GTB v. FOCUSED EXPERIENTIAL MARKETING LTD (2021)

GTB v. FOCUSED EXPERIENTIAL MARKETING LTD

(2021)LCN/15008(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, February 18, 2021

CA/L/1256/2018

RATIO

BRIEF: FUNCTION OF A REPLY BRIEF

Now, it is elementary that the function of a reply brief is to answer the arguments in a respondent’s brief which were not taken in the appellant’s brief and it should be limited to answering any new points arising from the respondent’s brief. Where a respondent’s brief merely responds to the points raised in the appellant’s brief and does not raise any new points, a reply brief is otiose as it is not a means for re-arguing the case of the appellant – Omnia (Nig) Ltd Vs Dyktrade Ltd (2007) 15 NWLR (Pt 1058) 576, Abdullahi Vs Military Administrator, Kaduna State (2009) 15 NWLR (Pt 1165) 417, Longe Vs First Bank of Nigeria Plc (2010) 6 NWLR (Pt 1189) 1. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

PLEADINGS: IMPORTANCE OF PLEADINGS

Now, the Courts have stated over and over that in an action fought on pleadings, the very foundation of the action is the pleadings of the parties. Pleadings are the written statements of the parties setting forth in a summary form the material facts on which each relies in support of his claim or defence, as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them – Aminu Vs Hassan (2014) 5 NWLR (Pt 1400) 287, Mbanefo Vs Molokwu (2014) 6 NWLR (Pt 1403) 377 at 418 A-C, Corporate Ideal Insurance Ltd Vs Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt 1405) 165 at 188A-B, Anyafulu Vs Meka (2014) 7 NWLR (Pt 1406) 396 at 424G.
This principle was firmly restated by the Court of Appeal in Awuse Vs Odili (2005) 16 NWLR (Pt 952) at page 504 E-F when the Court said that “the primary function of a pleading is to define and delimit with clarity and precision the real matter in controversy between the parties upon which they can prepare and present their respective cases” and “in addition, it also serves as the basis upon which the Court will be called to adjudicate between them.” Thus, it is the pleadings of a party that determines the nature of his case. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

TORT: LAW OF CONVERSION

The assertion of Counsel to the Appellant that money in a bank is an intangible asset which cannot be the subject of conversion is a restatement of an old and anachronistic position of the law of conversion, and it is blind to the changes that have taken place in the law over time. This Court must confess that there is a dearth of Nigerian case law authorities on the subject, but not so in other common law countries. Explaining the changes in the law of conversion with regards to tangible and intangible assets, the Court of Appeals, Maryland, in the American case of Allen Investment Corporation Vs Jasen 731 A.2d 957 (1999), stated thus:
“A ‘conversion’ is any distinct act of ownership or dominion exerted by one person over the personal property of another in denial of his right or inconsistent with it’ – Interstate Ins. Co. v. Logan, 109 A.2d 904, 907 (1954). The original common law rule was that a claim for conversion could not be sought unless the plaintiff’s property was tangible. This rule has been modified over time and certain intangible property interests may now be recovered through a conversion claim. As explained in W. Page Keeton et al., Prosser and Keeton on the Law of Torts 5th Ed (1984) at pages 91-92:
‘Intangible rights of all kinds could not be lost or found, and the original rule was that there could be no conversion of such property. But this hoary limitation has been discarded to some extent by all of the Courts. The first relaxation of the rule was with respect to the conversion of a document in which intangible rights were merged, so that the one became the symbol of the other – as in the case of a stock certificate. This was then extended to include intangible rights to which a tangible object, converted by the defendant, was highly important as in the case of a saving book, an insurance policy, a tax receipt, account books or a receipted account․ In all of these cases, the conversion of the tangible thing was held to include conversion of the intangible rights, and to carry damages for it. The final step was to find conversion of the rights themselves where there was no accompanying conversion of anything tangible․ The process of expansion has stopped with the kind of intangible rights which are customarily merged in, or identified with some document.”
Dovetailing these changes to money as an intangible property, the general rule is still that monies are intangible and therefore, not subject to a claim for conversion – Plotch Vs Gregory 463 So. 2d 432 (Fla. Dist. Ct. App. 1985), and Wema Bank Plc Vs Osilaru (2008) 4 WRN 160. However, an exception exists when a claimant alleges that the defendant converted a specific segregated or identifiable fund. Thus, the present position is that where a claimant can show that money in issue is specific and capable of identification, an action for conversion of money will lie – Mitchell Energy Corporation Vs Samson Resources Co 80 F.3d 976, 984 (5th Cir. 1996), Johnson Vs Life Insurance Co 581 So. 2d 438, 442-443 (Ala. 1991), Roderick Development Investment Co. Inc. Vs Community Bank of Edgewater, 282 Ill. App. 3d 1052, 1058-59 (1st Dist. 1996), Hudspeth Vs A & H Construction Incorporated 495 S.E.2d 322, 323 (1997), Allen Investment Corporation Vs Jasen 731 A.2d 957 (1999). This rule is well-synthesized in Fowler V. Harper et al., The Law of Torts, Paragraph 2:56 (3d ed.1986), which notes that conversion claims generally are “recognized in connection with funds that have been or should have been segregated for a particular purpose or that have been wrongfully obtained or retained or diverted in an identifiable transaction.”
In Allen Vs Gordon, 429 So. 2d 369 (Fla. Dist. Ct. App. 1983), a decision of the District Court of Appeal of Florida, the point was made thus:
“In appellant’s final issue on appeal, he argues that the trial Court erred in denying his motion for directed verdict on the ground that appellee failed to state a cause of action. Appellant contends that the money in question could not be the subject of conversion. However, in Belford Trucking Company v. Zagar 243 So. 2d 646 (Fla. 4th DCA 1971), the Court declared that money can be the subject of conversion if the specific money in question can be identified. The two accounts involved here were separate ascertainable amounts and accounts. The money was therefore specific and identifiable. The conversion took place, not while in the accounts, but upon appellant taking the money from the accounts. By withdrawing the money, appellant exercised wrongful dominion and control to the detriment of appellee. Therefore, a conversion action was proper.”
Where money, an intangible asset, is documented and manifested by a tangible instrument such as a written agreement, a cheque, or a promissory note, the law is that it is identifiable and may be converted – Morison Vs London County and Westminster Bank Ltd (1914) 3 KB 356, 379, Lloyds Bank Ltd Vs The Chartered Bank of India, Australia and China (1929) 1 KB 40, Hite Vs Thomas & Howard Co 409 S.E.2d 340, 342 (1991), OBG Limited Vs Allan (2007) UKHL 21.

