FIDELITY BANK PLC V. KATES ASSOCIATED INDUSTRIES LTD. (2012)

FIDELITY BANK PLC V. KATES ASSOCIATED INDUSTRIES LTD.

(2012)LCN/5312(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 25th day of April, 2012

CA/E/210/2010

RATIO

TORT: MEANING AND NATURE OF DETINUE

Detinue is defined in Blacks Law Dictionary, 9th Edition at page 515 as:-

“A common law action to recover personal property wrongfully taken or withheld by another”.

A party seeking a claim in Detinue is required to show that he has an immediate right to the possession of the goods or chattel against a person who is in actual possession of them and who upon proper demand, fails or refuses to deliver up possession without lawful excuse. See OGUNSOLA V. IBIYEBII (2008) ALL FWLR (PT 400) 731 at 744-745: J.E. OSHEVIRE LIMITED V. TRIPOLI MOTORS (1997) 5 NWLR (PT 503) 1 SC; OWENA BANK PLC V. OLATUNJI (2002) 12 NWLR (PT 781) 259; UDECHUKWU V. OKWUKA (1956) SCNLR 189 and JULIUS BERGER NIGERIA PLC V. OMOGUI (2001) 6 S.C. 185.

In other words, for a plaintiff to succeed in an action in detinue, he must establish by his pleadings, the wrongful detention of his chattel by the defendant and the refusal by the said defendant to return the chattel after demand. See YISAU V. WEMA BANK (2001) 11 WRN 91.

Furthermore, in UNIPETROL (NIG) PLC V. BURAIMOH (2004) 15 NWLR (PT 897) 641 at…. It was held that:-

“For a claimant to sustain an action for the tort of detinue, he has the burden to prove that: (a) he is the owner of the chattel; (b) he has an immediate right to possession of the chattel; (c) the defendant was in actual possession of the chattel; (d) the claimant has made a proper demand on the defendant to deliver up the chattel to him; (e) the defendant has without lawful excuse refused or failed to deliver up the chattel to the claimant”. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A

CONTRACT: PRINCIPLE GUIDING THE INTERPRETATION OF CONTENT OF A DOCUMENT

Where the content of a document is clear, the operative words in it should be given their simple and ordinary grammatical meaning and ought not be clothed with a totally different colour. See UNION BANK OF NIGERIA LTD V. OZIGI (1994) 3 NWLR (PT 333) 385.

A party to an agreement is bound by the terms therein. The only function of the court is to interpret the said agreement as couched and if its provisions are clear and there is nothing to sway the court into embarking on a construction different from that which the words of the provision imports, the words will prevail. See UBA LTD V. PENNY MART LTD (1992) 5 NWLR (PT 240) 228: NATIONAL SALT CO. OF (NIG) LTD V. PALMER (1992) 1 NWLR (PT 218) 422. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A

TORT: REMEDIES FOR DETINUE

In OSHEVIRE LTD. V. TRIPOLI MOTORS (1997) 5 NWLR (PT. 503). It was the decision of the Supreme court that:-

“A plaintiff who has a right of action in detinue has three remedies open to him to decide which option of the following to take:-

(a) Claim for value of the chattel and damages for it’s detention;

(b) Claim for the return of the chattel and damages for it’s detention;

(c) Claim for the return of the chattel or its value as assessed, and damages for it’s detention.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A

DAMAGES: HOW DAMAGES ARE ASSESSED IN AN ACTION FOR DETINUE

In ODUMOSU V. AFRICAN CONTINENTAL BANK LTD (1976) 11 S.C. (REPRINT) 32. The Supreme Court per IDIGBE JSC held inter alia that:-

“In those cases therefore, the subject matter of the action for detinue have not as such been profit earning, it is extremely difficult to assess the damage to the plaintiff (see Somervell & Romer LJJ in the Medianna (1900) AC 113 at 246, 252 and 257). However, the plaintiff is entitled to damage for loss arising from his inability to make use of the specific goods; and this can be recovered under either head of damage – general or special”. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A

JUSTICES

ABUBAKAR JEGA ABDUL-KADIR (PJ) Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

FIDELITY BANK PLC – Appellant(s)

AND

KATES ASSOCIATED INDUSTRIES LTD. – Respondent(s)

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Anambra State holden at the Onitsha Judicial Division (Coram: Hon. Justice V.N. Umeh) delivered on the 21st day of June 2010, wherein the said court granted reliefs in favour of the plaintiff.

The appellant herein (Fidelity Bank Plc) was the defendant in the trial court while the Respondent (Kates Associated Industries Ltd) was the plaintiff.

The Respondent which was a customer of the appellant applied for and was granted a N10 million credit facility which was approved as follows, Vide an offer letter dated 28/11/1996.

(i) N5, 000,000 Import Finance Facility

(ii) N5, 000,000 Overdraft facility

Other term stipulated therein is that the tenor of the Facility would be for one year on revolving interest basis at 21% interest per annum.

The following were agreed as collaterals for the said facility:-

(i) Original shipping documents to be consigned to the appellant.

