ENTERPRISE BANK LIMITED v. CHIEF (AMBASSADOR) OLADELE AKADIRI
(2018)LCN/12390(CA)
In The Court of Appeal of Nigeria
On Thursday, the 1st day of March, 2018
CA/AK/241/2014
RATIO
COURT AND PROCEDURE: THE ESSENTIALS OF COST
“The position of the law is that costs follow events and a successful party should not be deprived of his costs unless for good reasons. SAEBY VS. OLAOGUN (1999) 10-12 SC PG 45: WORUO V. UAC LTD. (1956) 1 FSC PG 133; BIODE PHARMACEUTICAL LTD. VS. ADSELL LTD. (1986) 5 NWLR (PT.10) 70. The essence of cost is to compensate the successful party for part of the loss incurred in the litigation. Costs cannot cure all the financial loss sustained in the litigation. It is not also meant to be a bonus to the successful party. It is not also to be awarded on sentiments per Aboki, JCA in MASTER HOLDING (NIG) LTD. V. EMEKA OKEFIENA (2010) LPELR 8637: UBN LTD. VS. NWAOKOLO (1995) 4 KINGS LAW REPORT PG 919.” PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
DAMAGES: GENERAL DAMAGES
“General damages are those which the law implies in every breach and in every violation of a legal right. It is the loss that flows naturally from the Defendant’s act and its quantum need not be pleaded nor proved as it is generally presumed by law. The manner in which general damages is quantified is by relying on what would be the opinion and judgment of a reasonable person in the circumstances of the case. See NDINWA V IGBINEDION (2001) 5 NWLR (PT. 705) PG. 140. OSUJI V ISIOCHA (1989) 3 NWLR (PT. III) PG.633. ODULAJA V HADDAD (1973) 11 SC PG. 357. OMONUWA V WAHABI (1976) 4 SC PG. 37. LAR V STIRLING ASTALDI LTD. (1977) 11 – 12 SC. ACME BUILDERS LTD. V KADUNA STATE WATER BOARD (1999) 2 NWLR (PT. 590) PG. 288.” PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
TORT LAW: MEANING OF DETINUE
“The main grouse in this Issue One is that of Detinue. What is Detinue, if one may ask?
Detinue is a genre of the tort of trespass to goods and it occurs where a person fails, refuses or neglects without just cause to return or given up possession of chattel to the owner after the owner has demanded for the return of the Chattel;FBN PLC VS. SONGONUGA (2007) 3 NWLR PT. 1021 PA 230;UNIPETROL (NIG) PLC VS. BURAIMOH (2004) 15 NWLR (PT.897) PG.641.” PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
Before Their Lordships
UZO IFEYINWA NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMAJustice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYAJustice of The Court of Appeal of Nigeria
Between
ENTERPRISE BANK LIMITEDAppellant(s)
AND
CHIEF (AMBASSADOR) OLADELE AKADIRIRespondent(s)
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Ondo State delivered on the 5th day of August, 2014 by Hon. Justice C.E.T Ajama.
By a writ of summons together with a Statement of Claim dated 11th February, 2010, the Respondent as Claimant claimed against the Appellant as Defendant as follows:
(i) A declaration that the inexplicable, unexplained and arrogant holding on to the Plaintiff’s original land certificate covering his property situate at Plot 2165, Adeniran Ogunsanya Street, Surulere, Lagos amounts to the tort of detinue in law and in consequence of which the Defendant is liable in damages.
(ii) An order directing the Defendant to, within 48 hours of the judgment of this Honourable Court, return to the Plaintiff the original copy of his land certificate handed over to the Defendant to enable it process and perfect a Deed of Release in discharge of the encumbrance on same.
ALTERNATIVELY
An order directing the Defendant to pay the Plaintiff the cost of processing and obtaining another land certificate assessed at N2.5 million.
(iii) A sum of N50 million as general damages in atonement for the Defendant’s unlawful holding on to the Plaintiff’s title document, the underserved financial loss, psychosomatic malaise and trauma inflicted on the Plaintiff by the wrongful act of the Defendant.
