR (PART 984) 189.” Per ALAGOA, JSC.
The tort of detinue arises where there is a wrongful detention or retention of the possession of Plaintiffs chattel by the Defendant, it is immaterial how possession of the chattel was acquired. What is requisite is an unlawful detention, a demand for its return and a refusal to return. See LABODE V. OTUBU & ANOR (2001) LPELR – 1731 (SC). PER DONGBAN-MENSEM, J.C.A.
DETINUE: INGREDIENTS OF ESTABLISHING A CLAIM FOR DETINUE

A claim for detinue will be successful where the following ingredients are established, that;
1. The Plaintiff has an immediate right to the possession of the goods or chattel.
2. The Defendant is in actual possession of the goods or chattel.
3. The Plaintiff has made a demand for these goods or chattel.
4. The Defendant has failed, refused or neglected to deliver up possession of the goods or chattel to the Plaintiff.
I am fortified in this by the decision of the Apex Court in the case of J.E. OSHEVIRE LTD V. TRIPOLI MOTORS (1997) LPELR – 1584 (SC) which held that;
“The gist of liability in detinue is the wrongful detention of the plaintiff’s chattel by the defendant after the plaintiff has made a demand for its return. Without proof of wrongful detention on the part of the defendant, a claim in detinue cannot arise. A detention is not wrongful unless the defendant’s possession is adverse. Accordingly, for an action in detinue to succeed, the defendant must have shown a definite intention to keep the chattel in defiance of the plaintiff’s rightful claim thereto and this is usually manifested by proving a demand by the plaintiff and a refusal by the defendant to return or deliver the chattel to the plaintiff… See Christopher Udechukwu v. Isaac Okwuka (1956) SCNLR 189; (1956) 1 F.S.C. 71.” Per IGUH, JSC. (Underlining mine).
The Apex Court amplified the ingredients required to prove detinue in CHIGBU V. TONIMAS NIG. LTD & ANOR (2006) LPELR – 846 (SC) where my Lord Niki Tobi (JSC) (OBM) declared that;
“Before an action on detinue can be filed, two acts must be present; one from the plaintiff and the other from the defendant.

The plaintiff must make a formal demand for the return of the goods or chattel. The defendant must refuse to return the goods or chattel. And so an action in detinue cannot be founded only on the demand by the plaintiff without a corresponding refusal.” PER DONGBAN-MENSEM, J.C.A.

EVIDENCE: PRIMARY FUNCTION OF THE TRIAL COURT

The trial Court is in the best position to evaluate evidence and ascribe probative value to evidence because it has the opportunity to hear and watch the demeanor of the witnesses. An Appellate Court would ordinarily not interfere with such findings unless the finding of the trial Court is perverse and has led to a miscarriage of justice. See FAGBENRO V. AROBADI & ORS (2006) LPELR – 1227 (SC), BAMGBOYE V. UNILORIN & ANOR (1999) LPELR – 737 (SC) and MAINAGGE V. GWAMMA (2004) LPELR – 1822 (SC). PER DONGBAN-MENSEM, J.C.A.

EVIDENCE: ON WHOM LIES THE ONUS OF PROOF WHEN THERE AN ALLEGATION

The law clearly stipulates that he who alleges must prove. It is elementary law that a party who makes an assertion must prove the truth of it, in order to succeed in the action. A paragraph in a pleading not proved is of no avail to the Party. See IFETA V. S.P.D.C. NIG. LTD. (2006) LPELR – 1436 (SC), ADAKE & ANOR. V. AKUN (2003) LPELR – 72 (SC) and OSUADE ADEYINKA AKINBADE & ANOR. V. AYOADE BABATUNDE & ORS (2017) LPELR – 43463 (SC). PER DONGBAN-MENSEM, J.C.A.

Before Our Lordships:

Monica Bolna’an Dongban-Mensem Justice of the Court of Appeal

Stephen Jonah Adah Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

DANGOTE CEMENT PLC APPELANT(S)

And

RAPHAEL ANYAFU RESPONDENT(S)

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): This is an appeal challenging the decision of the High Court of Justice, Kogi State, delivered on the 30th of December, 2017 Coram Yunusa Musa, (J). wherein the learned trial Judge granted all the reliefs sought by the Claimant now Respondent.

