ENGR. YUSUF AMUDA UMORU V. IJUMU LOCAL GOVERNMENT COUNCIL & ANOR
(2010)LCN/3550(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of January, 2010
CA/A/298/07
RATIO
TORT: MEANING AND NATURE OF DETINUE
Detinue is a continuous cause of action which accrues at the date of the wrongful refusal to deliver up the goods and continues until delivery of Judgment.
See the case of:-
– General and Finance Facilities Ltd vs. Cooks cars (Ramford) Ltd 1963) 2 All F.R. Page 314 at 327.
In Ordia vs. Piedmont (supra), it was held among others by Belgore JSC (as he then was) that:-
“Detinue is now an action only in tort for the failure to deliver up the Plaintiffs chattel and it entails claim for the return of the chattel or its value and damages for its detention.” PER JIMI OLUKAYODE BADA, J.C.A.
TORT: FACTORS FOR ESTABLISHING A CLAIM IN DETINUE
In order for a Plaintiff to succeed in a claim in Detinue he must adduce credible, admissible and sufficient evidence to establish the following factors:-
(1) That he is the owner of the chattel or property in question;
(2) That he has an immediate right to the possession of the chattel;
(3) That the Defendant is or was in actual possession of the chattel;
(4) That the Plaintiff has made a proper demand on the Defendant to deliver up the chattel to the Plaintiff, and
(5) That the Defendant has unjustifiably refused to deliver up possession of the chattel to the Plaintiff. PER JIMI OLUKAYODE BADA, J.C.A.
TORT: DETINUE; EFFECT OF FAILURE OF A PLAINTIFF TO ESTABLISH HIS CLAIM TO OWNERSHIP OF THE CHATTEL WRONGFULLY DETAINED
Furthermore, it is the law that where a Plaintiff fails to establish his claim to ownership of the chattel detained wrongfully, as in Sommer vs. F.H.A. (1992) 1 NWLR Part 219 Page 548 where the title to the goods in question was in dispute, in addition to establishing that there was a demand coupled with wrongful refusal by the Defendant, the action must fail. See also the following cases:-
-Sodimu vs. Nigerian Ports Authority (1975) 4 S.C. Page 15 at 27:
-Owena Bank vs. Olatunji (supra):
-Guinness (Nig.) Plc vs. Mooke (2001) FWLR Part 36 Page 981 :
-W. A. Oilfields vs. U.A.C. (2000) 13 NWLR Part 685 Page 68:
– U.B.A. vs. Osezua (1977) 2 NWLR Part 485 Page 28:
-Shuwa vs. Chad Basin Development Authority (1991) 7 NWLR Part 205 Page 550. PER JIMI OLUKAYODE BADA, J.C.A.
TORT: REMEDIES AVAILABLE TO A PLAINTIFF IN AN ACTION IN DETINUE
It is the law that the remedies available to a Plaintiff in an action in Detinue are:-
(1) Where the Chattel is not available, the value of the Chattel and damages for its detention. The Plaintiff must prove both the value of the Chattel and the loss suffered following the detention of the Chattel; or
(2) Where the Chattel is still available, the return of the Chattel and the damages for its detention; or
(3) Where the Chattel, though available, had either been rendered useless, or is completely vandalized, hidden or taken out of jurisdiction and sight of the sheriff the value of the Chattel and damages for its detention. PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
ENGR. YUSUF AMUDA UMORU – Appellant(s)
AND
1. IJUMU LOCAL GOVERNMENT COUNCIL
2. MR. M. O. AJAYI – Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Kogi State High Court sitting at Kabba which was delivered on the 24th day of July 2006.
By Paragraph 21 of the further amended Statement of Claim, the Appellant as Plaintiff at the lower Court claimed against the Respondents jointly and severally the following reliefs:-
“(i) A declaration that the directive of the 1st Defendant to the 2nd Defendant ordering the detention of and the actual detention by the Defendants of the Plaintiff’s 130G Gat Grader in Ogidi, Ijumu Local Government Area of Kogi State where it was used to grade roads under a hire agreement between the Plaintiff and Master Concepts Nigeria Limited, is wrongful, illegal and unconstitutional.