(ii) Comprehensive insurance cover on the Goods to be undertaken by a reputable insurance out fit.

(iii) 30% minimum equity contribution.

(iv) Legal Mortgage over the Respondent’s property in Onitsha Subsequently, by a letter dated 14/2/98, the Respondent requested the appellant to endorse and release the Shipping documents to it. In the same letter, the Respondent also pledged the title documents of a property located in Port Harcourt and belonging to one Dr. T.C. Osanakpo as additional collateral for the facility, by which time the sum of N4, 319,036,40 was still outstanding as per the Import Finance Facility. The appellant did accept the additional collateral and released the shipping documents to the Respondent.

After series of pleas to the Appellant (vide letters) over failures to meet up with her payment obligations, the Respondent eventually made various payments, to clear the sum of N4, 319,036.40. Thereafter, the Respondent wrote a number of letters to the appellant demanding for the release to it, of the title documents for the property belonging to Dr. T.C. Osanakpo situated at Port Harcourt.

The appellant did not accede to the request and in its eventual response through a letter informed the Respondent that it will not release the said title documents until all out standings under the Import finance facility and the Overdraft facility have been liquidated.

Consequently, the Respondent on the 23/11/2011 commenced an action against the appellant at the Onitsha Judicial Division of the High Court of Anambra State wherein it claimed the following reliefs as per the amended statement of claim dated and filed on 30/5/2002.

21. WHEREFORE the Plaintiff claims from the Defendant as follows:-

i. An order that the Defendant shall forthwith release the title document registered as No. 68 at Page 68 in Volume 129 of the Land Registry in the office at Port Harcourt which the Plaintiff handed over to the Defendant.

ii. An order that the defendant shall forthwith inform the Plaintiff the balance now outstanding due and payable with respect to the transaction initiated by the defendant’s offer letter dated the November 28, 1996.

iii. N500, 000.000 (five Hundred Million Naira) being general damages for detinue, the Defendant having unduly detained the document the Plaintiff would have utilized in furtherance of other business ventures.

iii (a) And order that Plaintiff is only liable to pay interest accruable from the transaction up to June, 2001 and no more.

iv. An order of injunction restraining the Defendant its servants and agents from further deposing any money which is not the Plaintiff’s money in the Plaintiff’s account in the defendant Bank as the Plaintiff remains the Defendant’s customer.

v. An order of injunction restraining the Defendant, its servants, agents, privies and otherwise from selling or in any manner alienating by auction or otherwise the property registered as No. 68 at page 68 in Volume 129 of the Lands Registry in the office at Port Harcourt.

vi. An order of injunction restraining the Defendant, its servants, agents, privies and otherwise from selling or in any manner alienating by auction or otherwise the property registered as No. 5 at Page 5 in Volume 1354 of the lands Registry in the office at Enugu (now at Awka).

While the Suit was pending in the trial court, the Respondent paid to the appellant the sum of N3, 000,000 as agreed by the parties to be the outstanding amount in the whole credit facility. In response, the appellant released to the Respondent, all the title documents used as collateral in the transactions. The reliefs contained at paragraph 21 (iii) (a) and vi of the statement of claim were also abandoned being no longer necessary.

The Suit however continued till conclusion wherein the trial judge entered judgment in favour of the Respondent as follows:-

1. The Plaintiff is entitled to the sum of N150 million only being general damages for detinue, the defendant having unduly detained the document the plaintiff would have utilized in furtherance of other business ventures.

2. The Plaintiff is only liable to pay interest accruable from the transaction up to June 2000 and no more indebted to the Defendant having fully paid and collected their titled documents.

3. Compensatory cost of N20, 000.

The appellant was not satisfied with the said judgment and consequently filed a Notice of Appeal dated and filed on 22/6/2010. It contains five grounds of appeal which shorn of their particulars reads as follows:-

GROUND 1

The learned trial judge erred in law when she found and held that the appellant is liable in detinue when the Respondent did not prove at the trial that the alleged detention of the document by the defendant was wrongful.

GROUND 2

The learned trial judge erred in law when she found for the Respondent and held the appellant liable in damages in detinue when there was no primary claim by the appellant for return of the document allegedly detained by the appellant.

GROUND 3

The learned trial judge erred in law when she found and held the appellant liable in damages in detinue when the Respondent did not specifically plead and strictly prove what damages it suffered as a result of the alleged detention of the document by the appellant.

GROUND 4

The learned trial judge erred in law when she awarded the sum of N250, 000,000 (Two hundred and fifty million Naira) as general damages against the appellant.

GROUND 5

The judgment of court is against the weight of evidence.”

In accordance with the rules of this court the parties filed and exchanged briefs of argument.

The appellant’s brief of argument dated and filed on 25/11/10 was settled by Anthony A. Ani Esq. The Respondent’s brief of argument settled by Nnamdi Ibegbu SAN, was dated and filed on 25/3/11.

In the appellant’s brief of argument four issues where distilled for determination as follows:-

1. Whether the learned trial judge was right in holding the appellant liable in detiune when the Respondent did not prove at the trial that the alleged detention of it’s document by the appellant was wrongful?