The brief facts leading to this appeal as contained in the Appellant’s Brief of Argument are that;
On 23rd May, 2012, the Claimant’s driver, one Sanni Muhammad, was caught red-handed for loading extra ten bags of cement apart from the 30 tons of cement covered by Authority to Transport Cement (ATC) No: 365692. Consequently, the truck driver was charged and convicted for the offence of criminal conspiracy, negligence and theft contrary to Sections 96, 196 and 287 of the Penal Code.
The Respondent gave contrary facts as follows;
On or about the 23rd May, 2012, the Claimant sent his driver to Dangote cement factory Obanjana, with an Authority to Transport Cement (ATC) Number 365692 to load 30 tons of cement for onward delivery to a distributor at Abuja. That the Driver in connivance with some staff of Dangote Cement Plc,

contrary to the Claimant’s instruction loaded the truck with an excess 10 bags of cement, they were caught and the truck together with the 30 tons of cement was seized by the Dangote security services at Lts factory at Obajana.
That the Claimant made repeated/several personal demands for the release of his truck coupled with a letter from his solicitor to the company, but the defendant company though acknowledged these demands still refused/neglected/failed to release to the Claimant his vehicle which he uses for business in order to sustain himself and his family nor did they release the 30 tons of cement he was authorized to transport. That it was the refusal and continuous detention of the Claimant’s vehicle and the 30 tons of cement that forms the basis and ground for his action against the Defendant at the trial Court.

The Parties shall simply be referred to as Appellant and Respondent in this Judgment.

Being dissatisfied with the decision of the trial Court, the Appellant filed a Notice of Appeal on 27/4/17. The Record of Appeal was transmitted to this Court on 18/7/17. The Appellant’s brief of argument dated 25/7/17, was filed on

26/7/17 and was deemed filed on 13/10/2020 while the Respondent’s brief of argument dated 15/1/19, filed on 16/1/19 was deemed filed on 13/10/2020. The Appellant did not file a Reply Brief.

Liman Saliu, Esq., of learned Counsel to the Appellant distilled three (3) issues for determination.
Funsho Agbanah, Esq., of the learned Counsel to the Respondent adopted the issues for determination as distilled by the Appellant.

This appeal shall be determined on the three (3) issues for determination raised by the Appellant. I shall commence with Issues 2 and 3, they shall be taken together because they are related.
ISSUES 2 AND 3:
Whether the Court below appreciates the applicable laws and principles on proof of tort of detinue coupled with the award of special damages on same.
AND
Whether the decision of the Court below is not perverse in view of its improper evaluation of evidence.

The learned Counsel to the Appellant submits that the Respondent failed to establish the required elements in a case of detinue. That in a bid to enter judgment for the Respondent at the expense of the Appellant, the trial Court is oblivious

to its finding that there is no evidence that the truck together with 30 tons of cement, the subject-matter of the suit at the Court below have been released to the Respondent or any other person at all and thus, the natural, factual and legal inference that follows is that the subject-matter of the suit are in possession of a person in the performance of public duty so the cause of action is yet to accrue.

Further submits that in rush to entitle the Respondent to its judgment, the trial Court goofed at the necessity of the Respondent establishing ownership of the truck allegedly owned by him, the subject-matter of the suit he initiated in contravention of the Supreme Court decision in ENTERPRISE BANK LTD V. DEACONESS FLORENCE BASE AROSO & ORS (2014) 3 NWLR (Pt. 1394) 256. That the trial Court failed in his duty as an impartial umpire by not deciding the case before him on correct principles of law, on proper appraisal and evaluation of evidence adduced by the parties before him. Furthermore, that the trial Court failed to take cognizance of the proper onus of proof on the Respondent and the requisite standard of proof because the trial Court

believed the case of the Respondent at the stage of highlighting the Respondent’s pleading and evidence before considering the defence of the Appellant. Cites ALAWIYE V. OGUNSANYA (2004) 4 NWLR (Pt. 864) 486, MOGAJI V. ODOFIN (1978) 4 SC.91, IFETA V. SPDC NIG. LTD. (2006) 8 NWLR (Pt. 983) 600 and EKIYOR V. BOMOR (1997) 9 NWLR (Pt. 519) 1.