In Aero International Corporation Vs Florida National Bank of Miami 437 So. 2d 156 (Fla. 3d DCA 1983), the Court affirmed a judgment for conversion of money which had been placed with the bank under an escrow agreement, holding that the funds were clearly identifiable. In Limbaugh Vs Merrill Lynch, Pierce, Fenner & Smith Inc, 732 F.2d 859, 862 (11th Cir. 1984), the United States Court of Appeals for the Eleventh Circuit reviewed a suit for conversion against a broker who transferred money from a mutual fund account without the owner’s consent. The Court noted, in dicta, that the transferred money had to be “sufficiently identifiable,” meaning the plaintiff must describe the funds “with such reasonable certainty that the jury may know what money is meant” and held that the money being in the form of specific mutual fund shares, made the funds sufficiently identifiable to be tortuously converted. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
CONVERSION: ELEMENTS IN AN ACTION FOR CONVERSION OF MONEY

Hence, an action for conversion of money consists of three elements (i) specific and identifiable money; (ii) a deprivation of money belonging to another; (iii) an unauthorized act which deprives another of his money – Navid Vs Uiterwyk Corporation 130 B. R. 594 (M.D. Fla 1991). PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

CONVERSION: CIRCUMSTANCES A BANK WILL BE GUILTY OF THE TORT OF CONVERSION

The law is settled that where a bank collects cheques and pays the proceeds of the cheques to persons not entitled to the cheques, it is guilty of the tort of conversion – A. L. Underwood Ltd Vs Bank of Liverpool and Martins (1924) 1 KB 775, Bute (Marquess) Vs Barclays Bank (1955) 1 QB 202, United Nigeria Insurance Co. Vs Muslim Bank (WA) Ltd (1972) All NLR 318, Boma Manufacturing Ltd Vs Canadian Imperial Bank of Commerce (1996) 140 DLR (4th) 463 or (1996) 3 SCR 727, Kleinworth Vs Comptoir National d’Excompte de Paris (1984) 2 QB 167, Trade Bank Plc Vs Benilux (Nig) Ltd (2003) 9 NWLR (Pt 825) 416, Teva Canada Ltd Vs Bank of Montreal (2016) ONCA 94 (CanLII), Teva Canada Ltd Vs TD Canada Trust & Bank of Nova Scotia (2017) 2 SCR 317. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

GUARANTY TRUST BANK PLC APPELANT(S)

And

FOCUSED EXPERIENTIAL MARKETING LTD RESPONDENT(S)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Lagos State delivered in Suit LD/316/2013 on the 2nd of July, 2018 by Honorable Justice A. A. Akintoye. The Respondent was the claimant in the lower Court and its claims were for:
i. The sum of N102 Million being special and general damages for conversion of the proceeds of cheques rightfully belonging to the Respondent accepted by the Appellant for collection and paid into Current Account No 221-8580748-110 at the Opebi Branch of the Appellant opened by the Respondent and permitted to be operated without lawful authority and/or mandate of the Respondent.
ii. Interest at the rate of 26% per annum from December 2010 until the date of judgment and thereafter at 10% per annum until liquidation.

The case of the Respondent on the pleadings in support of the claims was that in or about December 2010, the Appellant opened or permitted a current account with Account No 221-8580748-110 to be opened at the Opebi Branch of the Bank in its name and into which the Appellant accepted cheques issued in its favour to be paid and

the proceeds of the cheques were cleared into the account. It was its case that the said account was opened without its authority and/or mandate and that the account was opened without the Appellant carrying out due diligence of verifying its incorporation documents at the Corporate Affairs Commission. It was its case that the Appellant paid out moneys totaling N2 Million rightly belonging to it through the account without its authority and that it thus suffered loss and damage in that its customers such as Unilever Nigeria Plc and Reckitt Benckiser Nigeria Plc have refused to continue doing business with it and that Reckitt Benckiser Nigeria Plc in fact cancelled the businesses already awarded to it. It was its case that it caused a letter to be addressed to the Appellant demanding for refund of the N2 Million plus damages and that the Appellant ignored the letter and whereof he has commenced this action to claim for the N2 Million as special damages and the sum of N100 Million as general damages as well interests on the sums.

In its response pleadings, the Appellant denied the case of the Respondent and it denied being responsible for any loss suffered

by the Respondent and it was its case that it was not negligent and did not commit any default in the matters complained about by the Respondent. It was its case that if indeed the Respondent suffered a loss or damage, it would contend that the Respondent failed to take steps to mitigate its loss and was guilty of contributory negligence in that the Respondent allowed cheques drawn in its name to be handed to persons who lodged them in the said current account and it failed to report the loss of the cheques to the Appellant and it represented to the Appellant that the account was opened on its behalf and with its consent and it thus voluntarily consented to accept the risk of injury or damage brought about by its actions.

The matter proceeded to trial and in the course of which the Respondent called one witness and tendered documentary evidence in proof of its case and the Appellant too called one witness, but tendered no documentary evidence, in proof of its defence. At the conclusion of trial and after the presentation of final written addresses by Counsel to the parties, the lower Court entered judgment in favour of the Respondent and it awarded special

damages in the sum of N2 Million together with interest at the rate of 26% per annum from December 2010 to the date of judgment and N1 Million as general damages with interest thereon at the rate of 10% from the date of judgment until liquidation. The Appellant was dissatisfied with the judgment and it caused its Counsel to file a notice of appeal dated the 16th of July, 2018 and containing seven grounds of appeal against it.

In arguing the appeal, Counsel to the Appellant filed a brief of arguments dated the 31st of October, 2018 on the 9th of November, 2018 and Counsel to the Respondent responded by a brief of arguments dated the 7th of December, 2018 but filed on the 10th of December, 2018. Counsel to the Appellant filed a Reply brief of arguments dated the 25th of March, 2019 on the 5th of April, 2019 and the Reply brief of arguments was deemed properly filed and served by this Court on the 8th of December, 2020. Counsel to the Appellant also filed a list of additional authority dated the 7th of December, 2020. Counsel to the parties relied on and adopted the contents of their respective processes at the hearing of the appeal.

Counsel to the Appellant distilled three issues for determination in the appeal and these were:
i. Whether money as a chose in action is capable of being converted in law?
ii. Whether from the totality of the facts of the case, the oral evidence led and the document tendered at the lower Court, the Respondent indeed proved his case.
iii. Whether after admitting the fact of contributory negligence, the Respondent can still succeed on its claim for damages.

In arguing the first issue for determination, Counsel to the Appellant stated that the cause of action of the Respondent was founded on the tort of conversion of the sum of N2 Million in its account with the Appellant and which the Respondent described as “proceeds of cheques rightfully belonging” to it and it was not in dispute that the said sum of N2 Million was in the custody of the Appellant. Counsel stated that all personal things are either a chose in possession, i.e. where the owner has both the right to the enjoyment and occupation of the chose which is the nature of a tangible asset, or a chose in action, and this is a right of property which can only be claimed or enforced by

action and not by physical possession, and the money of a customer in the hand of a Bank is a chose in action, an intangible asset upon which he cannot exercise possessory right and he referred to the case of Colonial Bank Vs Whinney (1885) 30 Ch. D. 262.

Counsel stated that from the pleadings and evidence led by the parties, the relationship between the Appellant and the Respondent was one of Banker and Customer, which is contractual, and that by the nature of this relationship, the Respondent had neither custody nor control over the monies standing to its credit in the said account or any account in the Bank and his contractual right is to demand for repayment of the money standing to his credit and he referred to the cases of Balogun Vs NBN (1978) 11 NSCC 133, Purification Tech. Nig. Ltd Vs Attorney General, Lagos State (2005) 3 WRN 92 and Wema Bank Plc Vs Osilaru (2008) 4 WRN 160. Counsel reiterated the definition of the tort of conversion as laid down in the case of Danjuma Vs UBN Ltd (1995) 5 NWLR (Pt 395) 318 and relied on the case and the case of Henry Stephens Eng. Ltd Vs S. A. Yakubu (Nig) Ltd (2009) 41 WRN 43 in asserting that a demand for the

goods and refusal were essential ingredients of the tort of conversion.

Counsel re-echoed all the ingredients of conversion as itemized in the case of UAC (Nig) Ltd Vs Akinyele (2012) 15 NWLR (Pt 1322) 1 and stated that the sum of N2 Million, the subject matter of the Respondent’s action, was a chose in action and therefore cannot be converted and that there was no evidence led that the Respondent demanded for the money from the Appellant and he referred to the case of Wema Bank Plc Vs Osilaru supra. Counsel stated that the lower Court thus ought to have refused the claims of the Respondent and he urged the Court to resolve the issue for determination in favour of the Appellant.

