NUTRI FOOD & BEVERAGES LIMITED v. ACCESS BANK PLC
(2019)LCN/12908(CA)
In The Court of Appeal of Nigeria
On Monday, the 25th day of March, 2019
CA/L/504/2014
RATIO
ACTION: WHERE AN ACTION TO DETINUE CAN SUCCEED
“This made it wrongful and the silence by the Respondent was enough to amount to a withholding having paid off the loan. See the case of J.E. OSHEVIRE LTD V TRIPOLI MOTORS (supra) on what must be established to succeed in a claim of/for detinue: “The gist of liability in detinue is the wrongful detention of the plaintiff’s chattel by the defendant after the plaintiff has made a demand for its return. Without proof of wrongful detention on the part of the defendant, a claim in detinue cannot arise. A detention is not wrongful unless the defendant’s possession is adverse. Accordingly for an action in detinue to succeed, the defendant must have shown a definite intention to keep the chattel in defiance of the plaintiff’s rightful claim thereto and this is usually manifested by proving a demand by the plaintiff and a refusal by the defendant to return or deliver the chattel to the plaintiff. When, however, the refusal is conditional, a case of withholding the chattel against the will of the plaintiff is not necessarily established, provided the condition is reasonable and not a mere device to put off the plaintiff.”
COURT AND PROCEDURE: PLEADING OF LAW
“Pleading law obscures or conceals the facts of the case; raising a point of law defines or isolates an issue or question of law on the facts as pleaded. Scrutton, LJ., put it in another way. He observed in Lever Brothers Ltd., and Ors v. Bell and Anor (1931) 1 KB 557. ‘The practice of the Courts is to consider and deal with the legal result of pleaded facts, although the particular result alleged is not stated in the pleading.’ The inferences of law to be drawn from the pleaded facts need not be stated in pleadings. Thus, if the material facts are alleged, it is not necessary to plead an implied warranty. (Per Denning, L.J., in Shaw v. Shaw (1954) 2 Q.B. 429 page 441). (See also The Supreme Court Practice 1985 Volume 1 pages 261-262).” Similarly in Re: Vandervell’s Trusts No. (2) (1974) 3 All ER 205 at 213 Lord Denning M.R. said: “It is sufficient for the pleader to state the material facts. He need not state the legal result. If, for convenience, he does so, he is not bound by, or limited to, what he has stated. He can present, in argument any legal consequence of which the facts permit. The pleadings in this case contained all the material facts.” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
COURT AND PROCEDURE: STATEMENT OF CLAIM
“It is trite that the statement of claim reveals the cause of action and the reliefs claimed. See AKILU V FAWEHINMI (supra): “Cause of action has been held to mean every fact which is material to be proved to entitle the plaintiff to succeed, or all those things necessary to give a right to relief in law or equity. See Bello v. A-G Oyo State (1986) 5 N.W.L.R. (Pt.45) 828, Letang v. Cooper (1965) 1 Q.8. 232 at p. 242.” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
NUTRI FOOD & BEVERAGES LTD Appellant(s)
AND
ACCESS BANK PLC Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.(Delivering the Leading Judgment):
This is an appeal against the decision of the High Court of Lagos State delivered on the 30th day of January, 2014 by Justice K.A. JOSE dismissing the claimant/Appellant?s claim for damages after making a finding that the defendant/Respondent was guilty of breach of contract. Aggrieved with the decision, the Appellant filed a Notice of Appeal which was amended on 12th February, 2018.
The facts of the case in summary is that the Appellant took an overdraft facility from the Respondent and liquidated same in 2008 when it was Intercontinental bank plc but later merged/acquired and changed to Access bank plc.
A legal mortgage was executed using the Appellant?s Certificate of Occupancy, and when the Appellant requested for a return of the document having paid off the facility, the Respondent delayed despite repeated demands in writing till he filed the claim at the lower court. The Respondent released the certificate on 22/3/11. The Appellant claimed as follows at the lower court:
i. A declaration that the defendant is in breach of its contract with the claimant by failing to re-deliver the said Certificate of Occupancy deposited by the claimant to secure the overdraft facility granted the claimant by the defendant and which said facility has been fully liquidated together with the accrued interest.
ii. An order directing the defendant to return the said Certificate of Occupancy to the claimant forthwith.
iii. Damages in the sum of N50,000,000.00 (fifty million naira).
The lower Court found that the Appellant had proved its claim but refused the claim for damages hence this appeal.