Responding, the learned Counsel to the Respondent states that detinue is a genre of the tort of trespass to goods/chattel and it occurs where a party fails, refuses or neglects to return or give up possession of a chattel to the owner after the owner has demanded the return of the chattel irrespective of how the Defendant got possession of the goods/chattel. Relies on UNIPETROL NIG. PLC. V. BURAIMOH (2005) ALL FWLR (PT. 262) P.524 and BERGER V. OMOGUI (2001) ALL FWLR (PT. 64) 305. Further states that the Respondent established all the ingredients required to prove detinue against the Appellant. That the Appellant relied on the case of ENTERPRISE BANK LTD. V. BOSE AROSO & ORS. (2014) 3 NWLR (PT. 1394) 256 in stating that they were not in possession of the truck and 30 Tons of cement as same was tendered in Court as

evidence but failed to substantiate the claim as the Appellant never denied being in possession of the truck from Exhibit “A2”.

Learned Counsel to the Respondent submits that the silence of the Appellant raises a presumption of admission by conduct. That the Respondent led cogent, credible, unshaken and uncontroverted evidence which the trial Court placed on an imaginary scale and believed the evidence of the Respondent. Cites GUINNESS (NIG.) PLC. V. BOSE STORE LTD (2007) ALL FWLR (PT. 393) PG 163, ZENON PETROLEUM & GAS LTD. V. IDRIS IYYA NIGERIA LTD. (2006) ALL FWLR (PT. 312) P. 2121, HENSHAW V. EFFANGA (2009) ALL FWLR (PT. 466) P.1896 and DARE V. FAGBAMILA (2009) ALL FWLR (PT. 489) P. 568 and urged the Court not to disturb the award of damages by the trial Court as the award was in compliance with extant principles.

The grouse of the Respondent at the trial Court is the alleged unlawful detention of his truck and the 30 tons of cement contained therein by the Appellant.

Detinue is the unlawful detention of good/chattel belonging to the Plaintiff even after the Plaintiff has made a demand for it.
The Black’s Law Dictionary defines

detinue as a common law action to recover personal property wrongfully taken by another. (See 8th Edition, 2004).
Detinue received a judicial determination in the case of JULIUS BERGER (NIG) PLC. V. OMOGUI (2001) LPELR – 1638 (SC). The facts of the case are similar to the one under consideration and are hereby recorded that the Respondent’s Fuel distribution tanker, of Styre make, used for the distribution of Kerosene was involved in an accident along Sapele/Warri Road Junction at Okirigue with a trailer belonging to the Appellant on the 5th of August, 1981. Soon after the accident, the Appellant undertook to repair the Respondent’s tanker and as a result towed the tanker to its workshop in Sapele. Later the Appellant changed its mind and instead of effecting the repairs itself, it asked the Respondent to remove the tanker to his workshop, repair it and submit the repair bill to the Appellant’s insurance company for settlement. The Respondent refused to do so and stood by the earlier agreement and undertaking by the Appellant to carry out the repairs. Realizing this stand, the Appellant again changed gear and asked the Respondent to furnish it with an

estimate of the cost of repairs and the amount would be released to the Respondent. The Respondent promptly complied with this last request but all efforts to collect the money from the appellant to carry out the repairs by the Respondent failed. As a result of this unending tussle, the Respondent filed an action in 1981 in the Sapele High Court which went up to the Court of Appeal Benin and finally to the Supreme Court in 1992 where he (Respondent) succeeded and the Appellant was ordered to pay him the sum of N32,000.00.
The Appellant paid the said judgment debt but refused to release the Respondent’s tanker to enable him carry out the repairs despite repeated demands. The Respondent therefore filed this action in the Sapele, High Court, in which he claimed from the Appellant:-
1. An order for the delivery up by the Defendant to the Plaintiff of the Plaintiffs vehicle, a Styre Diesel Tanker Lorry with Registration No. 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 to be 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 at such rate and for such period as this Honourable Court may deem fit.
The Apex Court in dismissing the appeal held that;
“Detinue is a wrongful retention of the 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 & Financial Facilities Ltd. v. Cooks Cars (Romford) Ltd (1963) 1 NMLR 644.” Per OGWUEBGU, JSC.
Similarly, in the case of AMINU ISHOLA INVESTMENT LTD V. AFRI BANK NIG. PLC. (2013) LPELR – 20624 (SC), the Apex Court held thus;
“What is the nature of an action in detinue? In KOSILE V. FOLARIN (1989) NWLR (PART 107) 1; (1989) 4 SC Pt. 150, the Supreme Court Per Nnaemeka Agu, JSC held as follows:
“It must be clearly stated that in an action for detinue, the gist of the action is the unlawful diversion of the Plaintiffs chattel which he has an immediate right to possess after the Plaintiff has demanded its return.”
See also