(ii) An order that the Defendants return the Plaintiff’s 130G Gat Grader to the Plaintiff’s yard at Esomi-Checkpoint in Okene, Kogi State or to pay the Plaintiff the sum of N50,000 being the cost of transporting the grader from Ogidi to Okene
(iii) The sum of N2,940,000.00 (Two Million, Nine Hundred and Forty Thousand Naira) only being the Plaintiff’s daily loss of income for the said 130G Cat Grader from 17/12/2003, the date Plaintiff was wrongfully and illegally prevented from removing his Grader to 21/2/2004.
(iv) The sum of N50,000.00 daily being loss of use of the said 130G Cat Grader suffered by the Plaintiff from 22/2/2004 to date of Judgment.
(v) The sum of N150,000.00 being the cost of damage caused to the said Grader while under the wrongful and illegal detention/custody of the Defendants.
(vi) The sum of N100,000.00 being the cost of legal fees incurred by the Plaintiff in engaging the services of solicitors to prosecute this suit.”
The 1st Respondent filed an amended Statement of Defence while the 2nd Respondent filed his Statement of Defence and the Appellant as the Plaintiff filed a reply to the 2nd Defendant’s Statement of Defence.
At the conclusion of hearing, the Learned trial Judge in a considered Judgment dismissed the Plaintiff/Appellant’s Claims.
The Appellant dissatisfied with the said Judgment now appealed to this Court.
The learned Counsel for the Appellant formulated four (4) issues for determination as follows:-
“(1) Whether it was necessary for the Plaintiff to establish privity of contract between the Defendants and himself before this action, which is founded in tort, can succeed. (Ground 3 of the Amended Notice and Grounds of Appeal).
(2) Whether from the totality of the evidence adduced at the trial of this case, the Plaintiff had established a case of detinue against the Defendants. (Grounds 1, 2, 5, 6,7, 8 and 14 of the Amended Notice and Grounds of Appeal).
(3) Whether having regards to settled principles of law relating to the award of damages in detinue, the quantum of damages assessed by the Learned trial Judge in this case is correct? (Grounds 4, 10, 12, and 13 of the Amended Notice and Grounds of Appeal).
(4) Whether the Learned trial Judge had properly evaluated the evidence adduced by the parties at the trial of this case. (Grounds 8, 10, 11 and 14 of the Amended Notice and Grounds of Appeal).”
The learned Counsel for the Respondents did not formulate any issue for determination but he adopted the issues formulated for determination by Counsel for the Appellant.
At the hearing, the learned Counsel for the Appellant referred to the Appellant’s brief of argument filed on 18/1/08 but deemed filed on 13/11/08.
He adopted the said Appellant’s brief in urging the Court to allow the appeal.
The learned Counsel for the Respondent also referred to the Respondent’s brief of argument dated 9/2/09 but deemed filed on 19/5/09.
He urged the Court to dismiss the appeal.
Since the learned Counsel for the Respondent did not formulate any issue for determination, I shall determine this appeal based upon the issue formulated by Counsel for the Appellant.
ISSUE No. 1
Whether it was necessary for the Plaintiff to establish privity of contract between the Defendants and himself before his action which is founded in tort can succeed?
The learned Counsel for the Appellant stated that the Plaintiff sought to recover possession of his chattel i.e. a Grader which the Defendants detained. He went further that the entire transaction arose out of a hire agreement between the Plaintiff and PW3 on the one hand and the PW3 and the 1st Defendant on the other.
It was submitted on behalf of the Appellant that the Learned trial Judge was wrong to have held that the Plaintiff, not being a party to the contract between the 1st Defendant and Master Concepts Nig. Ltd, cannot claim any remedy under the contract. He went further that the Plaintiffs action was not based on the contract but on the wrongful detention of his chattel.
He relied on the following cases:-
– Ordia vs. Piedmont (1995) 2 SCNJ Page 175 at 181:
– Iheanacho vs. Uzochukwu (1997) 1 SCNJ Page 117 at 126:
– M.I.N. Ltd vs. M.F.K.W.A. Ltd (2005) 10 NWLR Part 934 at Page 645 particularly at 668.