It is the case of the Respondent that sometime in the year 2000, he instituted a suit with Suit No. AK/44/2000 against the Appellant in this case for the loss of his original land certificate covering his property situated at Plot 2165 Adeniran Ogunsanya Street, Surulere, Lagos. The said suit was settled via terms of settlement executed by the parties and was thus entered as the judgment of the Court on 28th May, 2001. He referred to Exhibit A. Later another title document was re-issued in the name of the Respondent on the same property which was once again given to the Appellant upon request for the perfection of deed of release. It is the case of the Respondent that the Appellant again lost the re-issued title document and was unable to return the title document to the Respondent upon demand.
Hence the Respondent commenced this suit leading to this appeal.
The Appellant as Defendant at the lower Court (who was also the Defendant in Suit No. AK/44/2000) on the other hand filed a Statement of Defence. In its defence, the Appellant contended that the Respondent had two separate and distinct title documents over the said property (i.e. Deed of Conveyance dated 15th May, 1964 and registered as No. 19 on page 19 in volume 1229 and Title No. M05463 dated 16th March, 1966) and both were used as security. He contended that while the deed of conveyance was used to secure a credit facility advanced by the Appellant, the Title No. M05463 was used to secure a credit facility advanced to the Respondent by Nigeria Housing Development Society Ltd (NHDS). It contended that the delay in returning the Respondent title document was due to the inability to register the deed of release in favour of the Respondent which was caused by the subsisting mortgage in favour of the Nigeria Housing Development Society Ltd. On the loss of the re-issued title document, Appellant contended that they have secured the re-issuance of the title document and thus the Respondent was not entitled to any of the reliefs claimed.
At the conclusion of the hearing, the lower Court entered judgment in favour of the Respondent and awarded the sum of 2.5 Million Naira only as cost of litigation and the sum of N10 Million only as general damages.
Dissatisfied with the judgment the Appellant filed a Notice of Appeal dated 13th July, 2014 consisting of three (3) grounds of appeal.
In accordance with the Rules of Court parties have filed their respective brief of arguments. The Appellant’s Amended brief of argument was filed on 13th June, 2017.
The Appellant in its brief formulated four issues for determination before this Court viz:-
1. Whether from the evidence adduced at the trial, there is a legal basis for the Court below to give probative value to Exhibit I being registerable instrument which was not signed and not registered or could be ascribed any importance to it.
2. Whether from the pleadings and evidence adduced at the trial by the parties, there is a legal basis for the award of Two Million, Five Hundred Thousand Naira (N2,500,000.00) only as cost of litigation in favour of Respondent.
3. Whether the award of Ten Million Naira (N10,000,000.00) only as general damages in favour of the Claimant now Respondent was right where the chattel detained was not a profit-earning chattel and whether it will not amount to double compensation to the successful party.
4. Whether the Court below was right in granting relief not sought for by the Respondent.
The Respondent on his part filed its brief on 31st March, 2017 wherein he adopted the issues formulated by the Appellant
The Appellant further filed a reply on points of law on 21st April, 2017.
ISSUE 1
Learned counsel for the Appellant submitted that the trial Court was wrong in ascribing probative value to Exhibit I.
He submitted it is trite law that a registrable instrument which has not been registered cannot be pleaded or given in evidence and if it is inadvertently tendered and received in evidence it should be discountenance and ignored. He referred to the case of AGBODIKE V ONYEKABA (2001) FWLR (Pt 62) 1915
He also submitted that it is trite law that any document with no date is of no value. He referred to the cases of TSALIBAWA V HABIBA (1991) 2 NWLR (Pt 179) 461; GLOBAL SOAP & DETERGENT LTD V NAFDAC (2011) ALL FWLR (Pt 599) 102.
It is the contention of counsel that in the instant case Exhibit I which is a deed of release by NHDS in favour of the Respondent was neither registered nor dated. He submitted that since Exhibit I was not dated and registered, the claim of the Respondent became premature.
Hence the reliance of the trial Court of Exhibit I influenced its decision in awarding the sum of Ten Million Naira as damages and the sum of Two Million, Five Hundred Thousand Naira as cost of litigation to the Respondent thereby occasioning a miscarriage of justice. He thus urged this Court to so hold.
