FLOUR MILL OF NIGERIA LIMITED v. TAJUDEEN OGUNBAYO (2014)

FLOUR MILL OF NIGERIA LIMITED v. TAJUDEEN OGUNBAYO

(2014)LCN/7567(CA)

RATIO

COURT: DUTY OF COURTS; WHETHER A COURT CAN GRANT A RELIEF NOT SOUGHT IN A STATEMENT OF CLAIM

It is trite that a court cannot grant a relief not sought in a statement of claim except for consequential orders which flows directly. In OSUJI v EKEOCHA (2009) 16 NWLR (PT 1166) 81 @ 142 the court held that; “…a court is duty bound to adjudicate between the parties on the basis of the claim formulated by them. The question of granting a relief not specifically claimed is not an issue which depends on the discretionary powers of a trial court” per. ABIMBOLA OBASEKI-ADEJUMO, J.C.A.

EQUITABLE RELIEF: THE PRINCIPLE OF UBI JUS IBI REMEDIUM

It is a general principle of great antiquity expressed in the latin maxim – ubi jus ibi remedium – that where there is a violation of right there must be a remedy. See LABODE V OTUBU [2001] 7 NWLR (PT.712) 256. I call in aid the inviolable words of ONNOGHEN JSC in the case of EZE v GOV. OF ABIA STATE [2014] 14 NWLR (Pt.1426) 192 @ 218 thus: It is under the above general principle of law that another principle was developed or emerged; that of consequential relief which is a principle that enables a court of law to grant to a party a relief incidental to the main relief(s) and which was/were not claimed by the party in question. It is designed to enable the court do justice between the parties… per. ABIMBOLA OBASEKI-ADEJUMO, J.C.A.

CLAIMS: ALTERNATIVE CLAIM; THE AWARD OF ALTERNATIVE CLAIM

Against the backdrop of the reliefs and judgment, permit me to define an alternative claim or award: It is an award that can be made instead of another. It is a separate claim and award, it is not an additional award, and otherwise it would amount to double compensation. See G. K. F. INVESTMENT v. NITEL 39 NSCQR 426 @ 460 where OGBUAGU JSC stated that where a claim is in the alternative, the court should first consider whether the principal or main claim ought to have succeeded. It is only after the court may have found that it could not for any reasons grant the principal or main claim that it would now consider the alternative claim. See also OSUJI V. EKEOCHA (supra) @ 114 per. ABIMBOLA OBASEKI-ADEJUMO, J.C.A.

TORT: DETINUE; THE TORT OF DETINUE

In NACENN NIG LTD v. B.A.P NSCQR (2011) VOL 46 @ 230. The Supreme Court while defining ‘detinue’, PER UWAIFO JSC held 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 rem in which the Plaintiff may sue for its for the value of the chattel as assessed and damages for its detention or 2) for the return of the chattel or recovery of its value as assessed and damages for its detention or 3) for the return of its chattel and damages for its detention” per. ABIMBOLA OBASEKI-ADEJUMO, J.C.A.

COURT: INTERFERENCE; WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE AWARD OF DAMAGES

It is also trite that before the appellate court can interfere with the award of damages, it must be shown that it was excessive or too small or acted on wrong principles as to make an erroneous estimate of the damages to which the plaintiff is entitled. See DINGYADI V. INEC (2010) 42 NSCQR 851 AT 868 per. ABIMBOLA OBASEKI-ADEJUMO, J.C.A.

COURT; COURTS DISCRETION; THE EXERCISE OF THE DISCRETION OF THE COURT IN THE AWARD OF DAMAGES

In OZIGBU ENGR CO LTD v IWUAMADI [2009] 16 NWLR (PT.1116) 44 @ 79, this Court held that: “In the awards of damages, the courts are endowed with an unfettered discretion to keep up with the times and economic trend in the country and most especially with prevailing fluctuating and rather obvious decline of purchasing power of the Nigerian currency i.e. the Naira.” per. ABIMBOLA OBASEKI-ADEJUMO, J.C.A.