It was submitted further that there was no onus on the Plaintiff to establish privity of contract between him and the 1st Defendant. He referred to – Salamond: Laws of Torts 17th Edition Page 111.
It was finally submitted on behalf of the Appellant that the lower court was wrong to have held that the Plaintiff could not recover against the Defendants because there was no privity of contract.
In his own submission the learned counsel for the Respondents submitted that there is no contract between the 1st Respondent and the Appellant. He went further that the Appellant under cross-examination at the High Court stated that he was not a party to the contract between the 1st Respondent and Master Concept Nig. Ltd. It was submitted on behalf of the Respondents that the Appellant cannot claim any remedy, under the contract he is not a Party to.
He referred to the case of:-
– Thomas Makwe vs. Chief Nwankor and Others (2001) 7 NSCOR Page 433 at 445-446.
Learned counsel stated that it is only parties to a contract that are bound by the terms of the contract. He went further in his argument that the Appellant should be treated as a stranger to the contract.
In this appeal, a close examination of the Plaintiff/Appellant’s Claim before the lower Court would reveal that the claim was for recovery of possession of this Grader and damages for its wrongful detention.
In cases of this nature, an action for recovery of chattel or its value and damages for its detention is one founded on tort and it is known as Detinue.
Detinue is a continuous cause of action which accrues at the date of the wrongful refusal to deliver up the goods and continues until delivery of Judgment.
See the case of:-
– General and Finance Facilities Ltd vs. Cooks cars (Ramford) Ltd 1963) 2 All F.R. Page 314 at 327.
In Ordia vs. Piedmont (supra), it was held among others by Belgore JSC (as he then was) that:-
“Detinue is now an action only in tort for the failure to deliver up the Plaintiffs chattel and it entails claim for the return of the chattel or its value and damages for its detention.”
It is my view that based on the Plaintiff/Appellant’s claim before the lower court, the action is in detinue and the doctrine of privity of contract is irrelevant and does not apply.
– See the case of Iheanacho vs. Uzochukwu (supra).
In Beaman vs. A.R.T.S Ltd (1948)2 All E.R. Page 89 it was held among others that Detinue consist of wrongful withholding of the Plaintiff’s goods. It does not matter whether the person or the wrong doer i.e. detainee of the goods obtained possession of the detained goods lawfully or illegally or by seizure. What is relevant however, is the wrongful retention of the chattel after demand. It is therefore material that, to sustain an action in detinue, there must be demand by the Plaintiff and on receipt of this notice the persistence in keeping the chattel by the Defendant would give rise to an action in Detinue.
In view of the foregoing, I agree with the submissions of the learned Counsel for the Appellant that there was no onus on him to establish privity of contract between him (Appellant) and the 1st Defendant. The Appellant’s action being in detinue what is required of him is to show that his chattel was withheld or detained by the Defendants which prevented him from having his possession of the chattel.
Consequently, this issue is resolved in favour of the Appellant.
ISSUE NO. 2
Whether from the totality of the evidence adduced at the trial of this case, the Plaintiff had established a case of detinue against the Defendants.
The learned Counsel for the Appellant referred to Paragraphs 4 – 20 of the further Amended Statement of Claim on pages 63 to 65 of the Record of Appeal and he submitted that in an action for detinue, the Plaintiff must establish the following:-
(1) That he is the owner of the chattel, the subject matter of the action;
(2) That he has an immediate right to the possession of the chattel;
(3) That the Defendant is or was in actual possession of the chattel;
(4) That the Plaintiff has made a proper demand on the Defendant to deliver up the chattel to the Plaintiff and
(5) That the Defendant has unjustifiably refused to deliver up possession of the chattel to the Plaintiff.
He relied on the following cases:-
– Owena Bank Plc vs. Olatunji (2002) 12 NWLR Part 781 Page 259 at 326 Paragraphs G-E:
– Lufthansa vs. Odiese (2006) 7 NWLR Part 978 Page 34 at 76 Paragraphs B – D.