SHONEKAN V. SMITH (1964) 1 ALL NLR 168 at p.173; AKPENE V. BARCLAYS BANK NIG. LTD & ANOR (1977) 1 SC 47; KATE ENT. LTD V. DAEWOO NIG LTD (1985) 2 NWLR (PART 5) 116; ADEGBAIYE V. LOYINMI (1986) 5 NWLR (PART 43) 665. In CHIGBU V. TONIMAS NIG. LTD (2006) NWLR (PART 984) 189.” Per ALAGOA, JSC.
The tort of detinue arises where there is a wrongful detention or retention of the possession of Plaintiffs chattel by the Defendant, it is immaterial how possession of the chattel was acquired. What is requisite is an unlawful detention, a demand for its return and a refusal to return. See LABODE V. OTUBU & ANOR (2001) LPELR – 1731 (SC).
A claim for detinue will be successful where the following ingredients are established, that;
1. The Plaintiff has an immediate right to the possession of the goods or chattel.
2. The Defendant is in actual possession of the goods or chattel.
3. The Plaintiff has made a demand for these goods or chattel.
4. The Defendant has failed, refused or neglected to deliver up possession of the goods or chattel to the Plaintiff.
I am fortified in this by the decision of the Apex Court in the case of

J.E. OSHEVIRE LTD V. TRIPOLI MOTORS (1997) LPELR – 1584 (SC) which held that;
“The gist of liability in detinue is the wrongful detention of the plaintiff’s chattel by the defendant after the plaintiff has made a demand for its return. Without proof of wrongful detention on the part of the defendant, a claim in detinue cannot arise. A detention is not wrongful unless the defendant’s possession is adverse. Accordingly, for an action in detinue to succeed, the defendant must have shown a definite intention to keep the chattel in defiance of the plaintiff’s rightful claim thereto and this is usually manifested by proving a demand by the plaintiff and a refusal by the defendant to return or deliver the chattel to the plaintiff… See Christopher Udechukwu v. Isaac Okwuka (1956) SCNLR 189; (1956) 1 F.S.C. 71.” Per IGUH, JSC. (Underlining mine).
The Apex Court amplified the ingredients required to prove detinue in CHIGBU V. TONIMAS NIG. LTD & ANOR (2006) LPELR – 846 (SC) where my Lord Niki Tobi (JSC) (OBM) declared that;
“Before an action on detinue can be filed, two acts must be present; one from the plaintiff and the other from the defendant.

The Appellant questions the evaluation of evidence as carried out by the trial Court. In so doing, the Appellant raises an issue which touches on the core of the judicial function of the trial Court.
The trial Court is in the best position to evaluate evidence and ascribe probative value to evidence because it has the opportunity to hear and watch the demeanor of the witnesses. An Appellate Court would ordinarily not interfere with such findings unless the finding of the trial Court is perverse and has led to a miscarriage of justice. See FAGBENRO V. AROBADI & ORS (2006) LPELR – 1227 (SC), BAMGBOYE V. UNILORIN & ANOR (1999) LPELR – 737 (SC) and MAINAGGE V. GWAMMA (2004) LPELR – 1822 (SC).

To establish the first ingredient of detinue, the Respondent pleaded in its Amended Statement on Oath that he is the owner of the truck with registration No. XC 156 LKJ. CW1 (Dele Shola) and CW2 (Gabriel

Kutus) both led evidence in Court that the Respondent is the owner of the truck. See pages 122, 127 and 141 of the Records. This evidence was not rebutted nor contradicted by the Appellant, there is no evidence tendered to show that the Respondent is not the owner of the truck.

Secondly, it is the Respondent’s claim that the truck was detained by the Security in the Appellant’s Company on the allegation of theft by the driver of the truck and some members of staff of Appellant. Again, this testimony remains unchallenged. The Appellant has not denied detaining the Respondent’s truck, rather the Appellant further buttressed the Respondent’s claim in “Exhibit A2” where the Appellant responded to the Respondent’s letter of demand that they are investigating the matter and will revert back to the Respondent. This is an acknowledgement on the part of the Appellant that they are in possession of the truck and the 30 tons of cement.