COURT: DUTY OF COURTS; THE DUTY OF THE JUDGE TO DECIDE ACCORDING TO THE JUSTICE OF THE CASE AND WHAT IS RIGHT AND ALWAYS LEAN TOWARDS EQUITY INSTEAD OF STRICT LAW

All the courts in this land are courts of law and equity. A court of equity will not allow anybody who has violated the right of another to continue with such act unabated and get away with such wrongful acts rather it would ensure that justice is not only done but seen to be done. As Rhodes-Vivours JSC stated in EZE v. GOV. OF ABIA STATE (Supra) @ 216 that” Judges are expected at all times to decide according to the justice of the case and what is right, and always lean towards equity instead of strict law.” per. ABIMBOLA OBASEKI-ADEJUMO, J.C.A.

In The Court of Appeal of Nigeria

On Friday, the 28th day of November, 2014

ABIMBOLA OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal filed against the judgment of JUSTICE O. O. OKE of the High Court of Lagos delivered on 7th April 2003. The Respondent was an employee of the Appellant and worked as a Trailer Driver until he was relieved of his duties for failure to deliver goods handed over to him in the course of his duty. The Appellant impounded the Respondent’s Volkswagen car and subsequently, some of the goods given to the Respondent to deliver were discovered missing. The Appellant (as defendant at the Lower Court) reported the Respondent to the police. The police cleared the Respondent of the allegation and despite this, the defendant refused to pay the Respondent’s salary, refused to allow him to work neither did they release the Respondent’s car to him.

The Respondent as plaintiff at the Lower Court, by a writ of summons dated the 26th day of February 1991 instituted an action against the defendant claiming certain reliefs. Pleadings were duly filed by the parties. The plaintiff’s claims as per the further amended statement of claim dated 30th November, 1998 (at pages 117-124 of the record of appeal) as follows:

19 (i) “A Declaration that the Plaintiff is and remains an employee of the Defendant company fully entitled to his usual remunerations as well as all increments naturally accruing to him;

(ii) AN ORDER that the defendant do allow the Plaintiff access to its premises and recall him to his duties not having been suspended, terminated or dismissed;

(iii) The Plaintiff’s monthly salaries and allowances from May 1990 till the date of judgment in this suit at the rate of N320.00 and N85.00 per month being salaries and allowances respectively.

(iv) An order that the defendant do compute the difference between the salaries and allowances herein claimed and what the Plaintiff would have earned if the defendant was paying him since 1990 as determined by the various increases in salary and at allowances of officers of the plaintiff’s cadre and that whatever sums are outstanding be immediately paid to the plaintiff;

(v) A declaration that the impounding of the Plaintiff’s said Volkswagen car by the defendant at its premises is unlawful;

(vi) An order that the defendants do immediately and satisfactorily repair and renovate the plaintiff’s said car to a sound physical, mechanical and roadworthy condition and return same and the keys thereof to the Plaintiff or in lieu thereof immediately Purchase a brand new Volkswagen car for the Plaintiff.

ALTERNATIVELY:

The sum of N180,000.00 being the value of the Plaintiff’s Volkswagen car which the defendant wrongly impounded at its premises and which vehicle has been left to deteriorate since 1990.

(vii) N50.00 per day from 1st June 1990 till 31st December 1992 and thereafter N100.00 per day from 1st January 1993 till date of judgment for loss of the use by the Plaintiff of the said car by virtue of its having been wrongly impounded and detained by the defendant;

(viii) N100,000.00 (One Hundred thousand Naira) General damages”‘

Judgment was entered in favour of the Plaintiff/Respondent herein. The Defendant/Appellant being dissatisfied filed an appeal via a Notice of Appeal dated 23rd May 2003 and later obtained leave to amend the Notice of Appeal to which the Respondent had filed a preliminary objection dated and filed on 16/2/11 and a counter affidavit filed on 6/3/2012. Same was struck out and leave to amend was granted on 4/6/14.

It is pertinent to note that the Respondent also filed a separate Notice of preliminary objection dated and filed 16/2/11, along the same line as the one filed against the application to amend the notice of appeal, and further raised it in the Respondent brief of Argument at pages 5 – 7 therein, but curiously omitted to refer to it nor attempt to withdraw same. Therefore, the issues and arguments therein are struck out in its entirety.