He submitted that the Plaintiff/Appellant had established all the above ingredients. He also made references to the evidence before the lower Court and he relied on the following cases to establish that a case of Detinue had been established against the Defendants.
– Lewis Peat vs. Akhimien (1976) 2 FNR Page 80 at 83:
– Samson Ajibade vs. Mayowa (1978) NSGG Page 458 at 461:
– Chief Niyi Akintola vs. Buraimoh Balogun & others (2000) 1 NWLR Part 642 Page 532 at 545:
– The state vs. Aibangebe (1988) 7 S.C. Part 1 Page 154 at 166 – 167:
– Owoyemi Motors & Finance co. Ltd vs. Haruna (1975) NNLR Page 180 at 182.
On the other hand the learned counsel for the Respondents also referred to the case of:- Owena Bank Plc vs. Olatunji (supra) where it was held among others that the Plaintiff must prove that he is the owner of the chattel (Grader) the subject matter of this suit. He went further that there is nowhere in the contract between the 1st Respondent and Master Concept (Nig) Ltd that shows that the Appellant is the owner of the said chattel (Grader). He argued further that the Appellant did not lead evidence pursuant to Section 136 and 137 of the Evidence Act to discharge the burden that he owns the Grader.
It was argued further that the Appellant is a stranger to the contract between 1st Respondent and Masterconcept Nig. Ltd. He referred to the case of:- Olaniyi vs. Akanbi (2002) 7 FWLR Part 84 at Page 113.
It was also contended on behalf of the Respondents that the Appellant never led evidence to show that he demanded for the release of the Grader and that the 1st Respondent refused or failed to release the Grader to him without lawful excuse.
In order for a Plaintiff to succeed in a claim in Detinue he must adduce credible, admissible and sufficient evidence to establish the following factors:-
(1) That he is the owner of the chattel or property in question;
(2) That he has an immediate right to the possession of the chattel;
(3) That the Defendant is or was in actual possession of the chattel;
(4) That the Plaintiff has made a proper demand on the Defendant to deliver up the chattel to the Plaintiff, and
(5) That the Defendant has unjustifiably refused to deliver up possession of the chattel to the Plaintiff.
Furthermore, it is the law that where a Plaintiff fails to establish his claim to ownership of the chattel detained wrongfully, as in Sommer vs. F.H.A. (1992) 1 NWLR Part 219 Page 548 where the title to the goods in question was in dispute, in addition to establishing that there was a demand coupled with wrongful refusal by the Defendant, the action must fail. See also the following cases:-
-Sodimu vs. Nigerian Ports Authority (1975) 4 S.C. Page 15 at 27:
-Owena Bank vs. Olatunji (supra):
-Guinness (Nig.) Plc vs. Mooke (2001) FWLR Part 36 Page 981 :
-W. A. Oilfields vs. U.A.C. (2000) 13 NWLR Part 685 Page 68:
– U.B.A. vs. Osezua (1977) 2 NWLR Part 485 Page 28:
-Shuwa vs. Chad Basin Development Authority (1991) 7 NWLR Part 205 Page 550.
On the issue of the ownership of the Grader, the Plaintiff/Appellant pleaded in paragraph 5 of the further amended Statement of Claim that one Akubo Kizito, on behalf of Master Concepts Limited hired his 130G Cat Caterpillar Grader for 9 days. The 1st and 2nd Defendants in their Separate Statements of Defence denied paragraph 5 of the further amended Statement of Claim among others and they put the Plaintiff to the strictest proof of same at the trial of the suit.
In Harris vs. Gamble (1978) 7 Ch. D. Page 877 referred to in Lewis & Peat (N.R.I.) Ltd vs. A. E. Akhimien (1976) All N.L.R. Page 265, it was held that a plea that “Defendant puts Plaintiff to proof’ amounts to insufficient denial.
From the pleadings it could be seen that denial of the Plaintiff’s title to the said chattel i.e. the Grader is insufficient. In my own view the Defendants/Respondents have not traversed the title of the Plaintiff to the Grader in this case. A Defendant who intends to impugn the title of the Plaintiff in an action for detinue must specifically traverse the title.