The Respondent established the third ingredient by virtue of “Exhibit A” which is a letter of demand to the Appellant for release of the truck and the 30 tons of cement. To this letter of demand, the Appellant responded with

“Exhibit A2” stating that they are investigating the matter.

It is not in dispute that the truck and 30 tons of cement have not been released to the Respondent and that is why the Respondent instituted this action against the Appellant. This establishes the last ingredient of detinue that is the refusal to deliver up possession of the chattel/goods. The Appellant in its response stated that they are investigating the matter, there was no mention that the Appellant was holding on to possession of the truck on the instruction of the Police or the Court. It is curious that the Appellant in its defence stated that it was not in actual possession of the truck as they were only keeping it in their custody on the instruction of the Court or the Police. The Appellant alleged in its Statement of Defence that it was keeping the truck on behalf of the Police but failed, neglected and refused to proffer evidence to support their claim. (See paragraphs 6, 12 and 14 of the Statement of Defence at page 45-46 of the Records). From the Respondent’s deposition on oath, the truck driver was convicted and sentenced on the 28th of May, 2012 but in the letter from the

Appellant dated 20th July, 2012, the Appellant claims that it is investigating the matter. (See page 92-94 of the Records). What then is the rationale behind the refusal to release the truck? What exactly is the Appellant investigating? Is it the Appellant’s responsibility to carry out investigations in a criminal matter? There is no letter or correspondence between the Police and the Appellant tendered in evidence to establish this claim. The law clearly stipulates that he who alleges must prove. It is elementary law that a party who makes an assertion must prove the truth of it, in order to succeed in the action. A paragraph in a pleading not proved is of no avail to the Party. See IFETA V. S.P.D.C. NIG. LTD. (2006) LPELR – 1436 (SC), ADAKE & ANOR. V. AKUN (2003) LPELR – 72 (SC) and OSUADE ADEYINKA AKINBADE & ANOR. V. AYOADE BABATUNDE & ORS (2017) LPELR – 43463 (SC). It is obvious that the Appellant’s defence at the trial that it is detaining the truck on the instruction of the Police is as there is no evidence in the Records to show that the truck and 30 tons of cement were tendered and admitted in evidence. The Appellant infact admitted by

“Exhibit A2” that they are in possession of the said truck. That which is admitted requires no further proof. See the case of AJIBULU V. AJAYI (2013) LPELR – 21860 (SC) where the Apex Court held that;
“The law is long established and affirmed by this Court in plethora of authorities that an admitted fact is no longer in issue. See the case of Olufosoye & Ors Vs. Olorunfemi (1989) 1 NWLR (pt. 95) 26. The same principle was also applied in the case ofBunge & Anor Vs. Gov. Rivers State & Ors (2006) 12 NWLR (Pt. 995) 573 at 600 wherein this Court held thus: “When a fact is pleaded by the plaintiff and admitted by the defendant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact, which is admitted.” OGUNBIYI, JSC.

Also, the letter from the Appellant to the Police handing over the arrested suspects to the Police for Prosecution made no mention of handing over the truck and the 30 tons of cement to the Police. (See page 51 of the Records). This makes the evidence of the Respondent that the Appellant is in possession of the truck and 30 tons of cement more compelling of admittance as the correct statement of the state of affairs.

The Appellant placed heavy reliance on the portion of the judgment that states that;
“There is no evidence that the truck and the 30 tons of cement tendered in evidence before the Chief Magistrate Court Obajana has been released to the claimant or any other person at all.” (See page 225 of the Records).

The Appellant is misguided because that portion of the judgment is not part of the findings of the trial Court. It forms part of the summary of the submissions of Parties. This can be gleaned from the next sentence and paragraph in the same page which reads thus;
“The Claimant has approached this Court seeking for the reliefs contained in his statement of claim before this Court. The contention of the defendant is that claimant’s driver Sani Muhammed and Bala Garba a staff of the defendant were arrested for overloading 10bags of 50kg cement from the defendant’s company.”