2. Whether the learned trial judge was right in finding and holding the appellant liable in damages in detinue when the respondent did not make a claim for the return of the document allegedly detained by the appellant or it’s value?

3. Whether the lower court was right in awarding the sum of N250 million, or any sum at all as damages against the appellant when the Respondent did not plead and specifically prove the damages it suffered as a result of the alleged detention of it’s documents by the appellant?

4. Whether the learned trial judge proceeded on the right principles of law in awarding the sum of N250 million as general damages against the appellant in an action for detinue, and whether same is not excessive, unreasonable and punitive in the circumstances?

For the Respondent, three issues were formulated for determination as follows:-

1. Whether the respondent had not discharged the outstanding sum on the import Finance facility at the time of making it’s demands for the release of the document registered as No. 68 at page 68 in Volume 129 of the Lands Registry at the office in Port Harcourt, to justify that the detention of the document was wrongful?

2. Whether the Respondent was entitled to the release of the document registered as No. 68 at page 68 in Volume 129 of the Land registry in the office at Port Harcourt given to it by the Appellant upon the payment of the outstanding sum of the N5 million Import Finance Facility, or not, and was there no primary claim by the respondent for return of the document detained by the Appellant?

3. Whether in the circumstances of this case the respondent is entitled to damages for wrongful detention of the said document or not; and is the respondent not entitled to the sum of N250, 000,000 (Two hundred and fifty million Naira) general damages awarded the company in detinue?

The issues as formulated by the parties are similar in con though varies in their mode of couching. I am however inclined to adopt the four issues raised in the appellant’s brief in my consideration of this appeal. ISSUE No. I On this, the learned counsel for the appellant after giving the history of the transaction between the parties submitted inter alia, that the demand by the Respondent for the release of the title documents when all outstanding on the credit facilities had not been liquidated was unreasonable. He referred to the case of OWENA BANK PLC V. OLATUNJI (2002) 13 NWLR (PT 731) 259 at 326 on what the plaintiff need to prove in an action for detinue.

Learned counsel contended that the respondent failed to prove that it made a proper demand on the appellant to deliver up the chattel to it and that the appellant without lawful excuse refused or failed to do so. In other words there is no proof that demand was made for the return of the title documents and it was wrongfully detained as held in SALIBA V. YASSIN (2002) 4 NWLR (PT 756) 1.

He added that the content of Exhibit ‘A’ is clear and unambiguous in showing that the credit facilities i.e. (Import finance facility and Overdraft facility) are in the same singular transaction because N10 million was approved and given to the Respondent by the appellant for the Import finance facility and overdraft facility and there is nothing in Exhibit ‘A’ to show that there is a distinction between the collaterals for the Import finance facility and the overdraft facility.

Learned counsel further submitted that the trial judge made a wrong conclusion when she held in her judgment at page 239 of the Record that the document in respect of Port Harcourt property “Forms a separate agreement and as such should be treated separately. He added that this is so because Exhibit ‘E’ clearly shows that it was pledged as additional collateral for the facility advanced by the appellant to the respondent, the latter having sought the release of the original shipping documents to it.

Citing ODUA INVESTMENT LTD V. TALABI (1997) 7 SCNJ 600 he submitted that it is a rule of interpretation that where the wordings of a document is clear and unambiguous, effect must be given to the clear intentions of parties to the document.

Consequently, he contended that the letters of demand written by the Respondent, (i.e. Exhibit ‘L’, ‘M’ and ‘N’) for the release of the title document when the outstanding balance on the N10 million facility was yet to be liquidated was an improper demand on the appellant to deliver up the chattel. But that the appellant properly released the documents to the Respondent in 2003 as soon as the respondent paid the full and final outstanding balance of N3 million as shown in Exhibit ‘T’.

For the Respondent it was contended by the learned senior counsel that the appellant failed woefully to prove hat the respondent had not liquidated the amount due or that any amount was still outstanding under the Import finance facility at the time the respondent demanded for the realease of the certificate of occupancy of the Port Harcourt property of Dr. T.C. Osanakpo. He added that the only way to prove the assertion of the appellant that the Respondent did not liquidate the outstanding amount at the time of making its demand would have been by tendering in evidence the Bank statement of account of the respondent which is in the appellant’s custody.

This is so he added, because of the evidence of the DWI who admitted under cross examination that all the transactions culminating in this suit were reflected by the appellant in the statement of account of the Respondent with the appellant.

Learned senior counsel further contended that the appellant’s failure to produce the record is evidence that the record if produced will be unfavourable to the appellant having regard to the provisions of Section 149 (d) of the Evidence Act.

Learned senior counsel also referred to the payment made by the respondent to the appellant through a cheque dated 30/3/99 as shown in Exhibit K. This was done before the Respondent started demanding for the release of the certificate of occupancy. He added that the respondent had before the said demand liquidated the full sum under the Import finance facility which comprised only half of the entire facilities of N10 million.

He further submitted that the appellant never denied that the respondent had cleared the amount due under the import finance facility before the demand for the certificate of occupancy but only says that the respondent is entitled to the release of same only upon the liquidation of the entire amount due under both the import finance facility and the overdraft facility.