Learned counsel for the Respondent on the other hand submitted that contrary to the arguments of the Appellant the Respondent’s claim is not predicated on the issuance/ perfection of deed of release but on the non-return of his title document by the Appellant. He went further to reproduce the relief claimed by the Respondent at the lower Court.
He contended that the issue of admissibility and non-admissibility of Exhibit I do not in any way affect the case of the Respondent which borders on detinue. He referred to the judgment of the trial judge at page 149 to 150 of the record of appeal. He thus urged this Court to resolve this issue against the Appellant.
Learned counsel for the Appellant in his reply submitted that the Respondent having not filed a cross appeal and his issue no. 1 do not flow from the grounds of appeal formulated by the Appellant, the said issue ought to be struck. He relied on the cases of WESTERN STEEL WORKS V IRON & STEEL WORKERS (1987) 1 NWLR (Pt 49) 284; AKAD INDUSTRIES LTD V OLUBODE (2004) (Pt 862) 1; UYOETTE V IBIONO IBOM LOCAL GOVERNMENT (2003) WRN 161; KANO ILE V GLOEDE & HOFF LTD (2005) 22 NSCQR 346.
Alternatively counsel replying to the Respondent’s issue 1 contended that Respondent failed to prove the two ingredients in action for detinue i.e. there must be a demand for the returns and that it was unlawfully denied. He contended that the Appellant did not unlawfully detain the Respondent’s title document as it had not yet perfected the deed of release to remove the encumbrance on the title document.
He thus urged this Court to discountenance the argument of the Respondent on issue 1 and uphold the submission of the Appellant on this issue.
RESOLUTION OF ISSUE 1
The Appellant in this issue has hammered so much on Exhibit 1, the Deed of Release by NHDS. This document was in existence before the loan facility was granted to the Respondent. If there was no Deed of Release, upon what document did the Appellant grant his loan facility to the Respondent? During a loan transaction, the bank normally does a due diligence check to ascertain that the document used as collateral is worth it. The bank did its due diligence and found out for themselves that the former loan given to the Respondent by NHDS had been discharged hence their own grant of loan facility to the Respondent.
The Appellant cannot in all honesty claim that Exhibit 1 was not dated and registered as such it is encumbering the registration of their own Deed of Release. As a consequence has debilitated their return of the Respondent’s documents after several demands.
The main grouse in this Issue One is that of Detinue. What is Detinue, if one may ask?
Detinue is a genre of the tort of trespass to goods and it occurs where a person fails, refuses or neglects without just cause to return or given up possession of chattel to the owner after the owner has demanded for the return of the Chattel;FBN PLC VS. SONGONUGA (2007) 3 NWLR PT. 1021 PA 230;UNIPETROL (NIG) PLC VS. BURAIMOH (2004) 15 NWLR (PT.897) PG.641.
The Respondent by Exhibit F, F1, F2 and H had demanded from the appellant the return of the Respondent’s land certificate covering his property at plot 2165 Adeniran Ogunsanya Street, Surulere Lagos.
These demands to return the Respondent’s documents was negligently ignored and delayed. The document was not returned despite the consent judgment in Suit No. AK/44/2000. That is an out of Court settlement. One of the terms of settlement of that case Exhibit A was that the appellant as defendant in that case should prepare and execute a deed of release of the mortgaged property in favour of the Respondent. The terms of this settlement was filed and became the judgment of the Court on 23rd May, 2001.
A condition precedent for an action in detinue to succeed is that the plaintiff must demand for the return of the chattel. The demand, however, need not be in a particular form. It could be oral or written UNIPETROL (Nig) Plc vs. Buraimoh (supra). In this case the demands were made by letters to the appellant vide Exhibit F, F1 , F2 and H.
Thus for an action in detinue to succeed the plaintiff must have made a demand to the defendant for the return of the chattel. lf the defendant, on receipt of this notice of demand persists in keeping the chattel, he will be liable in an action for detinue KOSILE VS. FOLARIN (1989) 3 NWLR (PT. 107) PG 1.