Counsel argued the second and third issues for determination together and he stated that the Respondent lumped its claim for special and general damages together and it did not plead any fact on the items of the special damages and neither did its witness lead evidence, oral or documentary, giving the particulars of how the Respondent arrived at the sum of N102 Million claimed. Counsel stated that the witness did not also give any evidence, oral or documentary, in

proof of the loss it allegedly suffered by reason of the allegation of conversion and no document of the alleged refusal to do business or cancellation of its ongoing business by Unilever Nigeria Plc or Reckitt Benckister Nigeria Plc was produced. Counsel stated that assessment of damages must be based on pleadings and evidence adduced and that where there is no such evidence, the claim for damages should be dismissed and he referred to the cases of Ziks Press Ltd Vs Alvan Ikoku 13 WACA 188, Ankiola Vs Anyiam (1965) 1 All NLR 508 and Int’l Messengers Nig Ltd Vs Nwachukwu (2004) 6-7 SC 55.

Counsel stated that the assertions on the alleged losses made by the witness of the Respondent in his oral evidence in chief were incomplete, inconclusive, hearsay and mere conjectures and they did not meet the standard of proof for the award of damages, especially special damages and he referred to the cases of Agbaje Vs James (1966) 4 NSCC 154, C.A.P. Plc Vs Vital Inv Ltd (2006) 46 WRN 74, Odumosu Vs ACB Ltd (1976) NSCC 635 and Uwa Printers Ltd Vs Inv. Trust Ltd (1988) 12 SC (Pt II) 31. Counsel stated that in finding for the Respondent, the lower Court in the

judgment shifted the onus of proof on the Appellant without the Respondent having first discharged the burden on it and that it was immaterial if the evidence of the Respondent witness was not challenged or controverted as this will not absolve the Respondent of the onus on it and he referred to the case of Salau Vs Araba (2004) All FWLR (Pt 204) 88. Counsel stated further that the grant of both special and general damages by the lower Court in the circumstances of this case amounted to double compensation and that the law frowns at such and he referred to the cases of Tsokwa Motors Nig Ltd Vs UBA Plc (2008) 1 SC (Pt I) 1 and O.M.T. Co Ltd Vs Imafidon (2012) 4 NWLR (Pt 1290) 332.

Counsel referred to the statement of defence of the Appellant and noted that the Appellant relied on and pleaded the defence of contributory negligence and led evidence on the defence through its witness and that Respondent neither filed a Reply to the defence nor was the Appellant’s witness cross-examined on the point and these meant that the Respondent admitted the defence and he referred to the cases Julius Berger (Nig) Plc Vs Dolapo (2013) All FWLR (Pt 676) 497,

Anthony Vs Ayi II (2004) All FWLR (Pt 227) 444, amongst others. Counsel stated that, in addition, the Appellant also proved that the Respondent contributed to the negligence in the cross examination of the Respondent’s witness and that the lower Court ought to have found in favour of the Appellant on the point. Counsel urged the Court to resolve the second and third issues for determination in favour of the Appellant.

Counsel concluded his submissions by praying the Court to find merit in the appeal and to allow same and set aside the judgment of the lower Court.

On his part, Counsel to the Respondent similarly distilled three issues for determination in the appeal and these were:
i. Whether from the pleadings and evidence, the learned trial Judge was right in holding the Appellant liable in tort of conversion of the proceeds of cheques rightfully belonging to the Respondent and paid into its Opebi Branch account opened and permitted to be operated in the Respondent’s name without the Respondent’s lawful authority.
ii. Whether on the evidence, the learned trial Judge was right in awarding N2 Million as special damages.

iii. Whether from the pleadings and evidence the learned trial Judge was right in awarding N1 Million as general damages.

Counsel to the Respondents prefaced his arguments on the issues for determination with an objection to the competence of the portion of the arguments of Counsel to the Appellant wherein he raised the issue of demand and refusal as an ingredient of conversion. Counsel stated that no issue of fact was joined by the parties on demand and refusal on the pleadings and that the issue did not come up for resolution by the lower Court and that nowhere in the notice of appeal did the Appellant allude to the issue and it is like a bolt out of the blues and should not be considered by this Court and he referred to the case of Ojemen Vs Momodu (1983) 1 SCNLR 188. Counsel stated further that nowhere in the judgment did the lower Court decide on the ingredients of conversion and the question of the ingredients of conversion, including demand and refusal, is one of fact or mixed law and facts and this Court cannot pronounce on such a question where the lower Court has not pronounced, except it is raised as a fresh issue with the

leave of Court. Counsel stated that no such leave was sought or obtained in the instant case and he referred to the case of Garuba Vs Omokhodion (2011) 15 NWLR (Pt 1269) 145 in praying the Court to strike out the arguments of Counsel to the Appellant thereon. Counsel stated that, anyways, the Respondent did address a letter, Exhibit C on the record, demanding payment of the sum claimed plus damages and that the Appellant refused to pay.

In arguing the first for determination, Counsel noted that Counsel to the Appellant conceded that the cause of action of the Respondent was solely based on the tort of conversion of the sum of N2 Million which was at all material times in the custody of the Appellant and stated that the concession shifted the burden in this appeal unto the Appellant to show what evidence it led at trial to show on whose mandate the current account in question was opened and operated and on whose instructions the sum of N2 Million was paid out and how the lower Court erred in face of such evidence and that no such evidence exists on the record. Counsel stated that the lower Court found in the judgment that the current account opened and

operated in the Opebi Branch of the Appellant in the name of the Respondent was not so opened and operated with the lawful authority and/or mandate of the Respondent and this finding has not been dislodged by the Appellant and that this was sufficient to resolve the first issue for determination in favour of the Respondent.

Counsel referred to the definition of mandate to operate account in Paget’s Law of Banking (2002) 12th Ed at page 403 and stated the entire arguments of Counsel to the Appellant on the issue of whether was a chose in action were based on the faulty premise that the relationship of banker/customer existed between the Appellant and the Respondent and that this was not the case of the Respondent on the pleadings. Counsel stated that the case of the Respondent was not predicated on breach of contract, but on conversion by the Appellant paying out monies rightly belonging to the Respondent without its mandate to do so and that the lower Court was right in following the binding decision of Trade Bank Plc Vs Benilux (2003) 9 NWLR (Pt 825) 416.

Counsel stated that the case of the Respondent not having been based on a breach of

banker/customer relationship, the monies in question was not customer’s money in the hand of the bank and that as such all the cases relied on by the Counsel to the Appellant were inapposite. On the defence of contributory negligence, Counsel stated that the case of the Respondent was not based on negligence and that as such the defence was not available to the Appellant and he referred to the case of Bewac Ltd Vs ACB Ltd (1973) NCLR 352 in asserting that what was expected of the Appellant was to show that it complied with normal banking practice in opening and operating the question and this it failed to do. Counsel urged the Court to resolve the first issue for determination in favour of the Respondent.

Counsel argued the second and third issues for determination together and he referred to the case of UBA Plc Vs Ogunsanya (2003) 8 NWLR (Pt. 821) 111 in reiterating the principles governing when this Court will interfere with the award of damages by the lower Court and stated that, contrary to the suggestion of Counsel to the Appellant, the Respondent supplied sufficient particulars of the claim for N2 Million special damages in the pleadings and

the lower Court so found in the judgment and he relied on the case of REAN Plc Vs Anumnu (2003) 6 NWLR (Pt. 815) 52. Counsel stated that strict proof of special damages does not mean unusual proof and that, apart from the evidence led by the witness of the Respondent in proof of the special damages, the witness of the Appellant confirmed under cross examination that amount of money paid in and out of the account in question was N2 Million and this clearly supported the case of the Respondent and that the evidence was rightly utilized by the lower Court in making its finding and he referred to the cases of Imana Vs Robinson (1979) 3-4 SC (Reprint) 1 and Woluchem Vs Gudi (1981) 5 SC (Reprint) 178. Counsel referred to the cases of Kosile Vs Folarin (1989) 3 NWLR (Pt 107) 1 and UBA Plc Vs Ogunsanya supra in submitting that the measure of damages in conversion cases is the full value of the property converted at the time of the conversion and that the lower Court was thus correct in awarding the sum of N2 Million as special damages.