The analysis of evidence and the findings of the trial Court commenced at the next page, 226 of the Records, I crave indulgence to reproduce anon;
“From the totality of pleadings and evidence before the Court, it is not in

dispute that the claimant owns the truck with registration number XC 156 LKJ. What is in contention is whether the defendant was right to have seized the claimant’s truck in view of the action of the claimant driver which was committed without the authority of the claimant. The question that now begs for an answer is whether the principal can be bound by a criminal action of his agent carried out without his instruction. See Yisi Nigeria Limited V. Trade Bank Plc (2013) and NWLR 522 SC at PG 525 where the Supreme Court held in the negative.
There is no evidence before the Court that the claimant instructed the driver to load extra 10 bags of cement from the defendant’s factory. The defendant’s act of seizing claimant truck together with 30 tons of cement and refusing to release same to the claimant despite repeated demand is therefore unlawful. I so hold.”

A careful examination of the Records and evidence before the trial Court reveals that the trial Court has an understanding of the Respondent’s case; the principles involved and has properly evaluated the evidence against the Appellant. I have no justification to disturb or interfere with these findings.

The Appellant challenges the award of special damages by the trial Court. The wrongful detention of chattel must attract damages. I am well guided by the decision of the Apex Court in J.E. OSHEVIRE LTD V. TRIPOLI MOTORS (Supra) thus;
“In other words, by definition, the gravemen of the tort of detinue is the wrongful retention of the chattel. Mere retention is enough to ground a cause of action in detinue but a successful plaintiff will only be entitled to nominal damages.
See Abed Brothers Ltd. v. Niger Insurance Co. Ltd. (supra) at pages 8 and 9.
A successful plaintiff in a case of detinue is entitled to an order of specific restitution of the chattel, or in default its value and also damages for its detention up to the date of judgment…
“As already pointed out, a claim in detinue is basically for the return of the specific chattel detained or its value (as known or assessed); 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 then they are, generally nominal, unless the evidence establishes a case for substantial award under

this head of damages.” Per ONU, JSC. (Emphasis supplied).
For the purposes of assessing damages in detinue, the Apex Court followed its decision above in the case of NACENN NIG. LTD. V. BEWAC AUTOMOTIVE PRODUCERS LTD. (2011) LPELR – 8125 (SC) thus;
“Detinue is a continuing cause of action which accrues at the date of the 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 damages for its detention, or (2) for the return of the chattel or recovery of its value as assessed and also damages for its detention, or (3) for the return of the chattel and damages for its detention. The position of the law was also clearly stated in the case of Oshevire Limited V. Tripoli Motors supra at P.263 per Onu JSC as follows:-… “Per MUNTAKA-COOMASSIE, JSC. (Emphasis supplied). See also CIVIL DESIGN CONSTRUCTION NIG. LTD. V. SCOA NIG. LTD. (2007) LPELR – 870 (SC) and JULIUS BERGER LIMITED V. OMOGUI (2001) 6 SCNJ, 214 AT 229 – 230.

The Respondent having specifically pleaded and led evidence that the truck is his source of livelihood by pleading the profit he makes from the transportation business using the truck weekly (See paragraphs (vi) – (vii) of the Amended Statement of Claim at page 120-121 of the Records). It is only proper that a Party who has unlawfully held unto the property belonging to another should pay compensation by way of damages for doing so. This is because no Party should be allowed to benefit from its own wrongdoing especially while depriving the other Party of his means of livelihood. The claim was clearly prosecuted and defended in terms of the tort of detinue. See ENEKWE V. INTERNATIONAL MERCHANT BANK OF NIGERIA LTD. & ORS. (2006) LPELR – 1140 (SC); ADIMORA V. AJUFO & ORS (1988) 3 NWLR (PT.80) 1; (1988) 6 SCNJ 81; OGWURU V. COOPERATIVE BANK OF EASTERN (NIG.) LTD. (1994) 8 NWLR (PT. 365) 685 and AJIBADE (MRS.) & ANOR V. MADAM PEDRO & ANOR (1992) 5 NWLR (PT.241) 257; (1992) 6 SCNJ 44.
I resolve Issues 2 and 3 in favour of the Respondent.

ISSUE 1:
Whether the decision of the Court below is not a nullity in law in view of the gratuitous and simultaneous

grants of both the main and alternative reliefs of the Claimant.

It is the submission of the learned Counsel to the Appellant that the trial Court was wrong in granting both the main and alternative relief sought by the Respondent. Submits that the Court failed to consider the mutual exclusivity of the Respondent’s relief as shown by the phrase “OR IN THE ALTERNATIVE” and thus rendered its decision perverse. That the Court is not a Father Christmas to dish out what was not asked for and special damages were also not strictly proved with utmost particularity and same was awarded to the Respondent. Cites XTOUDOS SERVICES (NIG.) LTD. V. TAISEI (W.A) LTD. (2006) ALL FWLR (Pt. 333) 1640, BOLA IGE V. OLUNLOYO & ORS (1984) 1 S.C. 258 and EKEKWE V. AMAJUOYI (2000) ALL FWLR (Pt. 30) 2692.