The Appellant’s amended notice of appeal is dated and filed on 18/2/11 with six grounds in the Appellant’s brief and a Reply brief which was deemed on 25/9/2014. Four issues were formulated for determination as follows:

1. Whether having regard to the claim of the respondent, the trial Court was right to have granted the reliefs not sought?

2. Whether the Trial Court was right in granting the alternative claim of the Respondent after granting the main claim?

3. Whether the Trial judge was right in holding that all payments awarded shall be paid at the current prevailing value of the naira?

4. Whether the general damages awarded can be justified on the facts and evidence before the court.

At the trial in the Lower Court, only the Respondent called evidence.

The Respondent adopted the issues formulated by the Appellants. I shall summarize the submissions of parties herein in resolving same.

ISSUE 1

The Appellant submitted that the Respondent neither had a claim for interest on its writ or further amended claim dated 30th November, 1998 and argued that it is trite that a court does not grant to a party a relief not sought or asked for by the said party. He referred to the following cases: EKPENYONG v INYANG (1975) 2 SC 71; BAKULE v TANNEREWA (NIG) LTD [1995] 2 NWLR (PT 380) @ 725; SANDA V ADENIRAN [1998] 8 NWLR (PT 560) 167 @ 171; AJAKAIYE v IDAHAI [1994] 8 NWLR (PT 364) 504 @ 511; STEYER (NIG) LTD V. GAAMAZMA (1995) 7 NWLR (PT.407) PAGE 305 @ 347 and submitted that the trial judge is not a father xmas awarding reliefs not asked for by the parties.

Counsel further submitted that the Respondent did not ask for interest neither were facts pleaded in that respect and that the trial judge unilaterally awarded interest. He further relied thus:

In EKWUNIFE v WAYNE (WA) LIMITED (1989) 5 NWLR (PT 122) 422 @ PER NNAEMEKA-AGU (JSC) when considering the principle held as follows:

“Interest may be claimed as a right where it is contemplated by the agreement between the parties, or under a mercantile Custom or under a principle of equity such as a breach of fiduciary relationship. See LONDON CHARTHAM & DOVER RAILWAY V S. E. RAILWAY (1893) A.C. 429 @ 434. Where the interest is being claimed as a matter of right the proper practice is to claim entitlement to it on the writ and plead facts which show such an entitlement in the statement of Claim…”

Counsel also relied on the dictum of ONU JSC in HIMMA MERCHANTS LIMITED V ALIYU [1994] 5 NWLR (PT. 346) @ 676-677.

Counsel therefore urged this court to set aside the order awarding interest of 7% per annum on all payments.

Maduagwuna Esq. as counsel to the Appellant further argued that the trial judge had granted 2 month’s salary in lieu of notice and that this was also not sought and ought not to be granted. In this vein, he submitted that Respondent testified in line with his claims and failed but that the court proceeded to grant salary in lieu of notice. He contended that this was outside his prayers. He referred to OMOBORIOWO V AJASIN (1984) 1 SCNLR 108 and submitted that this court should also set aside this award coupled with expenses incurred for the loss of the use of his car from 4/5/90 until the return of same.

Counsel referred to paragraph 19(vii) of the further amended claim as follows:

“(vii) N50.00 per day from 1st June 1990 till 31st December 1992 and thereafter N100.00 per day from 1st January 1993 till date of judgment for loss of the use by the Plaintiff of the mid car by virtue of its having been wrongly impounded and detained by the defendant”

He argued that the Lower Court ought to have confined itself to this relief especially, as the defendant has failed to collect its car from the premises. He cited JERIC NIG LTD V UNION BANK OF NIG PLC [2000] 12 SC (PT 11)133 @ 152; ILONA v IDAKWO [2003] 5 SC 216 @ 234-235; UMENWELUAKU V EZEANI [1972] 5 SC 345, and urged this court to declare it a nullity.