On the award of N1 Million as general damages, Counsel stated that the claim for general damages was predicated on the further

loss suffered by the Respondent by the refusal of named clients to continue business with it by reason of the conversion and that the finding on general damages was not unreasonable as there was evidence at trial that the sum of N2 Million converted was payment for professional services rendered to one of the named clients and this presupposed that the Respondent could have suffered reputational damage by reason of the act of the Appellant. Counsel stated that it is recognized that in a claim in conversion losses beyond the value of the item converted may be incurred and that claimant is entitled to recover for such consequential loss based on the principle of remoteness of damage and he referred to the learned authors of McGregor on Damages (2014) 19th Ed at page 1316. Counsel stated that the Appellant has not contended against the award of general damages on the ground of remoteness of damage and that the sum of N1 Million awarded thereon was discretionary and he urged the Court not interfere with this exercise of discretion by the lower Court and referred to the case of UBA Plc Vs Ogunsanya supra. Counsel stated that the award of general damages in addition

to the special damages was proper as they were both claimed and proved and did not amount to double compensation and he referred to the cases of Eliochin Vs Mbadiwe (1986) 1 NWLR (Pt 14) 47 and Odiba Vs Azege (1998) 9 NWLR (Pt 566) 370. Counsel urged the Court to resolve the second and third issues for determination in favor of the Respondent.

Counsel concluded his arguments by praying the Court to find no merit in the appeal and to dismiss same accordingly and affirm the judgment of the lower Court.

As noted above, the records show that Counsel to the Appellant filed a Reply brief of arguments to the brief of arguments of the Respondent. The Reply brief of arguments spanned eleven pages. Now, it is elementary that the function of a reply brief is to answer the arguments in a respondent’s brief which were not taken in the appellant’s brief and it should be limited to answering any new points arising from the respondent’s brief. Where a respondent’s brief merely responds to the points raised in the appellant’s brief and does not raise any new points, a reply brief is otiose as it is not a means for re-arguing the case of

the appellant – Omnia (Nig) Ltd Vs Dyktrade Ltd (2007) 15 NWLR (Pt 1058) 576, Abdullahi Vs Military Administrator, Kaduna State (2009) 15 NWLR (Pt 1165) 417, Longe Vs First Bank of Nigeria Plc (2010) 6 NWLR (Pt 1189) 1. A look through the reply brief of arguments shows that apart from the paragraphs that responded to the objection raised by Counsel to the Respondent on the argument on “demand and refusal”, it was an attempt to fill in gaps and re-argue the case of the Appellant. This is not the purpose of a Reply brief. Thus, aside the paragraphs that responded to the objection raised and argued by Counsel to the Respondent to the argument on “demand and refusal”, the Court will discountenance the Reply brief.

In contending against the objection, Counsel to the Appellant stated that in making submissions on the case of the Respondent and on the defence of contributory negligence in the final written address, he referred to the case ofDanjuma Vs UBA Plc supra and that it is from this case that he highlighted the issue of “demand and refusal” in this appeal and that it was thus incorrect that the issue was not canvassed in the lower Court.

Reading through the records of the lower Court, particularly the pleadings of the parties, the notes of evidence, the final written addresses of the parties, the judgment of the lower Court and the notice of appeal, as well as the arguments of the parties in this appeal, it is the view of this Court that there are two issues for determination in the appeal. These are:
i. Whether, from the state of the pleadings, the evidence led by the parties and the state of the law on the subject, the lower Court was correct when it found the Appellant liable in conversion.
ii. Whether the lower Court breached the principles on the award of damages as to warrant this Court interfering with the damages awarded in favor of the Respondent for conversion.

This appeal will be resolved on the two issues for determination and all the arguments canvassed by the Counsel to the parties shall be considered under the two issues for determination. The two issues for determination will be considered seriatim.

Issue One
Whether, from the state of the pleadings, the evidence led by the parties and the state of the law on the subject, the

lower Court was correct when it found the Appellant liable in conversion.

In making its finding on conversion, the lower Court deliberated in the judgment thus:
“The evidence before the Court establishes that account No 221-8580748110 was opened at the Defendant Bank branch at Opebi. The Claimant denies authorizing the opening of such an account and called upon the Defendant to show proof that it had opened such an account for the Claimant upon its lawful authority and/or mandate. This could have very easily been established by the Defendant by providing any of the following, a search conducted from the Corporate Affairs Commission, an account opening form filled by the Claimant, a mandate card showing the signatories to the account, a Board Resolution for the account opening. Yet not one of the documents were brought to Court by the Defendant to show that it had indeed opened an account for the Claimant pursuant to lawful authority and/or mandate of the Claimant…
It is important to bear in mind that the sum of N2 Million … was paid into the said account at Opebi and the money was also paid out. The witness even went further

to say the N2 Million … was paid into the Opebi Branch by cheque. He is therefore not denying that an account was opened, what he is saying is that it was the Claimant who instructed that the said account be opened but he failed to provide any documents to show that it was indeed the Claimant who instructed the Defendant to open an account for it. This fact the Defendant failed to prove…
… A look at the Claimants claim shows that the Claimant’s case is for conversion of the proceeds of cheques rightfully belonging to the Claimant, accepted by the Defendant for collection and paid into a current account supposed to have been opened by the Claimant, for which there is no proof. The Claimant is not claiming in breach of contract. I agree with the learned Counsel to the Claimant that paying out sums of money which rightfully belong to the Claimant without its mandate amounts to conversion which is an unauthorized act which has deprived the Claimant of his money …”

Counsel to the Appellant contended that this finding of the lower Court on conversion is erroneous and he predicated his assertion on three grounds;

namely (i) that the property alleged to have been converted is money and that money being an intangible asset is not capable of being converted; (ii) that the Appellant pleaded and proved the defence of contributory negligence and this was ignored by the lower Court; (iii) the Respondent did not show that it fulfilled the condition of “demand and refusal” to sustain its claim in conversion.

Looking at the brief of arguments, the foundation upon which the Counsel to the Appellant erected his first contention was that the relationship between the Appellant and the Respondent was one of banker/customer and that the money in question was at all material times in the custody of the banker and thus constituted customer’s money in the hands of the bank. Counsel proceeded therefrom to say that such money constituted an intangible asset over which the Respondent had no possessory right and it cannot be the subject of conversion. Now, the Courts have stated over and over that in an action fought on pleadings, the very foundation of the action is the pleadings of the parties. Pleadings are the written statements of the parties setting forth in a

summary form the material facts on which each relies in support of his claim or defence, as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them – Aminu Vs Hassan (2014) 5 NWLR (Pt 1400) 287, Mbanefo Vs Molokwu (2014) 6 NWLR (Pt 1403) 377 at 418 A-C, Corporate Ideal Insurance Ltd Vs Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt 1405) 165 at 188A-B, Anyafulu Vs Meka (2014) 7 NWLR (Pt 1406) 396 at 424G.
This principle was firmly restated by the Court of Appeal in Awuse Vs Odili (2005) 16 NWLR (Pt 952) at page 504 E-F when the Court said that “the primary function of a pleading is to define and delimit with clarity and precision the real matter in controversy between the parties upon which they can prepare and present their respective cases” and “in addition, it also serves as the basis upon which the Court will be

called to adjudicate between them.” Thus, it is the pleadings of a party that determines the nature of his case. Looking at the case of the Respondent on the pleadings, it is incorrect that it predicated his claim on the existence of a banker/customer relationship between it and the Appellant. It was its case that it was not a customer of the Appellant in respect of the account in question as the account was not opened on its instructions and with its lawful authority and mandate. The money in question did not constitute customer’s money in the hands of the bank.