Furthermore, at the hearing the Plaintiff gave evidence that he was the owner of the Grader which he let out to PW3 on hire. The witnesses to the Plaintiff corroborated the evidence. And on the Defendant’s side, the 2nd Defendant on page 114 of the Record of Appeal stated as follows:-
“I and my Ogidi Community do not have any claim to possession or ownership as against the Plaintiff. On the day that the Plaintiff came to remove the Grader, he told me that he was the owner.”
In the circumstance, the Plaintiff/Appellant established that he is the owner of the chattel i.e. the Grader which is the subject matter of the action.
The second ingredient which the Plaintiff must establish is his immediate right to the possession of the chattel.
The evidence before the trial Court was that the Plaintiff gave out the Grader to the PW3 for only 9 days. It follows that the PW3 can only, legally retain the Grader for 9 days and no more. Any retention outside the 9 days hire period by him will be wrongful.
In Halbury’s Laws of England 4th Edition Volume 2 Paragraph 1559 at Page 726 states that:-
“Return of Chattel- The hirer must return the hired Chattel at the expiration of the agreed term.”
See:- Owoyemi Motors & Fin Go. Ltd vs. Haruna (1975) NNLR Page 180 at 184:
:-Labode vs. Otubu (2001) 7 NWLR Part 712 Page 256 at 287 Paragraph E – G.
Therefore, it is my view that the Plaintiff was entitled to immediate possession of the Grader after the 9 days lease granted to PW3 had lapsed.
The evidence before the trial Court showed that the 9 days expired on the 13th December 2003 therefore the Plaintiffs right to immediate possession of the Grader accrued to him on 13/12/03.
Furthermore, a close examination of Exhibit “P1” the hire agreement between the Plaintiff and PW3 provides in clause 1.7 as follows:-
“The hired equipment cannot be mortgaged, leased or hired to third parties or moved from the declared site of equipment use to another site.”
It is clear from the clause above that the PW3 had no right under the agreement to give out the Grader to the 1st Defendant on hire. He can only use the Grader himself. And in a contract of bailment as in this case, where the bailee does an act which is contrary to the contract of bailment, the bailor has the right to sue the bailee or any other person to whom the bailee has transferred possession for the return of the Chattel.
See:- Labode vs. Otubu (supra).
In the instant case, since the PW3 has done an act, which is contrary to the contract of bailment, the bailor i.e. the Plaintiff has the right to sue the bailee or any transferee of the bailee for possession.
In the circumstance, it is my view that the Plaintiff had established that he was entitled to the immediate possession of the Chattel i.e. the Grader.
Concerning the 3rd, 4th and 5th ingredients itemized earlier in this Judgment, it is not in dispute that the Defendants were in possession of the Grader at the time the Plaintiff went to recover it on 17/12/03. It was also not in dispute that the Plaintiff made a demand for the return of the Grader. It is on record that the 2nd Defendant acting as agent of the 1st Defendant refused to allow the Plaintiff to remove his Grader.
Therefore, it is my view that the Plaintiff had proved that the Defendants were in actual possession of the Grader and had refused to release the Grader to the Plaintiff after a proper demand had been made for its return.
From the totality of the evidence adduced at the trial of this case, the Plaintiff had established a case of detinue against the Defendants.
This issue is also resolved in favour of the Appellant.
Issue No. 3
Whether, having regards to settled principles of law relating to the award of damages in detinue, the quantum of damages assessed by the Learned trial Judge in this case is correct.
The learned Counsel for the Plaintiff/Appellant submitted that the Appellant is entitled to damages. He stated that the Appellant’s action is based on detinue and that the law is settled that a Plaintiff who has a right of action in detinue has three remedies open to him. They are:-
(i) A claim for the value of the chattel and damages for its detention;
(ii) A claim for the return of the chattel and damages for its detention or
(iii) A claim for the return of the chattel or its value as assessed and damages for its detention.