The Respondent on the other hand, submitted that the general rule is that interest is not payable or recoverable at common law on ordinary debt in the absence of contractual obligations, expressed or implied or by business usage or statutory provision. Therefore, a party must endorse it on the writ of summons, plead it in its claim and adduce evidence thereon by credible evidence. He relied on the following: REO V NWOSU (2002) 11 WRN 28 @ 29; NATIONAL BANK OF NIGERIA LTD V SAVOL WA LTD [1994] 3 NWLR (PT 333) 435. He contended that the law on awarding interest in a matter, which interest is recoverable is rooted in the overriding principle that interest should be awarded to a plaintiff for being kept out of money which ought to have been paid to him. Counsel submitted that based on the principle enunciated in TEXACO UNLIMITED V PEDMAR LTD (2002) 45 WRN 1 @ 17; LONDON CHARLTON & DOVER RAILWAY V S. E. RAILWAY (1893) AC 429 @ 434 interest may be claimed as of right where it is contemplated by the agreement between the parties or under a mercantile, customs or under a principle of equity such as breach of fiduciary relationship. Counsel further submitted that even if it was not claimed on the writ but facts are pleaded in the claim and evidence given which show entitlement thereto; the court may, if satisfied with the evidence, award interest.

Counsel relied on the rule stated by AGBAJE JSC in the case of EKWUNIFE V WAYNE WEST AFRICAN [1989] 5 NWLR (PT.122) 422 @ PG. 454 – 455 thus:

“On the other hand, the expression in my judgment governs the word immediately following in the enactments that is to say “interest” and its rate. So in my judgment the statutory interest will apply unless the court order otherwise, that is to say, unless the court orders that interest of more or less than 10% shall be paid having regard to the circumstance brought to its notice. As such, because of what I have said earlier in this judgment that order 27, Rule 8 of the Plateau State High Court rules provides for what is in essence statutory interest on judgment debt, it is not necessary, for a beneficiary of the statutory provision to state in the endorsement of his claim on the writ or to plead in his statement of claim, in fact or the ground of his entitlement thereto”

According to the Respondent’s counsel, the Lagos State High Court Rules Cap 61 in Order 38 Rule 7 allows a judge grant interest not exceeding 7% per annum. Counsel cited NIDB V DE EASY LIFE ELECTRONICS [1999] 4 NWLR (PT 597) 8 in support of his contention.

Counsel submitted that the plaintiff made a claim for monthly salaries and allowances from May 1990, till date of judgment at the rate of N320.67 and N85.00 per month respectively, and tendered Exhibit B-Employee’s hand book- upon which the Trial Court based his finding, which an appellate court can hardly interfere except it is perverse. Counsel cited IYANDA V LANDIBA II (2002) 33 WRN 40; ODOFIN v AYOOLA (1984) 11 SC 72, OHAKANU V NELENGAGU (2002) 33 WRN 100 AT 103.

Counsel further contended that if the Appellant want to comply with the court’s order to return the car, they know what to do and asked the court to dismiss the ground of the appeal.

The Appellant’s counsel in his reply brief, reviewed cases cited by Respondent counsel and distinguished them on the ground that, in those cases there was a relief for interests which were adequately proved and were refused where no evidence was adduced. He emphasized that whilst a beneficiary of a statutory interest may not state the facts or grounds for the interest claimed, the claim for interest on the writ or statement of claim is mandatory endorsed before an award can be made thereof and that Respondent neither claimed for interest in its statement of claim nor its writ and the court should discountenance the argument of Respondent.

In resolving this issue it is important to reproduce the relevant parts of the judgment attacked and compare it side by side with the claims of the Respondent as captured earlier in this judgment

The Trial Judge in its judgment held thus:

“I hereby enter judgments in favour of the plaintiff accordingly and I make the following orders:

1. Plaintiff shall be paid his two months’ salary in lieu of notice,

2. The defendants shall pay the Plaintiff the expenses incurred for the loss of the use of his car from 4/5/90 until the defendant hands same back to plaintiff.

3. Defendants shall immediately repair and renovate the plaintiff’s car to a sound physical, mechanical and road worthy condition and return same with the keys to the defendant.