Detinue is defined in Blacks Law Dictionary, 9th Edition at page 515 as:-

“A common law action to recover personal property wrongfully taken or withheld by another”.

Furthermore, in UNIPETROL (NIG) PLC V. BURAIMOH (2004) 15 NWLR (PT 897) 641 at…. It was held that:-

In the instant case, the respondent’s stance is that two distinct facilities were granted to it by the appellant. One is the Import finance facility while the other is the overdraft facility and that the Respondent had discharged the outstanding amount owed on the Import finance facility at the time it made it’s demands for the release of the certificate of occupancy registered as No. 68 at page 68 in Volume 129 of the Lands Registry in the office at Port Harcourt. (That is Exhibit ‘G’.) It is the failure of the Appellant to deliver up possession of the said title document that necessitated this action in detinue.

For the Appellant, it is true that the Respondent made demands for the release of the said document. But it informed the Respondent in clear terms through a letter dated 19/10/99 that it’s request for the release of the title documents to Port Harcourt property would not be entertained as at then and that the appellant will be willing to release same once all outstanding sum under both facilities granted the Respondent are liquidated and this it fulfilled when the said outstanding was liquidated.

To my mind, the issue in contention between the parties in this regard is a narrow but direct one and that is whether the appellant granted the Respondent two distinct facilities with distinct considerations and collaterals clear enough as to create two separate transactions?

A valuable and indispensable road map for the true intent of the parties and a proper resolution of the issue is found in Exhibit A, A1 and A2 and Exhibit E. For purposes of clarity and proper appreciation, I herein below reproduce the relevant portions of the said Exhibits.

Exhibit A1 and A2 which is a three page letter signed by the appellant and addressed to the Respondent reads in the first page tagged (Exhibit ‘A’) as follows:-

The Managing Director,

Kates Associated Industries Nigeria Ltd.,

Plot IN/76, Niger Bridge Industrial Layout,

Onitsha.

Attention: Mr. Ikem Osanakpo

Dear Sir,

OFFER OF CREDIT FACILITY

We are pleased to advise that Fidelity Union Merchant Bank Limited has in principle approved a – N10, 000,000 (Ten million Naira only) multiple credit Option facility in favour of Kates Associated Industries Nigeria Limited under the following terms and conditions:-

Lender: Fidelity Union Merchant Bank Limited (“the Bank”).

Borrower: Kates Associated Industries Limited (“Borrower”).

Facility: N10 million available as follows:-

(i) N5m Import Finance Facility

(ii) N5m Overdraft facility

Tenor: Facility will be available for one (1) year, on a revolving basis.

Purpose: (i) To finance the purchase of foreign exchange for Imports.

(ii) For working Capital/Support.

Interest Rate: At 21% p.a., subject to changes by the central Bank of Nigeria/other regulatory authorities.

Collateral/

Support: (1a) Original Shipping documents to be consigned to the Bank

(b) Comprehensive insurance cover on the goods to be undertaken by a reputable insurance outfit.

(ii) Legal Mortgage over company’s property in Onitsha.

From a careful and dispassionate perusal of the above reproduced content of Exhibit A, what is deducible is that the Respondent was offered a N10 million loan to cover two facilities, to wit:-

(i) N5 million Import Finance Facility to purchase foreign exchange for import, and

(ii) N5 million for overdraft for working capital support.

This was made clear under the head ‘Facility’ where the two were itemized as (i) and (ii).

The same roman numerics were used under the head ‘Purpose’ as follows:-

(i) To finance the purchase of foreign exchange for Imports.

(ii) For working capital support.

Further convincing clarification was made under the head “collateral/support” to show that each of the two facilities has its own specific collateral as required by the appellant. While for the Import Finance Facility the Respondent was expected to provide:-

(a) Original shipping documents to be consigned to the bank.

(b) Comprehensive insurance cover on the goods to be undertaken by reputable insurance out fit.

The collateral for the overdraft facility was required to be:-

(ii) legal Mortgage over company’s property in Onitsha.

What is more, in page 2 of the letter of offer which is tagged Exhibit A1, the appellant did not conceal that there is a distinction between the two facilities when it stated clearly as follows:-

CONDITIONS PRECEDENT TO DRAWDOWN

1………..

2………..

3. For the Import Finance Facility, receipt of Borrower’s 30% minimum equity contribution of L.C. value.

4. For the overdraft, receipt of all necessary documents for the perfection of a Legal Mortgage over company’s property.

From the above, it seems to me therefore that from the onset different and separate collaterals were attached to each of the two facilities, and that was the basis on which the Respondent acted and accepted the offer made by the appellant. The transaction was duly formalized and until subsequent events turned it into a sour sauce. Where the content of a document is clear, the operative words in it should be given their simple and ordinary grammatical meaning and ought not be clothed with a totally different colour. See UNION BANK OF NIGERIA LTD V. OZIGI (1994) 3 NWLR (PT 333) 385.