For a plaintiff to succeed in an action in Detinue, he must establish by pleading the wrongful detention of his chattel by the defendant and the refusal by the defendant to return the chattel after demand. YASAU VS. WEMA BANK (2001) 11 WRN PG 91 where it was held:
“A claimant who has a right of action of detinue has three remedies open to him and it is up to him to decide which option of the following to take namely:
(a) claim for value of the chattel and damages for its detention the value of the chattel is as proved at the time of judgment at the trial Court and the onus is on the claimant to prove the value.
He is also to show by evidence the damage suffered by the detention (b) claim for the return of the chattel or its value as assessed and damages for its detention. This option appears to be the best form of action for if the chattel has otherwise been removed from jurisdiction or hidden away and out of the sight of the sheriff there is no alternative other than a distrait for the value of the chattel as assessed plus damages for its detention. UNIPETROL (NIG.) PLC V BURAIMOH (2004) 15 NWLR (PT. 897) 641, J. E. OSHEVIRE LTD. V TRIPOLI MOTORS (1997) 5 NWLR (PT.503) 1.
In consonance with this, the Respondent claimed in his Statement of Claim as follows:
“(i) A declaration that the inexplicable, unexplained and arrogant holding on to the Plaintiff’s original land certificate covering his property situate at Plot 2165, Adeniran Ogunsanya Street, Surulere, Lagos amounts to the tort of detinue in law and in consequence of which the Defendant is liable in damages.
(ii) An order directing the Defendant to, within 48 hours of the judgment of this Honourable Court, return to the Plaintiff the original copy of his land certificate handed over to the Defendant to enable it process and perfect a Deed of Release in discharge of the encumbrance on same.
ALTERNATIVELY
An order directing the Defendant to pay the Plaintiff the cost of processing and obtaining another land certificate assessed at N2.5 million.
(iii) A sum of N50 million as general damages in atonement for the Defendant’s unlawful holding on to the Plaintiff’s title document, the underserved financial loss, psychosomatic malaise and trauma inflicted on the Plaintiff by the wrongful act of the Defendant.”
The Respondent in the Court below proved to the satisfaction of the Court that (in his own words) that the detention of his document by the appellant is “inexplainable, inexplicable and arrogant”. The respondent had sued the appellant and obtained judgment in 2001 with the term of executing a deed of release to the Respondent. Up until the institution of this suit in 2010, the Appellant had neglected or refused to return the Appellant’s documents to him. We are now in 2018, which makes it a total of at least 18 years that the appellant has been in possession of the respondent’s documents despite several demands to it.
The Respondent has proved that the Appellant is still in possession of his document despite the many demands to return same to him. It is only upon proof of a claim in detinue that damages may be ordered but not otherwise or on presumption FBN PLC VS. SONGONUGA (SUPRA).
In the instant appeal, the Respondent in the lower Court had proved 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. NEKA BBB MANUFACTURING CO. V. EHINLANWO (1990) 7 NWLR PT. 160 PG 14.
The spurious excuses given by the Appellant that the Respondent had 2 land documents for the same property does not hold water. The important thing here is that the Respondent donated his documents. Due diligence was carried out by the appellant before the credit facility of N90, 000.00 was extended to the respondent in 1985. The respondent had finished paying this loan facility. The ideal thing is for the Appellant to return all the Respondent’s document together with a deed of release.
The failure of returning those documents is the gravamen of this matter. The appellant has without lawful excuse refused or failed to deliver up to the Respondent his land documents. I therefore hold that the Respondent is entitled to the return of his chattel, land documents of Plot 2165, Adeniran Ogunsanya Street, Surulere, Lagos. The Respondent is also to be indemnified in damages as held by the learned trial Judge. This issue is resolved against the Appellant in favour of the Respondents.
ISSUE 2
Learned counsel for the Appellant submitted that the trial Court was wrong in awarding the sum of Two Million, Five Hundred Thousands Naira as cost of litigation in favour of the Respondent. The Respondent did not claim, plead nor proved the said award. He submitted that what the Respondent actually claimed was the sum of Two Million, Five Hundred Thousands Naira for the procurement of another title which was dismissed by the trial Court because the Appellant had procured one already. He submitted that the substitution of the said sum for the procurement of title document to the cost of litigation by the trial judge was wrong. He relied on the cases of WEST AFRICAN SHIPPING AGENCY V KALLA (1978) 3 SC 21.