Allen Investment Corporation Vs Jasen 731 A.2d 957 (1999), stated thus:
“A ‘conversion’ is any distinct act of ownership or dominion exerted by one person over the personal property of another in denial of his right or inconsistent with it’ – Interstate Ins. Co. v. Logan, 109 A.2d 904, 907 (1954). The original common law rule was that a claim for conversion could not be sought unless the plaintiff’s property was tangible. This rule has been modified over time and certain intangible property interests may now be recovered through a conversion claim. As explained in W. Page Keeton et al., Prosser and Keeton on the Law of Torts 5th Ed (1984) at pages 91-92:
‘Intangible rights of all kinds could not be lost or found, and the original rule was that there could be no conversion of such property. But this hoary limitation has been discarded to some extent by all of the Courts. The first relaxation of the rule was with respect to the conversion of a document in which intangible rights were merged, so that the one became the symbol of the other – as in the case of a stock certificate. This was then extended to include

intangible rights to which a tangible object, converted by the defendant, was highly important as in the case of a saving book, an insurance policy, a tax receipt, account books or a receipted account․ In all of these cases, the conversion of the tangible thing was held to include conversion of the intangible rights, and to carry damages for it. The final step was to find conversion of the rights themselves where there was no accompanying conversion of anything tangible․ The process of expansion has stopped with the kind of intangible rights which are customarily merged in, or identified with some document.”
Dovetailing these changes to money as an intangible property, the general rule is still that monies are intangible and therefore, not subject to a claim for conversion – Plotch Vs Gregory 463 So. 2d 432 (Fla. Dist. Ct. App. 1985), and Wema Bank Plc Vs Osilaru (2008) 4 WRN 160. However, an exception exists when a claimant alleges that the defendant converted a specific segregated or identifiable fund. Thus, the present position is that where a claimant can show that money in issue is specific and capable of identification, an

action for conversion of money will lie – Mitchell Energy Corporation Vs Samson Resources Co 80 F.3d 976, 984 (5th Cir. 1996), Johnson Vs Life Insurance Co 581 So. 2d 438, 442-443 (Ala. 1991), Roderick Development Investment Co. Inc. Vs Community Bank of Edgewater, 282 Ill. App. 3d 1052, 1058-59 (1st Dist. 1996), Hudspeth Vs A & H Construction Incorporated 495 S.E.2d 322, 323 (1997), Allen Investment Corporation Vs Jasen 731 A.2d 957 (1999). This rule is well-synthesized in Fowler V. Harper et al., The Law of Torts, Paragraph 2:56 (3d ed.1986), which notes that conversion claims generally are “recognized in connection with funds that have been or should have been segregated for a particular purpose or that have been wrongfully obtained or retained or diverted in an identifiable transaction.”
In Allen Vs Gordon, 429 So. 2d 369 (Fla. Dist. Ct. App. 1983), a decision of the District Court of Appeal of Florida, the point was made thus:
“In appellant’s final issue on appeal, he argues that the trial Court erred in denying his motion for directed verdict on the ground that appellee failed to state a cause of action.

Appellant contends that the money in question could not be the subject of conversion. However, in Belford Trucking Company v. Zagar 243 So. 2d 646 (Fla. 4th DCA 1971), the Court declared that money can be the subject of conversion if the specific money in question can be identified. The two accounts involved here were separate ascertainable amounts and accounts. The money was therefore specific and identifiable. The conversion took place, not while in the accounts, but upon appellant taking the money from the accounts. By withdrawing the money, appellant exercised wrongful dominion and control to the detriment of appellee. Therefore, a conversion action was proper.”
Where money, an intangible asset, is documented and manifested by a tangible instrument such as a written agreement, a cheque, or a promissory note, the law is that it is identifiable and may be converted – Morison Vs London County and Westminster Bank Ltd (1914) 3 KB 356, 379, Lloyds Bank Ltd Vs The Chartered Bank of India, Australia and China (1929) 1 KB 40, Hite Vs Thomas & Howard Co 409 S.E.2d 340, 342 (1991), OBG Limited Vs Allan (2007) UKHL 21.

In Aero International Corporation Vs Florida National Bank of Miami 437 So. 2d 156 (Fla. 3d DCA 1983), the Court affirmed a judgment for conversion of money which had been placed with the bank under an escrow agreement, holding that the funds were clearly identifiable. In Limbaugh Vs Merrill Lynch, Pierce, Fenner & Smith Inc, 732 F.2d 859, 862 (11th Cir. 1984), the United States Court of Appeals for the Eleventh Circuit reviewed a suit for conversion against a broker who transferred money from a mutual fund account without the owner’s consent. The Court noted, in dicta, that the transferred money had to be “sufficiently identifiable,” meaning the plaintiff must describe the funds “with such reasonable certainty that the jury may know what money is meant” and held that the money being in the form of specific mutual fund shares, made the funds sufficiently identifiable to be tortuously converted.
Hence, an action for conversion of money consists of three elements (i) specific and identifiable money; (ii) a deprivation of money belonging to another; (iii) an unauthorized act which deprives another of his money –

Navid Vs Uiterwyk Corporation 130 B. R. 594 (M.D. Fla 1991). The case of the Respondent, both on the pleadings and in the evidence led, was that on or about December 2010, the Appellant opened or permitted a current account with Account No 221-8580748-110 to be opened at the Opebi Branch of the Bank in its name, without its knowledge or authority, and into which the Appellant accepted cheques issued in its favour and the proceeds of the cheques totaling N2 Million were cleared into the account and that the Appellant paid out the said moneys belonging to it through the account without its authority. Apart from bare denials, the Respondent did not contest these facts on the pleadings. The witness of the Respondent led unchallenged evidence in support of the facts and the witness of the Appellant admitted under cross examination that cheque deposits of N2 Million were paid into the account and that the proceeds of the cheque were paid out of the account. The claim of the Respondent was for conversion of the proceeds of the cheques paid into the said account totaling N2 Million. The money was tied to a document i.e., cheques, it is thus specific and clearly identifiable and it can

thus be a subject of an action in conversion.
In the text, Street on Torts 10th Edition (1999), the learned authors, Margaret Brazier and John Murphy, explained the current position, at page 52, thus:
“Any goods can be the subject matter of conversion. Although cheques are of value only as choses in action, the Courts have satisfied the demands of commercial convenience by allowing the full value represented by them to be recovered in actions for conversion. So, where a banker has not handled actual cash or notes but has merely made the appropriate entries by way of credit or debit balances, the Courts will treat the conversion as being of goods, that is of the piece of paper, the cheque, under which the money was transferred, and the value of the goods converted as being the sum represented by the cheque. This doctrine, which is certainly applicable to all negotiable instruments, makes substantial inroads on any possible rule, traceable to the former fiction of losing and finding, that conversion does not lie in respect of rights in intangible property. But this is not the limit of the doctrine; in Bavins Junr and Sims v London and South Western Bank

(1900) 1 QB 270, all the judges in the Court of Appeal thought that the full value of a non-negotiable document evidencing a debt could be recovered in an action for conversion. It would seem that whenever a particular intangible right is represented in the ordinary course of business by a special written instrument, even though not negotiable, the value of the right is recoverable in an action for conversion of the instrument. So, a life insurance policy or a guarantee may be converted.”

ONCA 94 (CanLII), Teva Canada Ltd Vs TD Canada Trust & Bank of Nova Scotia (2017) 2 SCR 317.