He relied on the case of:- Amira (Nig) Ltd vs. Mal (Nig) Ltd (2001) 17 NWLR Part 742 at Page 469 at 505 Paragraph C – G.
Learned Counsel for the Plaintiff/Appellant submitted that although the learned trial Judge dismissed the Plaintiff’s Claim but that he proceeded in line with the directives of the Supreme Court to assess the damages that he would have awarded to the Plaintiff had he found in his favour on the issue of Liability.
On the other hand the learned Counsel for the Defendants/Respondents also referred to the remedies available to the Plaintiff/Appellant earlier referred to by the Counsel for the Appellant.
He referred to the evidence before the trial Court that the Defendants were not aware of the Plaintiffs existence. He went further that the Defendant only got to know of the Plaintiff as the owner of the Grader when the Area Commander, Nigeria Police, Kabba called the Defendants/Respondents’ attention to that fact. He went further that the proper person to claim damages for wrongful detention is no other person than PW3 who took the Grader to the site and that PW3 has immediate right of possession to the Grader. It was also stated that as at the time the Grader got to the site where it was allegedly detained, the 2nd Defendant/Respondent, the ordinary people in the town believed that the Grader belongs to PW3 who has immediate right to its possession. And further that their refusal to the removal of the Grader was not self-help but instrumental to the fact that it was not the Appellant that took the Grader to the site and they have moral obligation to secure the safety of the Grader.
Learned Counsel for the Defendants/Respondents therefore urged that the claim for wrongful detention of the grader is out of con and Appellant’s appeal be dismissed.
It is the law that the remedies available to a Plaintiff in an action in Detinue are:-
(1) Where the Chattel is not available, the value of the Chattel and damages for its detention. The Plaintiff must prove both the value of the Chattel and the loss suffered following the detention of the Chattel; or
(2) Where the Chattel is still available, the return of the Chattel and the damages for its detention; or
(3) Where the Chattel, though available, had either been rendered useless, or is completely vandalized, hidden or taken out of jurisdiction and sight of the sheriff the value of the Chattel and damages for its detention.
In this case, a careful examination of Paragraph 21 of the further amended Statement of Claim showed that the Plaintiff/Appellant opted for the second remedy from the three options earlier set out above. See:- Amira (Nig.) Ltd vs. Mal (Nig.) Ltd (supra).
The damages recoverable by a successful Plaintiff in an action for detinue are the loss incurred by the Plaintiff.
Even though the trial Court dismissed the Plaintiff’s/Appellant’s Claim, he proceeded with the directives of the Supreme Court, to assess the damages that he would have awarded to the Appellant if he had found in his favour.
In his Judgment the learned trial Judge found that the Plaintiff had hired a load loader from Okene Local Government for the removal of the Grader at a cost of Fifty Thousand Naira (N50,000.00).
It is my view that the Plaintiff/Appellant is entitled to the amount i.e. (N50,000.00) Fifty Thousand Naira and I affirm the award in his favour.
Furthermore, the Learned trial Judge went on that if he were to award damages for the Plaintiff/Appellant for the detention of the Grader, he would have awarded the sum of N45,000.00 to the Plaintiff per day for five days for loss of use of the Grader. But learned Counsel for the Plaintiff/Appellant contended that the detention of the Grader was from 17/12/03 to 21/2/04 (the date of meeting at the Area Commanders Office).
In an action for detinue, the Court may order the return of the Chattel and damages for its retention. The measure of damages for loss of use is the actual loss suffered by the Plaintiff for its detention.
The Learned trial Judge refused to award damages to the Plaintiff for the period before the meeting at the Area Commander’s Office because according to him, the Plaintiff had not established his title to the Grader at that time.
It would be recalled that earlier in this Judgment under Issue No. 2, it was found that the Plaintiff established his title as the owner of the Chattel i.e. the Grader which is the subject matter of the action at the trial Court.
I therefore have no difficulty in holding that the detention of the Grader by the Defendants from 17/12/03 to 21/2/04 i.e. (the date of meeting at the Area Commander’s Office) was wrongful and Plaintiff is entitled to damages for that period.