It is the contention of counsel that the Respondent having not claimed, pleaded nor proved the said award for cost, the finding of the trial Court on the award is perverse thereby occasioning a miscarriage of justice. He relied on SECTION 133,134 & 136 OF THE EVIDENCE ACT 2011; UDENGWU V UZUEGBU & ORS (2003) 13 NWLR (Pt 836) 136; NIGER GUARDS V NSOROH (2011) 12 NWLR (Pt 1208) 207; CIVIL DESIGN LTD v SCOA (2007) 29 NSCQR 1298; AMAECHI V INEC (2008) 10 WRN 1; NDIC V ORANU (2001) FWLR (Pt 8) 1974;
He also contended that the Respondent’s case which is founded on the tort of detinue, the trial Court is not allowed to award cost of litigation as it does not form part of the damages a Claimant (the Respondent in this case) is entitled to in his claim for detinue. He also submitted that the Appellant having given a reasonable justification for the retention of the Respondent’s title document, the trial Court was wrong in awarding cost.
He thus urged this Court to set aside the sum awarded to the Respondent as cost of litigation, as there was no evidence in support of same.
Learned counsel for the Respondent on the other hand submitted that the award of cost to a successful litigant is a consequential order which need not be claimed, pleaded nor proved. He relied on the cases of OZIGBU ENGR CO LTD V IWUAMADI (2011) ALL FWLR (Pt 553) 1975; NNPC V CLIFCO (NIG) LTD (2011) ALL FWLR (Pt 5831 1875; MAKINDE V OMAGHOMI (2011) ALL FWLR (Pt 578) 989.
He thus urged this Court to resolve this issue against the Appellant.
In his reply learned counsel for the Appellant submitted that contrary to the contention of the Respondent’s counsel the award of the sum of N2.5 Million as cost of litigation is different from the ordinary cost usually asked and awarded at the Court’s discretion upon the conclusion of a case. He submitted that the award of cost of litigation goes beyond the trial judge’s discretionary powers. It is in the category of special damages which must be specifically pleaded and proved. He referred to the case of NWAGA V REG TRUSTEES RECREATION CLUB (2004) FWLR (Pt 190) 1360.
He contended that since the Respondent had failed to plead and prove same, the award of cost of litigation by the trial Court amounts to granting a relief not sought. He referred to the case of BAMGBADE V BALOGUN (1994) 1 NWLR (PT. 323) 718.
He thus urged this Court to set aside the award of cost of litigation granted by the trial Court.
RESOLUTION OF ISSUE 2
The Appellant argued that the learned trial judge awarded a cost of N2.5m in favour of the Respondent and that this was not claimed by the Respondent. The position of the law is that costs follow events and a successful party should not be deprived of his costs unless for good reasons. SAEBY VS. OLAOGUN (1999) 10-12 SC PG 45: WORUO V. UAC LTD. (1956) 1 FSC PG 133; BIODE PHARMACEUTICAL LTD. VS. ADSELL LTD. (1986) 5 NWLR (PT.10) 70. The essence of cost is to compensate the successful party for part of the loss incurred in the litigation. Costs cannot cure all the financial loss sustained in the litigation. It is not also meant to be a bonus to the successful party. It is not also to be awarded on sentiments per Aboki, JCA in MASTER HOLDING (NIG) LTD. V. EMEKA OKEFIENA (2010) LPELR 8637: UBN LTD. VS. NWAOKOLO (1995) 4 KINGS LAW REPORT PG 919.