The Appellant therefore submits that for the above reasons, the appeal should be allowed, the judgment of the trial Court be set aside and that the Respondent’s case be dismissed with substantial cost.

The Respondent submits that the reliefs sought by Respondent are not in any way divided into two (2) parts as represented by the Appellant. That the phrase “OR IN

THE ALTERNATIVE” is meant to link reliefs (iii) and (iv) which deals with the restoration of the truck or replacement of the truck. Further submits that the trial Court did not confuse the reliefs sought by the Respondent as there is no case of double compensation and urged the Court to discountenance the authorities cited by the Appellant as inapplicable.

The learned Counsel to the Respondent submits that the Respondent led credible uncontroverted evidence in proof of his ownership of the truck. Referred the Court to paragraph 1 of the Respondent’s amended statement of claim and the testimony of Respondent’s Witnesses 1 and 2. See Page 122 of the Records. That there is no dispute as to the ownership of the truck and that the dictum in the case of VINCENT BELLO V. MAGNUS EWEKA as cited by the Appellant is to satisfy the Court and not the parties as claimed by the Appellant. Relies on CDC (NIG.) LTD. V. SCOA (NIG) LTD (2007) ALL FWLR PG 1 and CLIFFORD OSUJI V. NKEMJIKA EKEOCHA ALL FWLR (PT 490) 614.

The learned Counsel to the Respondent urged the Court to hold that the trial Court was right when the trial Court granted all the reliefs sought by the

Respondent and discountenance all the submissions and authorities cited by the Appellant.

An alternative award is not an additional award. The meaning of alternative award was determined in the case of IDUFUEKO V. PFIZER PRODUCTS LTD & ANOR. (2014) LPELR – 22999 (SC) where the Apex held that;
“An alternative award is an award that can be made instead of another. It is a separate claim and a separate award. It is not claimed as an additional award. This must be avoided, otherwise it would amount to double compensation. See the cases of the M. V CAROLINE MAERSK & 2 ORS v. NOKOY INVESTMENT LTD (2002) 6 SCNJ 208 at 224, AJAO v. ADEMOLA (2005) 3 NWLR (Pt.913) 636 at 340.” Per GALADIMA, JSC.

The meaning and effect of the use of a semi colon (;) and the phrase “or” received judicial interpretation in the case of ABUBAKAR & ORS V. YAR’ADUA & ORS (2008) LPELR – 51 (SC) where the Apex Court per NIKI-TOBI, JSC (OBM) posited thus;
“My immediate observation of the provisions is that (a), (b) and (c) are lumped together, in the sense that they are punctuated by semi colons. What does that mean? To be able to answer this question, I

will look at the definition of semi-colon as is in Shorter Oxford English Dictionary. It states:
“In its present use it is the chief stop intermediate in value between the comma and the full stop.” I would add that it is a very short pause between two clauses. So in essence these paragraphs (a), (b) and (c) are like continuation of one to the other, but with pauses. In other words, they belong to the same class. After stating ground (c), together with the semi-colon, the draftsman, then went on to add the word ‘or’, a word which I think distinguished the grounds in (a), (b) and (c) from the provision in paragraph (d) that immediately comes thereafter. My answer to the question I earlier asked is that paragraphs (a), (b) and (c) belong to the same family and category. If all the paragraphs (a), (b), (c) and (d) were meant to fall within the same category, then the word ‘or’ wouldn’t have been used. Now, what does the word ‘or’ stand for? According to Section 18(3) of the Interpretation Act: “The word ‘or’ and the word ‘other’ shall, in any enactment be construed disjunctively and not as implying similarity.”
In the same Oxford Dictionary, the word

disjunctive is defined as:
“Having the property of disjoining; characterized by separation. Involving a choice between two or more things or statements; alternative.”
The above definitions definitely shed some light on the fact that paragraph (d) is not an extension of the earlier paragraphs, but is separate, and an alternative. If the legislature had wanted paragraph (d) to be a continuation of the three preceding paragraphs, there wouldn’t have been any need to use the word ‘or’.”