The Plaintiff/Appellant claimed the sum of N2,940,000.00 as damages, in view of the foregoing I hereby award the said sum to the Plaintiff/Appellant since this Court cannot award more than what he has claimed.
See the following cases:-
– Zennon vs. Idrissiya (2006) 8 NWLR Part 982 Page 246:
– Chief J. K. Odumosu vs. A.C.B. (1976) U.I.L.R. Part IV Page 583 at 588.
The Learned trial Judge also found that after the meeting at the Area Commander’s Office, the Defendant released the Grader to the Plaintiff and that it was the Plaintiff who refused to remove the Grader.
In cases of this nature it is the duty of the Plaintiff to mitigate his loss.
It is my view that after the meeting at the Area Commander’s Office, Kabba, the Defendants accepted his title as the owner of the Grader. But contrary to the directive of the Area Commander, the Plaintiff failed to remove his Grader. It is also on record that the Defendant’s Chairman invited the Plaintiff and wanted to assist him by providing money to transport the Grader but the Plaintiff turned down the offer.
In view of the foregoing, I affirm the view of the Learned trial Judge in respect of the Plaintiff’s claim for the period 22/2/2004 to the date of Judgment on 24/7/2006.
For avoidance of doubt, leg (iv) of the Plaintiff’s Claim is also refused by me.
Even though I disagreed with Learned trial Judge on some parts of the claim, this issue is resolved in favour of the Plaintiff/Appellant.
Issue 4
Whether the Learned trial Judge had properly evaluated the evidence adduced by the parties at the trial of this case.
It was submitted by learned Counsel for the Appellant that the trial Judge did not evaluate the evidence adduced before him properly.
He referred to the findings of fact made by the said Learned Judge and he submitted that the findings of fact made by the said Learned trial Judge were either perverse or cannot be supported.
He referred to specific findings made by the trial Judge that the Plaintiff was not a party to the contract between Master Concept Ltd and the 1st Defendant.
He went further that since the Plaintiff was not a party to the agreement that he is a third party and cannot claim any remedy under the contract.
The learned Counsel for the Respondents did not respond to this issue but that notwithstanding, I will look at the issue objectively.
The law is that evaluation of evidence and ascription of probative value to such evidence are the primary function of a Court of trial which saw, heard and duly assessed the witness. Where a trial Court unquestionably evaluates the evidence and justifiably assesses the facts, the duty of the Court of Appeal is to find out whether there is evidence on record on which the trial Court could have acted. Once there is sufficient evidence on record from which the trial Court arrives at its findings of fact, the Court of Appeal cannot interfere.
The findings of fact made by a trial Court are entitled to be respected by an appellate Court when it is clear that the trial Court has adequately performed its primary duty of evaluation and ascribing probative value to the evidence before it. In such circumstances, such findings are to be approached by an appellate Court with due caution and not on the basis that it would or might itself found otherwise. The essential consideration is that there is enough evidence on record from which the trial Court’s findings can be supported.
See the following cases:-
– Woluchem vs. Gudi (1981) 5 S.C. Page 291:
– Igwego vs. Ezeogo (1992) 6 NWLR Part 249 Page 561:
– Joel Golday Co. Ltd vs. C.D.B. Plc (2003) 5 NWLR Part 814 Page 586:
– Ezekwesili vs. Agbapuonwu (2003) 9 NWLR Part 824 at 377.
An appellate Court can in appropriate circumstances look at evidence on record and make an objective finding of fact where there has been a perverse finding made by a trial Court. An appellate Court is competent to tamper with the evaluation of the evidence and/or findings of a trial Court if they are not based on proper and dispassionate appraisal of evidence given in support of each party’s case or where such findings are perverse in the nature of the evidence or where on the face of the record it is clear that justice has not been done in the case.
See the following cases:-
– Lawal vs. Dawodu (1972) 1 All NLR Part 2 Page 270:
– Fashanu vs. Adekoya (1974) 6 S.C. Page 83:
– Balogun vs. Akanji (1988) 1 NWLR Part 70 Page 301.