The Respondent has been on this journey of recovering his document since 1985 he paid off the loan he took in 1984. He instituted a case in the High Court in 2000 and got a consent judgment or settlement out of Court in 2001. Since then the Respondent had been in the tortuous journey of recovering his documents. The Respondent in his own words described the hardship endured by this seizure of his chattel thus:
“The Plaintiff says that he has suffered incalculable financial loss, psychosomatic malaise and injury to his feelings due to the unlawful holding on to his title documents by the Defendant in that:
(i) As a pensioner on meager income which can barely sustain him and his aged wife, he would have been able to raise loan facility, using his property referred to in the foregoing as collateral security, to finance his farm at his Ipesi-Akoko hometown but for the encumbrance unjustly and unlawfully clamped on his property and the non-return of the original copy of his land certificate to him.
(ii) The Plaintiff has not been able to put for sale his property in focus, which was at the last valuation worth N160million, due to the Defendant’s dereliction and non-feasance mentioned in the foregoing.
(iii) The Plaintiff has developed high blood pressure consequent upon the ill-treatment and oppression meted out to him by the Defendant.
The Plaintiff says that he would have reprocessed the issuance of another land certificate but for his inability to meet the cost of same and the bill of his Lagos based solicitor fixed at N2.4 million.”
As I said earlier costs cannot cure all the financial losses sustained, the mental agony and the ill health that ensued. I acknowledge that costs is not a bonus for the successful litigant. The cost awarded are meant to have a cushioning or palliative effect on the financial burdens of the party in victory. See REG. TRUSTEES OF IFELOJU V. KUKU (1991) 5 NWLR PT. 189 PG 65; AKINBOBOLA V PLISSON FISKO (NIG) LTD. (1991) 1 SCN PG 129; Kawu JSC however warned that:
“The award of costs is of course, always at the discretion of the Court which discretion must be exercised both judicially and judiciously. HACO LTD VS. S.M. DAPS BROWN (1973) 2 SC PG 14.
It is true that an Appellate Court can review the award of cost by the Court below. The Supreme Court in the case of LEO OKOYE V. NCFC (1991) 7 SCNJ PT. 11 PG 365 per Akpata JSC held:
“An Appeal Court has the competence to review the costs awarded in the lower or trial Court only where the appellant who was the loser in the lower Court or trial Court succeeds in his appeal. In that event, the costs awarded against him will invariably, of necessity be set aside. I am of the opinion that an appellate Court upon submission by an aggrieved party can review an award of costs where amount awarded was extremely high and extravagant or too small and paltry and does not reflect the proper or correct estimates of what a successful party should be entitled to from the circumstance of the case. However, the amount of costs awarded is not meant to unjustly enrich the winning party who also has a duty to mitigate his losses. UBN LTD V NWAOKOLO (SUPRA), AGIDIGBI V AGIDIGBI (1996) 6 SCNJ (PG. 105, AKINBOBOLA V PLISSON FISKO NIG. LTD. (SUPRA).”
The duration of this struggle to retrieve the Respondents’ documents spanned from 1985 when he finished paying his loan, to now 2018. Now a period of about 33 years. What excuse does the Appellant have for this arrogant display of negligence’ Banks are in the habit of treating their customers shabbily. This is a case in point.
The Respondent had catalogued all what he would have done had the documents been returned to him. He said he would have borrowed money to improve his farm. He would have had more expendable income to look after himself and his aged wife. More especially he had developed high blood pressure because of the unnecessary difficulties experienced by that tort of detinue of withholding his documents.
I honestly think that the award of N2.5M cost against the Appellant Bank is not extreme. I believe it is a fair cost to the Respondent who had at all times materials had briefed 3 successive law firms and the high cost of litigation. From all stated above, I agree that the N2.5M cost is adequate in the circumstance.
This Issue is resolved against the Appellant in favour of the Respondent.
ISSUE 3
Learned counsel for the Appellant submitted that the trial Court was wrong in awarding the sum of Ten Million Naira as general damages in favour of the Respondent. He pointed out three grounds in support of his argument.
They are:
1. There was no credible evidence. It is the contention of counsel that the Respondent having pleaded that he suffered financial loss and injury to his health failed to provide any evidence in support of same. He relied on the cases of SHELL BP PETROLEUM DSV CO NIG LTD V HIS HIGHNESS PERE COLE (1978) 3 SC 182: GANIYU BADMUS & ANOR V A.O. ABEGUNDE (SUPRA).