The lower Court rightly found that the Appellant did not lead any credible evidence to dislodge the case of the Respondent that it did not open the account through which the cheques were cleared and paid out and that the account was opened in its name and operated without its instructions, lawful authority and/or mandate. The first contention of Counsel to the Appellant against the finding of the lower Court on conversion, i.e., that the proceeds of the cheques claimed by the Respondent amounted to money in a bank, an intangible asset which cannot be the subject of conversion, is totally misconceived.

The second contention of Counsel to the Appellant was in respect of the defence of contributory negligence which he said was ignored by the lower Court. The law is that the tort of conversion is one of strict liability, and accordingly, it is no defence that the wrongful act was committed in all innocence – Boma Manufacturing Ltd Vs Canadian Imperial Bank of Commerce supra, Teva Canada Ltd Vs Bank of Montreal supra,

Teva Canada Ltd Vs TD Canada Trust & Bank of Nova Scotia supra. In the case of State of Nebraska Vs Omaha National Bank, 59 Neb. 483, 493-970 (Neb. 1970), the Supreme Court of Nebraska made the point thus:
“…The effect to be given to the intention of the defendant in determining whether he has been guilty of a conversion, is a point upon which authorities appear to be in irreconcilable conflict. Some cases assert, without qualification or limitation, that the intent of the wrong-doer is altogether immaterial, while others declare in general terms that innocence of intent relieves him from responsibility for what would, under other circumstances, be an actionable wrong. The generally accepted doctrine, however, is that every act of control or dominion over property without the owner’s authority, and in disregard and violation of his rights, is, in contemplation of law, a conversion. It is not the advantage accruing to the defendant from the act, nor the motives inducing it, but the substantial injury inflicted on the plaintiff which, ordinarily, constitutes the gravamen of the action. An early expression of this view is found in a suit for conversion brought against a

clerk who had received goods from his master’s agent and had sent them abroad to his master, in ignorance of the fact that they were the plaintiff’s property. Lord Ellenborough, delivering judgment in favor of the owner of the goods, said:
‘The only question is whether this is a conversion in the clerk, which undoubtedly was so in the master. The clerk acted under an avoidable ignorance and for his master’s benefit when he sent the goods to his master, but nevertheless his act may amount to a conversion; for a person is guilty of a conversion who intermeddles with my property and disposes of it; and it is no answer that he acted under authority from another – who had himself no authority to dispose of it. And the Court is governed by the principle of law, and not by the hardship of any particular case. For what can be more had than the common case in trespass, where a servant has done some act in assertion of his master’s right, that he shall be liable, not only jointly with his master, but if his master cannot satisfy it, for every penny of the whole damage.’ See Stephens v. Elwall 4 Maule & S. 259.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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This very fact of the liability for the tort of conversion being strict, means that the defence of contributory negligence is not available to a person liable in conversion – Boma Manufacturing Ltd Vs Canadian Imperial Bank of Commerce supra, Teva Canada Ltd Vs Bank of Montreal supra, Teva Canada Ltd Vs TD Canada Trust & Bank of Nova Scotia supra. In Lloyd’s Bank Ltd Vs E. B. Savory & Co (1933) A.C 201, Lord Wright opined that “in an action for conversion, it is an immaterial averment that the conversion was only possible because of want of ordinary prudence on the part of the true owner” of the goods. In Wilton Vs Commonwealth Trading Bank of Australia (1973) 2 NSWLR 644, Samuels J, commented that “mere carelessness on the part of the owner of property, even though it may facilitate the fraud which has placed the property ultimately in the hands of a third person, is not effective to divest the true owner of his right to recover his goods.” In Ligon Vs EF Hutton & Co, 428 S.W.2d 434 (Tex. App. 1968), the Court of Appeals of Texas made the point thus:
“Appellants also contend that to affirm this

judgment would permit the plaintiff to recover for its own negligence and that ‘any contributory negligence bars recovery by a plaintiff.’ Especially is this true, say the appellants, when it is considered how blameless and free of negligence they were. We do not agree with this contention. This is not a suit involving negligence. It is a conversion suit, and in such a case it is no defense that the defendant was not negligent, or that the plaintiff was negligent, or that the defendant acquired the plaintiff’s property through the plaintiff’s unilateral mistake, or that the defendant acted in complete innocence and perfect good faith.”
The defence of contributory negligence was not opened to the Appellant in the instant case and thus its plea and the evidence led thereon were immaterial. The second contention of Counsel to the Appellant was also not well founded.

The third contention was in respect of the non-fulfilling of the ingredient of “demand and refusal” by the Respondent in a claim in tort of conversion. It is correct as stated by the Counsel to the Respondent that this issue was neither raised nor

canvassed by the Appellant in the lower Court either on the pleadings or in the evidence. Counsel to the Appellant contended that the issue was canvassed by the Appellant in the final written address. It is trite that parties are not allowed to raise issues of facts in the address of their Counsel which were not raised or agitated on the pleadings as address of Counsel does substitute for pleadings – Buraimoh Vs Bamgbose (1989) All NLR 669, Okwejiminor Vs Gbakeji (2008) 5 NWLR (Pt 1079) 172, Ayanwale Vs Odusami (2011) LPELR-8143(SC). The issue was not pronounced upon by the lower Court in the judgment.

It is trite law that an appellate Court determines the disputes of parties and arrives at the conclusion basically on the printed record of what transpired at the lower Court. It is trite that the Courts are bound by the pleadings of the parties and an appellate Court should also not allow a party to canvass on appeal an issue that was not raised by the party on his pleadings before the lower Court – First Bank of Nigeria Plc Vs Sangonuga (2007) 3 NWLR (Pt 1021) 230, Akpan Vs Udoh (2008) 3 NWLR (Pt 1075) 590, Afolabi Vs Western Steel Works Ltd

(2012) 17 NWLR (Pt 1329) 286, Julius Berger (Nig) Plc Vs Ogundehin (2014) 2 NWLR (Pt 1391) 388. An appellant therefore is only entitled to contest the judgment of a trial Court on the issues properly raised before the lower Court and pronounced upon by that Court. An appellant cannot contest an appeal on an issue not raised in the lower Court and he cannot set up a new case on appeal; he must be consistent in stating his case – Aiyeola Vs Pedro (2014) 13 NWLR (Pt 1424) 409, Ekweozor Vs Registered Trustees of Saviour’s Apostolic Church of Nigeria (2020) LPELR 49568(SC). This point was succinctly made by the Supreme Court in the case of Idufueko Vs Pfizer Products Ltd (2014) 12 NWLR (Pt. 1420) 96 at 122 thus:
“It is trite law that an issue which is not raised, argued and pronounced upon by a trial Court, cannot be validly raised as a ground of appeal or as issue for determination before the appellate Court, as such issue or argument made thereon are not competent and therefore go to no issue.”

The option opened to a party who desires to raise on appeal an issue that was not canvassed before the lower Court is to seek leave of this

Court to do so. Where no leave is sought and the issue is raised by the party, the issue will be incompetent and this Court will have no jurisdiction to entertain same –Awusa Vs Nigerian Army (2018) LPELR 44377(SC), Jibrin Vs Federal Republic of Nigeria (2018) 13 NWLR (Pt 1635) 20, Mohammed Vs Federal Republic of Nigeria (2018) 13 NWLR (Pt 1636) 229, Osho Vs State (2018) 13 NWLR (Pt 1637) 474. There is nothing on the records showing that the Appellant sought for and obtained the leave of Court to raise this present contention in this appeal. The issue is thus not proper in this appeal.