A careful study of the Respondent’s Amended Statement of Claim, precisely at page 120 of the Records shows that the “OR IN THE ALTERNATIVE” is a continuation of relief (iii) and is linked to relief (iv) because there is a semi colon after relief (iii). For ease of reference, it is reproduced thus;
“(iii) Restoration to the claimant of the said truck with Registration No. XC 156 LKJ in its form and condition as at the 23rd of May, 2012 together with the 30 tons of cement which had been paid for vide ATC No. 365692;
OR IN THE ALTERNATIVE
(iv) Replacement of the truck, i.e. recovery of its current value to be assessed.”

The Appellant clearly misunderstood the reliefs sought by the Respondent when it argued that the trial Court granted both the main reliefs and alternative reliefs sought simultaneously. The golden rule of interpretation is to give words their ordinary, clear and simple meaning where they do not lead to absurdity or ambiguity. See ABUBAKAR & ORS. V. YAR’ADUA & ORS. (Supra). There was no error in the grant of the reliefs sought, I shall not further belabor the issue.
I also resolve this issue in favour of the Respondent.
This appeal lacks merit and is hereby dismissed.

The decision of the trial Court Coram Yunusa Musa, J. delivered on 30/01/17 is hereby affirmed.

The trial Court found and which finding has been affirmed in this Judgment, that the truck of the Respondent was wrongfully detained by the Appellant. The Respondent was awarded damages by the trial Court which terms seem uncertain. However, a perusal of the reliefs sought clearly show requests in the alternative which ordinarily is the nature of relief in a tort of detinue.

In the interest of bringing litigation to an end and the restoration of business relationship,

Section 15 of the Court of Appeal Act, 2004 enables this Court to step into the shoes of the trial Court to do that which ought to have been done. Accordingly, I hereby order the restoration to the Respondent of the said truck with Registration No. XC 156 LKJ in its form and condition as at the 23rd of May, 2012 together with the 30 tons of cement which had been paid for vide ATC No. 365692.

For the avoidance of doubt, this Court hereby affirms the grant of all the reliefs granted by the trial Court excluding the alternative relief to wit;
iv) Replacement of the truck, i.e. recovery of its current value to be assessed. It is so ordered.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered in Court by my learned brother, Monica Bolna’an Dongban-Mensem, PCA.

I agree fully with the reasoning and the conclusion of my learned brother which I adopt as mine. I too, having gone through the record and facts before us, find no merit in this appeal. The appeal is accordingly dismissed and I abide by the consequential orders made therein.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the

judgment just delivered by my learned brother, MONICA BOLNA’AN DONGBAN-MENSEM, PCA. I agree with the reasoning and conclusion arrived at in the lead judgment.
Detinue is a tort and is defined as:
“Detinue is a continuing cause of action which accrues at the date of the 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 damages for its detention; or (2) for the return of the chattel or recovery of its value as assessed and also 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 NMLR 314 at 318-319.” Per UWAIFO, J.S.C.

Appellate Courts have explained what a claimant in detinue needs to establish in order to succeed in a claim in detinue. One of such cases is J.E OSHEVIRE LTD V TRIPOLI MOTORS (1997) LPELR-1584(SC) where the apex Court said:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“The gist of liability in detinue is the wrongful detention of the plaintiffs chattel by the defendant after the plaintiff has made a demand for its return. Without proof of wrongful detention on the part of the defendant, a claim in detinue cannot arise. A detention is not wrongful unless the defendant’s possession is adverse. Accordingly for an action in detinue to succeed, the defendant must have shown a definite intention to keep the chattel in defiance of the plaintiffs rightful claim thereto and this is usually manifested by proving a demand by the plaintiff and a refusal by the defendant to return or deliver the chattel to the plaintiff. When, however, the refusal is conditional, a case of withholding the chattel against the will of the plaintiff is not necessarily established, provided the condition is reasonable and not a mere device to put off the plaintiff.” Per IGUH, J.S.C.

The trial Court found that the detention of the truck was wrongful and there is no legal basis to interfere with the findings of the trial judge. I also find that the appeal lacks merit and is hereby dismissed. I also abide by the other orders arrived at in the lead judgment.

Appearances:

LIMAN SALIU, ESQ. For Appellant(s)

FUNSHO AGBANAH, ESQ., with him, C.D. ANIELOZIE, ESQ. For Respondent(s)