4. Defendant shall pay general damages of——– as claimed by the Defendant.

5. All payments shall be made at the current prevailing value of the Naira.

6. Defendant shall pay interest at the rate of 7% per annum on all payments above from today until same is paid

7. Defendant shall pay N10,000.00 as cost of the action….. ”

The Appellant complains of three issues under this heading, and they are as follows: the interest, two months’ salary in lieu and loss of use from 4/5/90 as reliefs not sought. It is trite that a court cannot grant a relief not sought in a statement of claim except for consequential orders which flows directly. In OSUJI v EKEOCHA (2009) 16 NWLR (PT 1166) 81 @ 142 the court held that;

“…a court is duty bound to adjudicate between the parties on the basis of the claim formulated by them. The question of granting a relief not specifically claimed is not an issue which depends on the discretionary powers of a trial court”

From a comparison on what was claimed as reliefs, it is clear that there is no claim for relief for interest simplicta, as in the award of interest of 7% per annum, on all payments from date of judgment till payment. What was awarded is a “post – judgment” interest under the Lagos State High Court Rules in Order 38 Rules 7 of 1990.The Learned Trial Judge found that the act of withholding the plaintiff’s car was unlawful and illegal thus:-

“I hold that it was totally wrong of the defendant to have impounded the plaintiff’s car and still hold unto same despite repeated demands for its release. This is an invalid behavior and I declare same to be unlawful.” At page 111 and at page 112, (it continues) ……the action of the defendant holding unto the plaintiff’s car is invalid and the defendant is liable for its action. I hold that the plaintiff is entitled to his claim for general damages. His claim for N100,000.00 was made in 1998 and justice demands that same be paid in current prevailing value, I take judicial notice of depreciation of naira over the past year”

The claim was filed in 1991 and judgment was in 2003, a period of 12 years while the incident occurred in 1990. It is therefore against this background that the trial judge considered the “litigation period” to get judgment and the decreasing power of the Naira vis a vis inflation rates. In my candid view, the learned trial judge properly invoked his powers under the rules to do justice. It is neither a contract nor a statutory claim as envisaged in the line of cases cited by the Appellant, starting with EKWUNIFE V WAYNE (supra). It is therefore not such to be pleaded but one to be made at the discretionary powers of the court. In DIAMOND BANK V P.I.C LTD (2009) NWLR (PT 1172) 71 @ 97 the court held that:

“It is not in every case that evidence has to be adduced in respect of interest claimed before interest is awarded. In certain cases, even failure to claim interest in the writ of summons or statement of claim will not preclude a successful plaintiff from praying for and being awarded interest after judgment may have been entered for an amount. This is because the general rule is that monetary judgments attract appropriate interest even where none is claimed. NIG GEN SUPERINTENDENCE CO LTD V NPA (1990) 1 NWLR (PT 129) 741”

At Page 97, OGBUAGU JSC said:

“It was held on the source of power of High Court of Lagos to award interest that Section 12 of the High Court Law of Lagos state vest power to award interest in the High Court of Lagos, The High Courts have inherent powers to make orders even if not sought, where such orders are incidental to the prayers sought in other words a plaintiff may be granted such an equitable relief as he may be entitled to even though he has not specifically asked for one.

See NDAH v AG BENDEL STATE (1976) 6 UILR (PT 11) 26.”

It is under the above general principle of law that another principle was developed or emerged; that of consequential relief which is a principle that enables a court of law to grant to a party a relief incidental to the main relief(s) and which was/were not claimed by the party in question. It is designed to enable the court do justice between the parties…

Bearing in mind that it was an invalid and unlawful act, the Respondent had been deprived of the proper use of his car and the essence of owning a car rendered useless for over 12 years in the state of abandonment to weather elements, in a probable state of hopelessness, and at the mercy of his employer i.e. the Appellant herein. The interest was to take care of the effect of the (realistic) value of the Naira at the time of judgment and payment. Today, it is an additional 11 years. If not, the judgment will be empty and on unrealistic shell.

On the whole, I am satisfied with the reasoning of the award and find that this award is proper. I resolve this issue in favour of the Respondent.

Again is the award of 2 months’ salary in lieu of notice. Having found and held that the appointment was not a dismissal but a termination, which the Appellants do not contend, the correct procedure would have been a notice of two months or equivalent salary of two months in lieu. It is trite that in an action for wrongful termination the remedy is damages in terms of what the employee would have gotten in those periods.

Therefore, the Trial Judge awarded the correct relief. Though, the Appellant contended that the court ought to have held that they failed to prove their case, it is trite that instead of striking or dismissing the claim, the correct relief shall be awarded which was what was done in this case. It does not in law amount to “granting a relief not sought.”