In the instant case, it is quite clear from the content of Exhibit ‘A’ that the appellant’s demanded for two separate collaterals for the two facilities of N5 million each and which the Respondent complied with hence the release of funds to it by the appellant.

Furthermore, this state of affairs was in the mind of the Respondent when it wrote Exhibit ‘E’ to the appellants upon the arrival of the imported goods. The said Exhibit ‘E’ shorn of it’s headings reads thus:-

The Manager,

Fidelity Union Merchant Bank Ltd.,

37 New Market Road,

Onitsha.

Dear Sir,

(i) Letter of Credit in Favour of Organica Ltd

Amount: $53,347.50

Form M. No: BA 982001

(ii) Letter of Credit in Favour of Caffrey Sanders (Int.) Ltd.

Amount: E11, 000.26

Form M. No. BA 982007

The consignment covered by the letters of credit described above will be arriving Nigerian Ports shortly.

By this letter we are requesting that the shipping documents be endorsed and released to us as soon as they are available. We will repay our obligation on the transactions within Sixty days of receipt of the shipping documents.

The request for deferred payment became necessary because of extreme cash flow problem. The receipt and utilization of the raw materials covered by the letters of credit will help to ease our cash flow problem.

In order to provide you with some comfort for the release of the documents we hereby pledge additional collateral, photocopy of certificate of occupancy in enclosed.

The property which belongs to one of our directors, Dr. T.C. Osanakpo, is situated at Port Harcourt, GRA. It comprises of two fully detached units of duplex.

We look forward to your early approval of this request.

Thank you.

Yours faithfully

For: Kate Associated Industries Limited

Signed: Ikem Osanakpo

Managing Director.

The content of Exhibit ‘E’ as reproduced above clearly shows that the respondent never intended to provide additional collateral for the two facilities totaling N10 million, but for the Import Finance Facility of N5 million for which the “Original Shipping document” were demanded as part of the collateral and which was requested for by the respondent in paragraph two of Exhibit ‘E’ and due to it’s inability to meet up with the financial aspect of the transaction, pledged Exhibit ‘G’ (certificate of occupancy) as additional collateral which in it’s words was to provide the appellant with some comfort for the release of the shipping documents pending payment of its financial obligation on the facility by the Respondent. Exhibit ‘H’ which is a letter of ‘caveat’ to the Registrar of Deeds, Lands Registry, Port Harcourt provides credence to the correct state of affairs when it was stated in the said caveat that it was “in favour of FIDELITY UNION MERCHANT BANK LIMITED for the extension of Credit Facilities (Import Finance Facilities) to KATES ASSOCIATE INDUSTRIES LIMITED”.

The belief in the aforesaid nature of the transaction as per Exhibit ‘A’ prompted the Respondent to request for the Release of Exhibit ‘G’. The first request was made to the appellant vide a letter dated 29/3/99 wherein in paragraph 3 it reads thus:-

“Finally, we request that you release the certificate of occupancy in the name of our director, Dr. T.C. Osanakpo as soon as the last post dated cheque of N269, 036.40 is cleared. If you recall, this C of O was given in lieu of the payment of N4, 319,036 emanating from L.C. No. FLMB 98/ILC0042. The payment of the cheque of N269, 036.40 is the final payment on that obligation”.

Exhibit ‘M’ is the second letter date 22/6/99 to the appellants for the release of the said C. Ojo and paragraphs three and four therein reads:-

“You will recall that the property was pledged in lieu of cash of N4, 319,036.40 arising from LK No. FUMB 98/ILC0005. The N4, 319,036.40 had been liquidated since end of March 1999.

Please take this letter as a reminder for the release of the certificate of occupancy”.

Exhibit N dated 10/9/99 was a follow up to Exhibit M wherein at paragraph 3 the respondent stated thus:-

“Your reason for retention of this document far much longer time than is necessary are unknown to us. The title document was applied for a specific purpose and we discharge our obligation to you on the transaction since March 1999”.

The appellants only subsequent response to all the requests came in a letter to the Respondent dated 19/10/99 and it reads:-

RE RELEASE OF TITLE DOCUMENTS

“Your letter dated September 10, 1999, on the above subject matter refers.

Please be informed that your request for the release of title documents to property at GRA Port Harcourt cannot be entertained. We shall however be willing to release same once all out standings under your IFF/OD facility with us have been liquidated.

Thank you.

For: Fidelity Bank Plc.

Signed:

Chukwudi Agunwah

Credit Marketing

Exhibits ‘S’ and “T” further showed that the appellant retained custody of Exhibit ‘G’ until 26/5/2003 but not before the respondent cleared all the out standings in both the Import Finance Facility and the overdraft facility as demanded by the appellant as a condition for the release of Exhibit ‘G’. Now having found that there is a distinction between the two facilities. I am of the firm view that the appellant ought to have released Exhibit ‘G’ to the Respondent upon request as at March 1999 after it had cleared it’s obligation under the Import Finance Facility. I find therefore that the detention of the said document from March 1999 to May 2003 was wrongful and consequently hold that the trial judge was right in finding and holding that the appellant was liable in detinue. Issue No. 1 is therefore resolved against the appellant.