2. He submitted that the trial Court having granted the Respondent’s main claim (i.e. the return of the Respondent’s title document within 48 hours) the trial Court was wrong in awarding at the same time the sum of Ten Million Naira as general damages which is the alternative relief.
3. The award was excessive in view of the fact that
a. The title document of the Respondent was not a profit yielding chattel.
b. The trial Court failed to consider the fact that the Appellant had a reasonable justification for the retention of the Respondent’s title document.
c. The trial Court had already awarded the sum of Two Million, Five Hundred Thousand Naira only as cost of litigation to the Respondent.
d. The fact that the Appellant had already procured another title document which was marked Exhibit K.
He contended that the Appellate Court has the power to intervene on the trial Court’s exercise of discretion in the award of damages where it has been wrongly exercised.
He thus urged this Court to re-evaluate the evidence and re-assess the award of damages.
Learned counsel for the Respondent on the other hand submitted that contrary to the Appellant’s submission, a successful litigant in an action for detinue is entitled to the recovery of the detained chattel or its value and damages for detention. He referred to the case of ZENON PETROLEUM & GAS LTD V IDRIS YYA NIGERIA LTD (2006) ALL FWLR (Pt 32) 2121.
He submitted that in awarding damages the trial Court took into consideration the unchallenged evidence of the Respondent as regards his ill health and financial loss, the defiance of the Appellant against an extant Court order and the duration of the trial. He submitted that the contention of the Appellant that the Respondent is not entitled to damages because the Appellant had procured the title document and tendered it in evidence does not in itself amount to return of the same to the Respondent.
He also submitted that the award of N10 Million is not excessive when compared to the disadvantages the Respondent suffered as a result of the act or default of the Appellant.
On the issue of double compensation, counsel contended that the award of cost differ from the award of damages and thus in the instant case does not amount to double compensation. He relied on the cases of UBN PLC V CHIMAEZE (2014) 9 NWLR (Pt 1411) 166; OZIGBU ENGR CO LTD V IWUAMADI (SUPRA).
On the issue that the trial Court granted both main relief and alternative relief, it is the contention of counsel that the award of general damages was not an alternative relief. He submitted that there were only three reliefs sought by the Respondent with only relief 20 (ii) having an alternative. He referred the claims of the Respondent at page 6 of the record of appeal he also submitted the award of the N2.5 Million costs which have the same figure in the alternative relief does not constitute the grant of the alternative relief.
He thus urged this Court to resolve this issue against the Appellant.
Learned counsel for the Appellant in his reply submitted that from the pleadings of the Respondent it is clear that he has two main reliefs (i.e. 20 i & ii) and two alternative relief (i.e. 20 iii) and that the trial Court granted both the main and alternative reliefs. He therefore submitted that the award of both the main relief and the alternative relief by the trial Court render its judgment perverse thereby invoking the powers of this Court to re-evaluate and re-assess the said award. He referred to the case of OSUJI V EKEOCHA (2009) 177 LRCN 134. He thus urged this court to so hold.
RESOLUTION OF ISSUE 3
The purpose of compensation is to compensate the victim of a tort for the injury he has suffered and it seeks to put him as far as possible in the position he would have been had the tort not been committed. ANUMBA V SHOHET (1965) 2 ALL NLR PG. 183.
The Court had awarded the Respondent a total sum of N10M in general damages. The term general damages covers all losses which are not capable to exact quantification. It includes all non-financial loss. Items of general damages need not and should not be specifically pleaded, but some evidence of such damage is required. Heads of general damages are (a) pain and suffering (b) loss of amenities (c) loss of expectation of life (d ) future loss of earnings or earning capacity and (e) future expenses. OKUNEYE V LCC (193) 2 CCHCJ PG. 38.
There is really no fixed Rule by which to assess general damages. It is indeed difficult, to ascertain the total loss the Respondent had incurred by the delay in returning his documents. He himself said that he would have used his documents to obtain a loan to improve his farm for more earnings. He could not maintain himself and his wife property, so their health deteriorated. The general loss hanging over the Respondent over the many years cannot be quantified.