Lastly, is the grant of payment of expenses incurred for loss of his car from 4/5/90 until handed back to plaintiff. When this is examined against the relief in paragraph 9(vii) of the further amended claim, there would seem to be a slight difference visible therein. Though, it is effective from 4/5/90 instead of 1/6/90 and graduated expenses on loss of use and is specific along the lines of evidence adduced, it is actually a grant of the combination of Paragraph VI and VII.

The further amended Statement of Claim in paragraph 7 and 8, 10 and 11 pleaded thus:

7. “After and seizing the plaintiff’s car on 4/5/90 the Defendants officials asked him to go home…

8 “Since 4/5/90 the defendant refused to allow the Plaintiff to work”

10 “Since 4/5/90 the defendant has continued to detain the Plaintiff’s car and has denied the Plaintiff access to take the keys thereof…..”

11 “Since May 1990 till date the said vehicle has remained parked in the ….. And is exposed to all weather condition… long years has severely deteriorated the condition of the vehicle.

During evidence in chief, he testified at page 73 of the record of appeal, along the same lines that it was seized on 4/5/1990. The defence merely denied ever impounding the plaintiff’s vehicle without more and did not proffer any evidence thereon. Therefore it is not correct that this date was contrary to the case of the Respondent.

Upon a closer look, I agree with the Appellant that what was granted/awarded incorporated the expenses stated in that Sub-paragraph VII, but only against the time of judgment and continuous holding over of the vehicle for about 24 years (at the appeal stage), the life of a brand new car then would certainly be almost snuffed out, if not totally dead and out of production. Definitely the trial judge was right when she commented that the respondent who was a trailer driver as at then, in the employment of the appellant was entitled to be granted such equitable relief to meet the justice of the case. It is incidental to the prayer in relief VIII to be compensated for what he has gone through, as a result of the act of Appellant’s seizing of his Volkswagen car.

In this light, I am unable to set such conclusion aside. The loss of use of the car started from 4/5/1990 and continued till and after judgment and still continues till date going by the admission of counsel in its brief at Page 6 of the record at paragraph 4.1.18.

Therefore in line with the above reasoning the award stands having been supported by pleadings and evidence.

I resolve this issue in favour of the Respondent.

ISSUE 2

The Appellant submitted that the trial court granted the main claim and the alternative claim of the plaintiff. He relied on UBN LTD V PENNY-MART LTD (supra) @ 241, PER ADIO JCA that both the main claim and the alternative claim cannot be granted at the same time. Counsel also cited NWANGAWA V UBANI 9 (1997) 10 NWLR (Pt.525) 559.

That it is only where the main claim has not been granted, the consideration and granting of alternative claim can come in and that this court can set aside same.

The Respondent submitted that the reliefs of the plaintiff are clear and unambiguous and par 19 (vii) is an alternative claim; the other claims stand on their own. Counsel referred to the holding of the court as follows:

“The defendant shall immediately repair and renovate the plaintiff car to a sound, physical, mechanical and road worthy condition and return same with the key to the defendant”

Respondent’s Counsel submitted that the prayer in the alternative claim was not granted and the court should not disturb the judgment.

Upon a scrutiny of the reliefs, it is observed that the alternate claim is hinged on para 19(vi) which is the only alternative to para 19 (vii), which is a claim for the car -putting it to useable state while alternate claim is for the replaceable value of the car.

Para 19(vii) & (viii) is for “loss of use of vehicle and general damages for the seizure of the car” is a separate claim on its own.

It is entirely on the car issue and is an alternative claim to the (vi). The trial judge granted item (vi) in the (a) part, thereby not granting the alternative at all. I agree with Respondent’s counsel submission which is the correct position of this claim and it is in line with the law as stated.

I do not find any merit in this issue I resolve same in favour of respondent.