Going forward and assuming that the issue was properly raised, it is correct that the usual method of proving that a detention of property is adverse is to show that the claimant demanded the delivery of the chattel, and that the defendant refused or neglected to comply with the demand – Ihenacho Vs Uzochukwu (1997) 2 NWLR (Pt 487) 257. However, this is not the only way. In Kuwait Airways Corporation Vs Iraqi Airways Company (2002) UKHL 19, the House of Lords held that to constitute conversion, detention must be adverse to the owner, excluding him from the

goods, and it must be accompanied by an intention to keep the goods and that whether the existence of this intention can properly be inferred depends on the circumstances of the case and further that though a demand and refusal to deliver up the goods are the usual way of proving an intention to keep goods adverse to the owner, this is not the only way. Thus, it has been held that when the circumstances (circumstantial evidence) are sufficient to prove the conversion, demand and refusal are superfluous. In American Surety Co., of New York Vs Baker, 172 F.2d 689 (4th Cir. 1949), where plaintiff had knowledge that hogs allegedly converted had been killed and the products of the hogs sold, it was held that it was not necessary for plaintiff to make a futile demand for the hogs in order to establish a conversion.
Similarly, in Porter Vs Alexander, 141 S.E. 343 (N.C. 1928), the Supreme Court of North Carolina held that where in an action for conversion, the plaintiff’s property has been taken and converted by the defendant, and converted into money and used by it, it is not required that a demand for its value should have been made before the commencement

of the action. Again, inTrustees of University of North Carolina Vs State National Bank of Raleigh 3 S.E. 359 (N.C. 1887), the Court held that in the case of a conversion by wrongful taking of a chattel, it not necessary to prove demand and refusal and so the wrongful assumption of the property and of the right of disposing of it, may be conversion in itself, and render a demand and refusal necessary. In Schmidt Vs Cowen Transfer & Storage Co 463 P.2d 445 (Colo. 1970), the Supreme Court of Colorado stated in an action for conversion of goods held under a lawful lien for storage charges, demand for return of goods is not essential where conversion is otherwise shown or where demand would be unavailing.
In the instant case, the evidence led by the Respondent through its witness and through the witness of the Appellant under cross examination, is unequivocal on the clearing of the proceeds of cheques belonging to the Respondent into an account in Appellant Bank and on the payment out of the said proceeds to persons other than the Respondent, without the Respondent’s instruction, authority or mandate. The tort of conversion was thus established

without a need of the Respondent first having to make a demand and the Appellant refusing the demand. The issue of demand and refusal is thus totally irrelevant in the circumstances of this case. The third contention of Counsel to the Appellant against the finding of the lower Court on conversion is also totally misconceived.]

The Appellant has not given this Court any reason to tamper with the finding of the lower Court on conversion. The first issue for determination is resolved in favour of the Respondent.

Issue Two
Whether the lower Court breached the principles on the award of damages as to this Court interfering with the damages awarded in favor of the Respondent for conversion.

In deliberating on the claims of the Respondent for damages, the lower Court stated in the judgment thus:
“… The Claimant has stated in paragraph 6 in its Statement of Claim that the Defendant paid out money rightfully belonging to it totaling N2 Million … and they demanded for this sum together with damages but the Defendant refused to pay.
In paragraph 9, the Claimant has gone on to highlight the Particulars of Special damage

as being proceeds of cheques totaling N2 Million … issued by Reckitt Benckisser Nigeria Plc in or about December 2010 payable to the Claimant. The Claimant has therefore duly pleaded and particularized its claim for special damages.
I will separate the Claimant’s claim for special damages and general damages. With regards to special damages of N2 Million … claimed, there is credible evidence before the Court wherein DW1 during cross examination affirmed that the sum of N2 Million … was paid in and out of the Opebi account. This evidence has remained unchallenged …
I hold that the Claimant has been able to prove this, especially as there has been no evidence produced by the Defendant to disprove the fact that the N2 Million … belonging to the Claimant has been denied it. During a trial when all the evidence, by whosoever introduced, is before the Court, the party who is expected to prove a fact does not do so, then decision must inevitably be against the party who does not so prove the said fact or facts. I hold therefore that the Claimant is entitled to the award of N2 Million … being claimed by it as

special damages.
Now, we come to general damages. General damages are losses which flow naturally from the Defendant’s act. The Court is guided by the opinion and judgment of a reasonable man…
… while I agree that the Claimant may have suffered damages in this case as a result of loss of their money and a damage to their reputation with some of their customers, I do not agree that the claim of N100 Million … is justified. I therefore award the sum of N1 Million … to the Claimant for the general damages suffered by it.”

It is now trite that an appellate Court does not ordinarily alter or interfere with an award of damages made by the lower Court except where the award is shown to be either manifestly too high or manifestly too low or where it was based on a wrong principle. The award of damages is at the discretion of the trial Court. An appellate Court will not interfere with an award of damages by a trial Court only because it is inclined to make a different award. In order to justify interference with the trial Court’s award of damages, the appellate Court must invariably be satisfied that:

(i) the trial Court acted upon wrong principle of law or under a mistake of law; (ii) the award was arbitrary; (iii) there has been an element of wrong exercise of discretion; or (iv) injustice could occur if the appellate Court does not interfere – Ighreriniovo Vs SCC Nigeria Ltd (2013) 10 NWLR (Pt 1361) 138, First Bank of Nigeria Vs Attorney General, Federation (2018) 7 NWLR (Pt 1617) 121, Nigeria Communications Commission Vs Motophone Ltd (2019) LPELR 47401(SC), Abayomi Vs Saap-Tech (Nig) Ltd (2020) 1 NWLR (Pt 1706) 453.

Counsel to the Appellant challenged the award of damages made by the lower Court on the ground of the failure of the Respondent to properly plead the claim for damages and to specifically prove the claims. The Respondent claimed for the sum of N102 Million as special and general damages and it broke down the claim into N2 Million as special damages and N100 Million as general damages in paragraph 9 of its pleadings. It is elementary that there is a distinction between general and special damages as the former lies in the fact that the Court is entitled to presume or infer the injury as the plaintiff is not under any obligation

to set out the particulars of general damages and specifically prove them while special damages are of a different kind being that which has to be specifically pleaded and proved – Incar (Nig) Ltd Vs Benson Transport Ltd (1975) LPELR 1512(SC), Shell Petroleum Development Co (Nig.) Ltd Vs Tiebo VII (2005) 9 NWLR (Pt 931) 439, Akinkugbe Vs Ewulum (2009) 6 MJ.S.C. 134 at 146, Mekwunye Vs Emirate Airlines (2019) LPELR 46553(SC).

The basis of the law requiring the giving of particulars of special damages is to allow the other party know the case against him so as to eliminate any element of surprise. The obligation to particularize arises because the nature of loss is not necessarily unusual but because a plaintiff who has had the advantage of being able to base his claim upon a precise calculation must give the defendant access to facts which make such calculation possible – Marine Management Associates Inc Vs National Maritime Authority (2012) 18 NWLR (Pt 1333) 506. The particularity of pleading required of special damages is such that the losses can be exactly known and accurately measured – Adim Vs Nigerian Bottling Co. Ltd (2010) 9 NWLR (Pt 1200) 543.

Thus, once the pleadings of a plaintiff contains clear particulars of the nature of loss and the amount of same in such a manner that the precise calculation of the loss is possible, he would be said to have satisfied the requirement of strictly pleading special damages – Green Fingers Agro-Industrial & Enterprises Ltd Vs Sahel Agricultural Co. Ltd (2014) LPELR 22332(CA). In the present case, the Respondent pleaded the particulars of its claim for special damages as “proceeds of cheques totaling N2 Million issued by Reckitt Benckiser Nigeria Plc in or about December 2010 payable to the Claimant as balance of fees for professional services rendered.” This pleading was clear, precise and specific on the amount claimed and on how the amount claimed was arrived at. The Respondent thus complied with the requirement of strict pleading of the special damages claimed.