The Appellant is a Bank and understands what it entails for a person’s land documents to be in limbo for all these years. The Appellant couldn’t have extended the loan facilities without it. The Appellant kept the documents for all these years denying the Respondent of the use of it. The loss or use of the documents had caused the Respondent physical and mental pain as well, that cannot really be quantified.
Undoubtedly, the award of damages lies primarily within the domain of the trial Court. It discharges the function by a judicious estimation of the loss suffered by the Plaintiff. It is only where the Plaintiff has difficulty in quantifying his actual loss that he claims in general damages and, on establishing the Defendant’s liability, entitles the trial Judge to make an assessment of the quantum of damages that can be said to have been a natural or probable consequence of the breach. KUSFA V. UBC LTD. (1994) 4 SCNG PG. 1. XTOUDOS SERVICES (NIG.) LTD. V TAISEI (WA) LTD (2006) 6 SCNG PG. 300.W. A. SHIPPING AGENCY (NIG. LTD. & OWNER V KALLA(1978) 3 SC PG. 15, AGU V GENERAL OIL LTD. (2015) LPELR 24613.
General damages are those which the law implies in every breach and in every violation of a legal right. It is the loss that flows naturally from the Defendant’s act and its quantum need not be pleaded nor proved as it is generally presumed by law. The manner in which general damages is quantified is by relying on what would be the opinion and judgment of a reasonable person in the circumstances of the case. See NDINWA V IGBINEDION (2001) 5 NWLR (PT. 705) PG. 140. OSUJI V ISIOCHA (1989) 3 NWLR (PT. III) PG.633. ODULAJA V HADDAD (1973) 11 SC PG. 357. OMONUWA V WAHABI (1976) 4 SC PG. 37. LAR V STIRLING ASTALDI LTD. (1977) 11 – 12 SC. ACME BUILDERS LTD. V KADUNA STATE WATER BOARD (1999) 2 NWLR (PT. 590) PG. 288.
I dare say that the trial Judge was able to assess the general damages to award the Respondent. I do not intend to upturn it as I think the trial Judge reached his decision taking into consideration all the prevailing circumstances of this case. More especially the callous manner the Appellant had negligently held back the Respondent’s documents. It should be a wakeup call for such financial institutions to have a human face in its dealings with its customers. Holding a customer’s documents from 1985 to date is unacceptable. I leave it at that.
The Appellant is making a mistake as regards the claim and the alternatives. The trial Judge in his judgment refused the alternative claim for N2.5M, the cost of processing another land certificate. This was refused by the trial Judge.
The trial Judge awarded cost of N2.5M to the Respondent. I believe that since it is the same amount, the Appellant’s counsel mistakenly thought it was that alternative claim of the Respondent.
Having resolved this Issue 3 also against the Appellant in favour of the Respondent, the conclusion is certain.
This appeal fails. It is dismissed. I affirm the judgment of the Court below in its award of general damages of N10M and cost of litigation at N2.5M.
I also award a cost of N100,000.00 against the Appellant and in favour of the Respondent.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: Having read in draft the lead judgment just delivered by my learned brother, Uzo I. Ndukwe – Anyanwu, JCA, I am in total agreement with the well horned lead judgment.
The judgment in dentinue and consequential damages in favour of the Respondent was aptly entered upon the facts and the law applicable.
Indeed, this is an instance, where a counsel will be justified to intimate the Court that he had nothing useful to urge on behalf of his client as the facts and the law are such that he needed to throw in the towel in the interest of justice.
The endorsement of the dismissal of the appeal by me is inevitable in concurrence with the lead judgment and all the consequential orders therein decreed.
OBANDE FESTUS OGBUINYA, J.C.A.: I was afforded the opportunity to read, in draft, the leading judgment delivered by my learned brother: Uzo I. Ndukwe Anyanwu, JCA. I am in total agreement with the reasoning and conclusion in it. I, too, visit dismissal on the appeal. I abide by the consequential orders decreed in it.
Appearances:
M. A. Fadunmoye Esq.For Appellant(s)
Temitope Adedipe Esq. with him, Olufemi Ademiyan Esq. and L. C. Odogiyan Esq.For Respondent(s)