On issue No. 2, it was the contention of the learned counsel for the appellant that as soon as the Respondent made full and final payment for the outstanding sums and the documents returned to him, this extinguished the Respondent’s cause of action, for detinue if any. Therefore he added, it was wrong for the trial court to award the sum of N250 million as general damages for detinue against the appellants.

In OSHEVIRE LTD. V. TRIPOLI MOTORS (1997) 5 NWLR (PT. 503). It was the decision of the Supreme court that:-

“A plaintiff who has a right of action in detinue has three remedies open to him to decide which option of the following to take:-

(a) Claim for value of the chattel and damages for it’s detention;

(b) Claim for the return of the chattel and damages for it’s detention;

It is also trite law that for a plaintiff to succeed in an action for detinue, he must establish by pleadings the wrongful detention of his chattel by the defendant and the refusal by the defendant to return the chattel after demand.

See YISAU V. WEMA BANK PLC (2001) 11 WRN 91.

The Respondent as plaintiff in the trial court had in it’s statement of claim dated and filed on 23/11/2001 claimed inter alia the following reliefs in paragraph 21 (i) (ii) (iii).

(i) An order that the defendant shall forthwith release the title document registered as No. 68 at page 68 in volume 129 of the Land Registry in the office at Port Harcourt which the plaintiff handed over to the defendant.

(ii) An order that the defendant shall forthwith inform the plaintiff the balance now outstanding due and payable with respect to the transaction initiated by the defendant’s after letter dated the November 28, 1996.

(iii) N500, 000,000) Five hundred million naira) being general damages for detinue the defendant having unduly detained the document the plaintiff would have utilized in furtherance of other business ventures.

However, in the Amended Statement of claim dated 10/10/2007 and filed on 15/10/2007 paragraphs 21(i) (ii) were deleted. This was sequel to release of the document (subject matter of the detinue) by the appellant to the Respondent vide a letter dated 26/5/2003, Exhibit ‘S’. The release was made pursuant to Exhibit ‘T’ wherein the Respondent further requested for such, having paid up all the money owed as demanded by the appellant.

However, this court having resolved issue No. 1 against the appellant by holding that the refusal to release the document Exhibit ‘G’ to the Respondent from March 1999 when a demand was first made till May 2003 when it was eventually released was wrongful and actionable in detinue. It follows that the Respondent was right to have instituted the action in 2001. To my mind, the fact that the document was released in 2003 does not extinguish the right of the Respondent to continue to conclusion the action in detinue against the appellant because the injury caused by the wrongful detention of the document from 1999 to 2003 must be addressed at least by way of damages. It was equally proper for the Respondent to have sought the amendment of the statement of claim in 2007 to delete the relief for the return of the document same having been released in 2003, this is my humble view is rational as it will be out of place for a party to seek a relief in vacuo bearing in mind that the court does not make an order in vain.

In Osheovire’s case cited supra, it was established that a plaintiff in an action in detinue has three Remedies. He can claim for the return of the chattel or its value. He can claim for the value of the chattel; or claim for the return of the chattel simpliciter but in all the three remedies he is in addition, entitled to claim for damages for detention. See also JULIUS BERGER V. OMOGUI (2001) 6 S.C. 185 and ORAIA V. PIEDMONT (NIG) LTD (1995) 2 NWLR (PT 379) 516. It seems to me therefore that the issues of damages for detention is not inextricably tied to the return of the chattel or it’s value but the fact that there was a wrongful detention of the chattel entitles a plaintiff to seek for damages for such inconveniences or injuries caused by such detention. In the instant case the fact that the appellant released the document to the Respondent after four years of wrongful detention cannot exonerate it from the Respondent’s claim for damages. See ZENON PETROLEUM & GAS LTD V. IDRISIYYA (NIG) LTD (2000) ALL FWLR (PT 312) 2121.

Issue No. 2 is therefore resolved against the appellant.

ISSUE NO.3

Dwelling on this issue, learned counsel for the appellant submitted that the tort of detinue does not belong to the class of tort actionable per se and as such damages are not awarded to a plaintiff as a matter of course upon proof that his chattel was detained. He must prove that he did actually suffer damages as a result of the wrongful detention of his chattel. Learned counsel added that the measure of damages for goods in a case of detinue is its value or the cost of it’s replacement at the time of recovery, while the measure for the loss of use is the actual loss suffered by the plaintiff. He cited UNIPETROL (NIG) PLC V. BURAIMOH (2004) 15 NWLR (pt 897) 641.

He further contended that assuming the respondent was entitled to damages for loss of use of the title documents to the Port Harcourt property, it has neither by his pleadings nor evidence proved the actual loss it suffered except the anticipation that it would have employed it to raise funds from which it would have made profit. He also relied on Z.P. INDUSTRY LTD V. SAMOTECH LTD (2007) 10 NWLR (PT 1060) 315 and X.S. (NIG) LTD V. THAISE 1 (WA) LTD (2006) 15 NWLR (PT 1003) 533 to contend that loss of profit is a specie of special damages which the law requires must be pleaded specifically and proved strictly by evidence of particular losses which are known and accordingly measured before the trial.