However, I observe from the further amended statement of claim, and from the unchallenged evidence on record on the age and state of the car which now is 24 years in the open air, it would be an empty judgment for the Respondent not to grant the alternative claim. It is an obvious reasonable fact to the ordinary man that the Volkswagen cannot be repairable and restored to the original state it was when impounded by the Appellant. This would frustrate the judgment given in favour of the Respondent. It is realistic and in the interest of justice and realistic to award the alternative claim instead pursuant to the power of this Court under Order 4 rule 4 of the Court of Appeal Rules 2011 thus:

“The sum of N180,000.00 being the value of the plaintiff’s Volkswagen car which the Appellant wrongfully impounded at its premises and which vehicle has been left to deteriorate since 1990. ”

ISSUE 3 & 4

These two issues shall be taken together,

Appellant submitted that there was no evidence adduced on the prevailing value of the Naira though pleaded in para 18 at page 122- 123 of further amended claim, but the court in its assessment granted the entire monetary claims of Appellant without reducing any. He relied on ONAGORUWA V IGP [1991] 5 NWLR (PT 193) 593 @ 650-651; ONWU V NKA [1996] 7 NWLR (PT 458) 1 @ 19. He contended that the award of the judge had no basis and meaning in law.

On the issue on damages, counsel argued that the award of N100,000 cannot be justifiable as it is excessive. Counsel submitted that the award translated to 21 years annual salary and allowances and therefore was a wrong assessment. He relied on the following cases EZEANI V. EJIDDIKE (1964) 1 ANLR 402; SPDC v TIEBO VII [1996] 4 NWLR (PT 445) 657; OZIGBU ENGR CO LTD v IWUAMADI [2009] 16 NWLR (PT.1166) 44.

Finally he asked that the award be set aside for being excessive.

Respondent submitted that the payment at current prevailing value of the Naira is not a consequential order that flowed. He referred to the following cases: ODEDEYI V. ODEDEYI (2002) 1 WRN 16 @ 166; NDIC V. SAVANNAH BANK PLC (2002) 51 WRN 19; OKEGBE v CHIKERE (2000) 12 WRN 65; FATB v. EZEGBU [1993] 6 NWLR (PT.297) 1 @ 15

On damages, Lekan Shonibare Esq., Counsel for the Respondent submitted that a host of parameters must exist before the Court of Appeal can intervene in assessment on damages. It must be satisfied that wrong principles have been applied. He relied on UMOTUK V UBN PLC (2002) 3 WRN 62, DOUGLAS V PETERSIDE [1994] 3 NWLR (PT 330) 37.

Finally he urged the court to uphold the judgment.

The claim of the Plaintiff in this issue is in two folds;

a. status of the employment

b. detinue for the refusal to release the impounded vehicle, and loss of use coupled with damages for detention.

In this case the learned trial judge took all these into account in reaching his conclusion as contained in his judgment.

In NACENN NIG LTD v. B.A.P NSCQR (2011) VOL 46 @ 230. The Supreme Court while defining ‘detinue’, PER UWAIFO JSC held that:-

The evidence led by the Respondent before the Trial Court was unchallenged. It was in that regard that the learned trial held as follows:

“It is clear from the evidence adduced the court by plaintiff in his testimony that his car was impounded by the Defendants Security Manager since 4/5/90 and despite several requests and appeal from the plaintiff, the Defendant refused to release the car, Despite a police report clearing the Plaintiff of any allegation of stealing sent to the defendant, the defendant held unto the plaintiff’s car, I hold that it was totally wrong of the Defendant to have impounded the plaintiff’s car and still hold unto same despite repeated demands for its release. This is an invalid behavior by the defendant and I declare same to be unlawful. The defendant is liable for its action, Plaintiff had told the court that he incurred expenses in transportation when his car was seized by defendant. He has satisfied the court as to his claim in that regard, I do find in favour of the plaintiff for his claim for expenses incurred in the loss of use of his car. The car had been in defendants’ custody since 4/5/90 about twelve years. The defendant is also bound to return the plaintiff’s car to him in good mechanical, physical road worthy condition,…

The third issue for determination is whether or not the Plaintiff is entitled to claim for general damages, my answer is in favour of the plaintiff having considered his testimony before this court which remained unchallenged by any testimony from the defence. Plaintiff has convinced the court from his testimony that he is entitled to be compensated for what he had gone through as a result of the action of the defendant and in seizing his car which affected his responsibility towards his family.

The action of the Defendant is holding unto plaintiffs car is invalid and Defendant is liable for its action. I hold that plaintiff is entitled to his claim for general damages. His claim for N100,000 was made in 1998 and justice demands that same be paid at current prevailing value as I take judicial notice of depreciation of naira over the past year.”