The rule that requires anyone asking for special damages to prove strictly that he did suffer such special damages as he claimed does not mean that the law requires a minimum measure of evidence or that the law lays down a special category of evidence

required to establish his entitlement to special damages. What is required is that the person claiming should establish his entitlement to that type of damages by credible evidence of such a character as would suggest that he is indeed entitled to an award under that head, otherwise the general law of evidence as to proof by preponderance or weight, usual in civil cases operates – Oshinjinrin & Ors Vs Alhaji Elias & Ors (1970) 1 All NLR 158 at 161, Arabambi Vs Advance Beverages Industries Ltd (2005) 19 NWLR (Pt 959) 1, Vinz International Nigeria Ltd Vs Morohundiya (2009) 11 NWLR (Pt 1153) 562, Ajigbotosho Vs Reynolds Construction Co., Ltd (2018) LPELR 44774(SC).

The Respondent’s sole witness testified in proof of the claim for special damages as pleaded. The witness of the Appellant admitted under cross examination that the proceeds of the cheques of the Respondent cleared and paid out by the Appellant, and which the lower Court had found to have been converted, was in the sum of N2 Million. This evidence supported and affirmed the claim of the Respondent for special damages in the sum N2 Million being the proceeds of the cheques

converted by the Appellant. It is an accepted principle that although the claimant succeeds on the strength of his evidence, where, however, the evidence of the defendant itself supports the case of the claimant and contains evidence on which the claimant may rely, then provided that evidence is credible and accepted by the Judge during the assessment of the evidence adduced, the claimant shall be entitled to the evaluation of the evidence in his favour, so as to increase the strength of his case – Nwankwo Vs Ofomata (2009) 11 NWLR (Pt 1153) 496, Iroagbara Vs Ufomadu (2009) 11 NWLR (Pt 1153) 587, Nwokidu Vs Okanu (2010) 3 NWLR (Pt 1181) 362, Gbadamosi Vs Okege (2011) 3 NWLR (Pt 1233) 175. Thus, where a witness called by a defendant gives evidence which supports the claimant’s case and the defendant does not treat him as a hostile witness, the evidence of such witness must be treated as an admission upon which the claimant is entitled to rely as further reinforcement of his case – Okafor Vs Idigo (1984) 1 SCNLR 481, Adebambo Vs Olowosago (1985) 3 NWLR (Pt 11) 207, Akintola Vs Solano (1986) 2 NWLR (Pt 24) 598, Alikor Vs Ogwo (2010) 5 NWLR (Pt 1187) 281.

The lower Court was thus correct when it found that the Respondent made out a case of entitlement to the sum of N2 Million as special damages.

With regards to the claim for general damages, it is pertinent to re-iterate herein that in the award of general damages, a wide spread power is given to the Court comparable to the exercise of discretion of the Court. It is enormous and therefore far-reaching. General damages are awarded to assuage such a loss, which flows naturally from the defendant’s act. It needs not be specifically pleaded. It suffices if it is generally averred. They are presumed to be the direct and probable consequence of that complained of – Dumez Vs Ogboli (1972) 2 SC 196, Wasa Vs Kalla (1978) 3 SC 21, Federal Mortgage Finance Ltd Vs Ekpo (2004) 2 NWLR (Pt. 865) 100 at 132 and Elf Petroleum Vs Umah (2018) 10 NWLR (Pt 1628) 428. The Respondent pleaded that it suffered a loss of reputation and loss of business by reason of the action of the Appellant. The Respondent witness testified in proof of these facts at the trial. The evidence of the witness on the point was not directly countered or disparaged under

cross-examination nor was it met by any contrary evidence.

The lower Court believed the evidence of the witness and found that the Respondent led evidence in support of its loss of reputation to warrant the award of general damages. Counsel to the Appellant suggested that the lower Court was wrong in believing the oral evidence of the Respondent’s witness as same was not supported by documentary evidence. It is settled that it is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and weighed them before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse – Balogun Vs Agboola (1974) 10 SC 111, Woluchem Vs Gudi (1981) 5 SC 178 at 197, Shingi Vs Bandado (2018) LPELR 46549(CA), MTN Vs Corporate Communication Investment Ltd (2019) LPELR 47042(SC).

In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Edwin Vs State (2019) 7 NWLR (Pt 1672) 551, Ayinde Vs State (2019) 12 NWLR (Pt 1687) 410, State Vs Gbahabo (2019) 14 NWLR (Pt 1693) 522, Tope Vs State (2019) 15 NWLR (Pt 1695) 289. An appellate Court will only interfere with the evaluation of evidence carried out by a lower Court where an appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. Where an appellant fails to do so, an appellate Court has no business interfering with the findings of the lower Court – Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No. 2) (2014) 1 NWLR (Pt. 1388) 332 at 397-398, Busari Vs State (2015)

5 NWLR (Pt 1452) 343 at 373, Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92.

Looking through the entire arguments of Counsel to the Appellant against the finding made by the lower Court that the Respondent led evidence to prove loss of reputation, his contention was more of a complaint on the documentary evidence that the Respondent did not produce, rather than about the plausibility and credibility of the oral evidence led by the Respondent’s witness, and which evidence was not challenged under cross examination. This Court must say that it has not been given any reason to tamper with the finding of the lower Court on the point. The lower Court awarded general damages in the sum of N1 Million for the loss of reputation.

Counsel to the Appellant also contended that the award of general damages in addition to special damages amounted to double compensation. It is trite law that in a claim of damages for conversion, the measure of damages is generally the value of the chattel or goods at the time of the conversion together with any consequential damages flowing from the conversion

– Stitch Vs Attorney General, Federation (1986) 12 SC 373 at 422-423, Ordia Vs Piedmont (Nig) Ltd (1995) 2 NWLR (Pt 379) 516, Civil Design Construction (Nig) Ltd Vs. SCOA (Nig) Ltd (2007) 2 SC 195. In Ezeani Vs Ejidike (1964) LPELR 25144(SC), the Supreme Court said thus:
“The measure of damages in an action in tort is not the same as in an action in contract, but the rule against double compensation remains the same. In an action for conversion, it is well settled that the normal measure of damages is the market value of the goods converted, though in certain cases, of which this is not one, the plaintiff may be able to recover damages for consequential losses, as long as damage is not too remote.”
This means that an award of both special damages and general damages in an action for conversion is allowed and the award of both, in deserving situations, does not amount to double compensation. This Court has not been given any basis for interfering with the damages awarded by the lower Court. The second issue for determination is resolved in favour of the Respondent.

In conclusion, this Court sees no merit in the appeal and same is

hereby dismissed. The judgment of the High Court of Lagos State delivered in Suit LD/316/2013 on the 2nd of July, 2018 by Honorable Justice A. A. Akintoye is affirmed. The Respondent is awarded the cost of the appeal assessed at N50,000.00. These shall be the orders of the Court.

IGNATIUS IGWE AGUBE, J.C.A.: I had the advantage of reading the draft of Lead Judgment of my brother. HON. JUSTICE HABEEB ADEWALE ABIRU, JCA and I endorse the reasoning and conclusion that the appeal lacks merit and same is dismissed. I abide by the order as to costs.

AMINA AUDI WAMBAI, J.C.A.: My learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU, JCA obliged me the draft copy of the judgment. Having gone through same, I agree with the conclusion that there is no merit in the appeal. It deserves to be and it is hereby dismissed. The judgment of Hon. Justice A. A. Akintoye of the Lagos State High Court delivered on 2/7/2018 is affirmed. I abide the order as to cost therein.

Appearances:

M. Kotoye For Appellant(s)

Osita Mbamalu with him, I. O. Ogunye For Respondent(s)