I am in agreement with and do respect the above cited authorities as regards the type of damages that the law requires to be specifically pleaded and proved. I however find it difficult to classify the respondent’s claim for damages as falling under the category as described by learned counsel for the appellant.

The learned trial judge properly addressed this issue in his judgment at pages 247 to 248 of the record as follows:-

“In an action in detinue all that the plaintiff need to prove is wrongful detention of his chattel by the defendant after demand and refusal of the return of his chattel in the statement of claim. See U.B.A. LTD V. ADEMUYIWA (1999) 11 NWLR (PT 62) page 570 at page 589 PARAS F-H. This the plaintiff has successfully shown both in his amended statement of claim in paragraphs 13, 14, 15, 16, 18, and 99, statement on oath paragraph 22 and Exhibit R admitted. There is no claim for special damages, so once wrongful detention after demand is proved, as in the instant case, the plaintiff is entitled to damages for unlawful detention. See the case of KOSILE V. FOLARIN (1989) 3 NWLR (PT 107) page 1 at page 10 PARA C.

P.A. OGUIGO & SONS LTD V. C.O.P (1991) 3 NWLR (pt 177) p 46 at 63 PARAS C – D.

The plaintiff has shown by its evidence that it could have utilized the document to raise funds for the furtherance of its business ventures if the defendant had not wrongfully detained same. It is to be noted that the evidence of the PWI in this regard was not contradicted by the defendant and the court ought therefore to accept and make use of same”.

I am in total agreement with the finding of the learned trial judge. In ODUMOSU V. AFRICAN CONTINENTAL BANK LTD (1976) 11 S.C. (REPRINT) 32. The Supreme Court per IDIGBE JSC held inter alia that:-

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. As such a plaintiff may sue for the return of the chattel; the value of the chattel as assessed; or for the return of the chattel or its value as assessed and in addition claim damages for its detention in each of the options he chooses to pursue.

See JULIUS BERGER V. OMOGUI (2001) 6 SC 185; GENERAL AND FINANCE FACILITIES LTD V. COOKS CARS (ROMFORD) LTD (1963) NWLR 314: C DC (NIG) LTD V. SCOA (NIG) LTD (2007) VOL. 30 WRN 81.

In the instant case the respondent’s claim as per paragraph 21 (a) of the amended statement of claim is as follows:-

(a) N500, 000,000 (Five hundred million naira) being general Damages for detiune, the Defendant having unduly detained the document the plaintiff would have utilized in furtherance of other business ventures”.

It is clear from the above that what the Respondent claimed was general damages for wrongful detention of the title documents which would have been used to further other business ventures. It is not in doubt that the title document for the Port Harcourt property has collateral value, hence the appellant held on to it until the Respondent paid all the sum of money owed as demanded by the appellant. The respondent being in business would have used the same title document to further source for funds to boost its business but for the fact that it was held unto by the appellant between 1999 and 2003. In such a situation I am of the firm view that the Respondent is entitled to general damages as claimed and the issue of strict proof does not arise and special damages which were not claimed either expressly or by implication cannot be imputed to it in the circumstance. Consequently, issue No. 3 is also resolved against the appellant.

ISSUE NO. 4

It was the contention of learned counsel for the appellant that the trial court took irrelevant factors into consideration in awarding the sum of N250, 000,000 as general damages against the appellant in an action in detinue. Especially by stating that the appellant is a rich Bank and can pay it off handedly and more over that the case would have terminated a long time ago but for the indolence of the defence.

He added that those reasons are not good enough to warrant imposing a punitive, unreasonable and excessive sum as general damages against the appellant. On whether in the circumstance this court can interfere and reduce the award, bearing in mind that it is an item of general damages, learned counsel referred to the following cases:-

FLINT V. LOVELL (1935) 1 KB 3 54 CA; DAVIES V. POWELL DUFFLYN COLLIERIES (1942) AC 601 HL; NANCE V. BRITISH COLUMBIA ELECTRIC RAILWAY (1951) A.C. 601 and GEORGE ONAGA & ORS V. MICHO & CO. (1961) 1 ALL NLR 324 or (1961) 2 SC NLR 101.

In response, learned senior counsel for the Respondent submitted hat the trial court did not simply award damages without giving reasons on how it arrived at what amounted to reasonable damages, and having given such reasons, the damages so awarded should stand. He added that the Respondent having pleaded and proved detinue, the trial court did not proceed on wrong principles of law in the assessment and award of the damages.

General damages are damages, which the law implies or presumes to have accrued from the wrong complained of. They are presumed to flow from the immediate, direct and proximate result of the wrong complained of. Consequently it behove the court in the exercise of it’s discretion in the award of general damages to calculate what sum of money that will be reasonable in the circumstances of the case.

See OSUJI V. ISIOCHA (1989) 3 NWLR (PT 111) 623. GARBA V. KUR (2003) 11 NWLR (PT 831) 280. SPDC V. KATAD (NIG) LTD (2005) ALL FWLR (PT 263) 675.