Having reproduced the relevant portions of the findings and holding of the trial judge’s judgment. It is crystal clear how the Trial Judge arrived at the prevailing value and the damages granted. Certainly considering the length of time of refusal of use of the car, the plaintiff was entitled to damages which goes with action for detinue and the figure which was granted as at time of judgment 12 years later was in my opinion a pittance and did not justify equitably the compensation (even as at then).

In OZIGBU ENGR CO LTD v IWUAMADI [2009] 16 NWLR (PT.1116) 44 @ 79, this Court held that:

“In the awards of damages, the courts are endowed with an unfettered discretion to keep up with the times and economic trend in the country and most especially with prevailing fluctuating and rather obvious decline of purchasing power of the Nigerian currency i.e. the Naira.”

In line with the above, I find the complaints of the Appellant in bad faith especially after having admitted still holding on to the Respondent’s car up till this moment, making at 24 years of continued unlawful detention. The question is, of what value is this car in 2014 to anybody? Would it be repairable, with the figure quoted in the evidence; can it buy the necessary items or replaceable cost, which I doubt (considering it is being manufactured now).

At Page 83 of the records, Respondent gave evidence as to prevailing cost of repair, purchase and present state of the car, contrary to submissions of Appellant.

It was good figure as at 1991 but as at 2003 judgment date it was no longer commensurate with times). Therefore she rightly invoked powers upon the facts before her under the Lagos State High Court Rules and Law on interest to give an equitable grant.

There is abundant unchallenged evidence to justify the award. Therefore, this court cannot find the wisdom in disturbing the figure awarded or measure of damages granted. It certainly does not amount to double compensation. I resolve these issues in favor of the Respondent. This judgment cannot end without doing justice, Claimant adduced evidence that his May salary was not paid which he claimed in his relief for salaries and enumerations in paragraph 19 (iii) thereof. Consequently, the trial judge having held that the plaintiff’s employment is deemed terminated, he is entitled to May 1990 salary by EXHIBIT J, to N320.67K per month and N85.000, and in addition to two months’ salary in lieu of notice respectively.

1. “The plaintiff shall be paid MAY 1990 salary of N320.67 (Three Hundred and Twenty Naira, Sixty Seven Kobo) and N85.00 (Eighty Five Naira) as allowance for the same month;

2. Two months’ salary in lieu of Notice per Exhibit J. i.e., N641.34 (Six Hundred and Forty One, Thirty Four Kobo)

3. Defendant shall pay Plaintiff the expenses incurred. Loss of use of his car from 4/5/90 until 31st December 1992 and thereafter N100.00 per day from 1st January 1993 till date of judgment for loss of use by the Plaintiff of the said car having been wrongfully impounded and deferred by the Defendant.

4. The defendant shall pay the sum of N180,000.00 (One Hundred and Eighty Thousand Naira) being the value of the Plaintiff’s Volkswagen car which the defendant wrongfully impounded at its premises and which vehicle has been left to deteriorate since 1990.

5. Defendant shall pay general damages of N100,000.00 (One Hundred Thousand Naira) as claimed by the Plaintiff.

6. All payments shall be made at the current prevailing value of the Naira.

7. Defendant shall pay interest at the rate of 7% per annum on all payments above from today until same is paid.

8. Defendant shall pay N10,000.00 as cost of this action.

On the whole, for the reasons enumerated in this judgment, the appeal lacks merit and is hereby dismissed. The judgment of HON. JUSTICE O. O. OKE delivered on 7th day of April, 2003 in the Lower Court is hereby affirmed save the consequential orders made above. Cost of N50,000 is awarded to the Respondent.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Abimbola Osarugue Obaseki-Adejumo, JCA, I agree with the reasoning and conclusion contained in the lead judgment. I abide by all the orders contained therein.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in agreement with the succinct judgment prepared by my learned brother, Abimbola Osarugue Obaseki-Adejumo, J.C.A., which I had the advantage of reading in draft.

I gratefully adopt the judgment as my own with nothing extra to add.

Appearances

Ekene O. Maduagwua Esq.For Appellant

AND

Lekan Shonibare Esq.For Respondent