I will now look at some of the trial Court’s findings and determine whether or not the trial Court’s findings were based on proper and dispassionate appraisal of the evidence before it.
The trial Court in its Judgment:-
“(i) That the Plaintiff was not a party to the contract between Master Concept Ltd and 1st Defendant so, no privity of contract existed between the Plaintiff and the 1st Defendant.
(ii) That in the absence of making the Plaintiff a party to the contract between Master Concept and the 1st Defendant, the Plaintiff who is a third party cannot claim any remedy under the contract.
(iii) Exhibit P1 does not apply to the 1st Defendant because the content was not incorporated in Exhibit P8 so, the 1st Defendant was not bound by it.”
I have treated part of this issue under Issue No. 1 but I will also say that in a contract of bailment the bailor has the right of action against the sub-bailee and that the relationship between the bailor and the sub-bailee exists independently of the contract between the bailor and the original bailee.
It is my view that it is not essential for the Plaintiff to establish any contractual relationship between him and the person detaining his chattel before his action for detinue can succeed.
See – Iheanacho vs. Uzochukwu (supra).
Furthermore, even though there was no direct relationship between the Plaintiff and the Defendants, the rights acquired by the Defendants on the hiring the Grader was limited by rights conferred on the PW3 by Exhibit “P1”.
Once the Plaintiff becomes entitled to immediate possession on the expiration of the original term granted to the PW3, he acquires in law a right of action against both the PW3 and any other person to whom the PW3 transferred the chattel to.
I have looked into the other findings of the Learned trial Judge earlier in this Judgment, it would therefore not be necessary to repeat myself in respect of those findings.
On this score, I hereby set aside the above findings made by the Learned trial Judge.
This issue is theretofore resolved in favour of the Appellant.
In conclusion, even though the four issues in this appeal were resolved in favour of the Appellant, there are some areas where I agreed with the findings of the Learned trial Judge, consequently, it is my view that this appeal succeeded in part.
In view of the foregoing, the Judgment of the Learned trial Judge, delivered on the 24th day of July 2006 is hereby set aside. In its place, Judgment is hereby entered in favour of the Plaintiff/Appellant against the Defendants jointly and severally in the following terms:-
(i) A declaration that the directive of the 1st Defendant to the 2nd Defendant ordering the detention of and the actual detention by the Defendants of the Plaintiffs 130G Cat Grader in Ogidi, Ijumu Local Government Area of Kogi State where it was used to grade roads under a hire agreement between the Plaintiff and Master Concept Nigeria Ltd is wrongful, illegal and unconstitutional.
(ii) An order that the Defendants return the Plaintiff’s 130G Cat Grader to the Plaintiff’s yard at Esomi-Checkpoint in Okene, Kogi State or to pay the Plaintiff the sum of (N50,000.00) Fifty Thousand Naira being the cost of transporting the Grader from Ogidi to Okene.
(iii) The sum of N2,940,000.00 (Two Million, Nine Hundred and Forty Thousand Naira) only being the Plaintiff’s daily loss of income for the said 130G Cat Grader from 17/2/2003 the date the Plaintiff was wrongfully and illegally prevented from removing his Grader to 21/2/2004.
(iv) The relief in prayer (4) for the sum of N50,000.00 daily being loss of use of the said 130G Cat Grader suffered by the Plaintiff from 22/2/2004 to the date of Judgment is hereby refused.
(v) The relief in prayer (5) for the sum of N150,000.00 being the cost of damages caused to the said grader while under the wrongful and illegal detention/custody of the Defendants is also refused.
This shall be the Judgment of the Court.
There shall be no order as to costs.
UWANI MUSA ABBA AJI, J.C.A.: I have read before now the judgment just delivered by my learned brother J.O. BADA, JG, and I agree with the judgment.
The appeal is meritorious and it is also allowed by me.
I endorsed consequential order as to cost.
AYOBODE O. LOKULO-SODIPE, J.C.A.: I agree.
Appearances
MR. A. M. ALIYU with him is Miss M. O. UMARFor Appellant
AND
MR. A. SULEIMANFor Respondent