The trial court is endowed with the exercise of discretion in the award of general damages as well as Exemplary damages and the appellate court will not interfere with such award, unless:-

(a) The trial court acted under a mistake of law.

(b) The trial court acted in disregard of principles.

(d) The trial court has taken into account irrelevant matters or failed to take into account relevant matters.

(e) Where injustice will result if the appellate court does not interfere.

(f) The amount awarded is either ridiculously high that it must have been a wholly erroneous estimate of the damage.

See U.B.N. LTD V. ODUSOTE (1995) 9 NWLR (PT 421) 558; ZIKS PRESS LTD V. IKOKU 13 WACA 188; NWOBODO V. A.C.B. LTD (1998) 6 NWLR (PT 464) 658; ELF PETROLEUM (NIG) LTD V. UMAH (2000) ALL FWLR (PT 343) 1761; UMOETUK V. UNION BANK PLC (2001) FWLR (PT 81) 1849 and EBERE V. ABIOYE (2005) ALL FWLR (PT 264) 945.

In the instant case the learned trial judge in assessing the amount to be awarded to the Respondent as general Damages held as follows at page 249 of the record:

“In the main, the plaintiff is entitled to damages but not to the tune as claimed. I will instead award him the sum of N250 million (Two hundred and fifty million Naira) as the defendant is a rich bank and can pay it offhandedly. Moreover this case would have terminated a long time ago but for the indolence of the defence as noted earlier in the course of this judgment”.

From the above reproduced portion of the judgment, it seems to me that the learned trial judge applied the wrong principle of law in his consideration for the award of damages. He took into account irrelevant and unreasonable factors by suggesting, that the appellant is a rich bank and can pay the sum of N250 million “offhandedly”. The concept of justice and fairplay does not give room for discrimination between the rich and the poor. What matters in such exercise of discretion is the consideration of what is just and equitable which brings to bear the need to act judicially and judiciously. That a party to a suit is rich or impecunious does not fall within the ambit of a judicious exercise of discretion in the award of damages.

What matters is the degree of injury or wrong suffered by the claimant and this depends on the peculiar circumstance of each case but definitely not on the financial capacity of a tort feasor.

Equally of interest is the consideration that the suit at the trial court would have terminated long ago but for the indolence of the defence. This to my mind will properly fit into the assessment of cost to be awarded at the conclusion of the case and not a ground for the award of general damages for loss, wrong, or injury suffered by a claimant.

Of further interest is the amount awarded as general damages for detinue based on the wrongful detention of the Respondent’s title document.

The Respondent in the amended statement of claim asked for the sum of N500 million as general damages but the learned trial judge awarded the sum of N250 million.

As earlier stated an appellate court may intervene and alter an award of damages where it is satisfied that the trial court acted upon a wrong principle of law or where the damages awarded was based on an entirely erroneous estimate, or that the award is either manifestly too high or too low.

See A.C.B. V. APUGO (2001) 10 WRN 124; UMOETUK V. UNION BANK PLC (2001) FWLR (PT 81) 1849; ONWU V. NKA (1990 7 NWLR (PT 458) 1; ODOGWU V. A-G FEDERATION (1996) 6 NWLR (PT 456) 508.

In the instant case having agreed with the finding of the trial court that the Respondent made out a case of detinue against the appellant. I am however of the view that the sum of N250 million awarded by the trial court in favour of the Respondent for the wrongful detention of the latter’s title document is manifestly on the high side, more so when the wrong reason was given for such award. This court therefore deems it germaine to intervene and alter the award to an amount it finds reasonably justifiable to meet the justice of the case and consequently reduce the amount awarded from N250 million to N5 million.

Having resolved three of the four issues for determination against the appellant, I hold that this appeal only succeeds in part to the extent of the amount awarded as general damages.

The judgment of the trial court delivered by Hon. Justice V.N. Umeh on the 21st day of June 2010 is hereby affirmed except for the amount awarded as general damages which is hereby reduced from N250 million to N5 million (Five million Naira).

I make no order as to costs.

ABUBAKAR JEGA ABDUL-KADIR, J.C.A: I have had a preview of the judgment just delivered by my learned brother Oseji, JCA.

My learned brother has exhaustively considered the issues raised, the relevant facts and the laws applicable thereto leaving nothing useful for me to comment on without repeating what has been said. From the facts on record, the justice of the case demands the conclusion reached.

I am in complete agreement with the reasoning and conclusion contained therein; accordingly the appeal succeeds in part to the extent of the amount awarded as general damages.

I have no order as to costs.

ADAMU JAURO, J.C.A: I have had a preview of the lead judgment just delivered by my learned brother, Oseji, JCA. I am in complete agreement with the reasoning and conclusion contained therein.

For the same good reasons articulated in the lead judgment which I adopt as mine, the appeal succeeds in part to the extent of the amount awarded as general damages.

I make no order as to costs.

Appearances

Tochukwu Maduka with A. Nasiru (Mrs)For Appellant

AND

C.N. MeboFor Respondent