The Appellant?s brief was filed on 22/2/18, and a reply brief filed on 19/4/2018, same was settled by Chigbo Anaenugwu, Esq., of Hedwig Attorneys with two issues wit:
1. From the pleadings of the parties and evidence led at trial, was the Appellant’s of action one founded on both contract and the tort of detinue?
2. Whether the Court below was right by refusing to award damages in favour of the Appellant?
The Respondent on their part filed a brief and cross appellant?s brief on 29/3/2018 settled by Sheni Ibiwoye, SAN and Oluwaseun A. Odeyemi, Esq., of
Bayo Ojo & Co. Three issues were distilled for determination thus:
1. Whether the learned trial judge was wrong when after considering the totality of evidence before it, held that the Appellant?s case is founded only on breach of contract and not on both breach of contract and the tort of detinue.
2. Whether the learned trial judge was wrong when it held that the Appellant did not prove the damages claimed by it.
3. Whether the learned trial judge was right when it held that the defendant/cross appellant was in breach of contract for failing to return the certificate of occupancy.
The parties issues 1 and 2 are similar though differently framed and I shall resolve them together as a single issue, while the Respondent?s issue 3 will form the basis for the cross appeal.
ISSUES 1 & 2
The Appellant?s counsel contended that from paragraphs 4, 5, 6, 7, 8, 9 and 10 of the Appellant?s amended statement of claim at page 85 and paragraphs 4 – 10 of the evidence on oath, the lower Court?s position on the claims of the Appellant was perverse. He relied on the following cases for this point: JULIUS BERGER NIG PLC V R.I. OMOGUI (2001) 6 S.C.N.J. 214 at 230; CHIEF PAUL ORDIA V PIEDMONT NIGERIA LTD (1995) 2 S.C.N.J. 175 at 181 – 182; J.E. OSHEVIRE LTD V TRIPOLI MOTORS (1997) 4 S.C.N.J. 246 at 263; JOHN EBOSEDE EMUANTHOR V THE NIGERIAN ARMY ORS (1999) 9 SCJN 52 at 58; AKILU V FAWEHINMI NO. 2 (1989) 2 NWLR (PT 102) 122 at 169.
He submitted that in law a claimant who has established a legally recognised injury cannot be turned back on the ground that he has not satisfied or has wrongly stated the head of law under which he is seeking a remedy. He cited S.P.D.C. NIG V OKONEDO (2008) 9 NWLR (PT 1091) 83 at 114.
Coupled with this issue is issue two which is closely connected, it dwells on the question whether the lower Court rightly refused to award damages in favour of the Appellant. Appellant counsel contended that the lower Court committed grave error by failing to follow the principles of law established in a plethora of authorities as a guide in assessing the measure of damages in tort of detinue and that it occasioned a miscarriage of justice. He relied on P.I.P.C. SECURITY LTD V MR GEORGE X. VLACHOS & ANOR (2008) 4 NWLR (PT 1076) 1; N.A.C.B. LTD V PETER ACHAGWA (2010) 11 NWLR (PT 1205) 339, ENTERPRISE BANK LTD V AROSO (2014) 3 NWLR (PT 1394) 256 at 300.
Counsel submitted that the Appellant has satisfied the requirements of the law by adducing sufficient evidence that the Respondent refused to release the document despite repeated demands which remained unchallenged. He contended that the lower Court ought to have considered that the Appellant is in business to make profit and would have suffered substantial financial loss as a result of the wilful detention of its title documents and that the lower Court erroneously held that it was a spent issue which had become an academic exercise and refused to consider the relief.
Appellant?s counsel submitted that the indebtedness was liquidated on 26th January, 2010, and demand was made for the release of the certificate of occupancy on 3rd March, 2010 and that it was eventually released on 22nd March, 2011 over a year after the demand and two months after the matter had been filed in Court.
The Appellant counsel submitted quite strongly that the claim at the lower Court was for wilful refusal of the Respondent to return the said certificate of occupancy on demand and that this alone entitled him to damages.
On Exhibit D2 (that is the Respondent?s letter of 18th March, 2011 addressed to the Appellant), Appellant counsel submitted that it was made two months after the Respondent became aware of the pendency of the suit at the lower Court and that the lower Court ought not to have acted on it as it was made during the pendency of the action and in breach of Section 83(3) of Evidence Act and therefore was inadmissible. He relied on ABDUL V BENUE STATE UNIVERSITY (2003) 16 NWLR (PT 845) 59 at 81-82; IPINLAIYE V OLUKOTUN (1996) 6 NWLR (453) 148 at 167; ALADE V OLUKADE (1976) 2 SC 183.
Counsel for the Appellant further submitted that even if it is assumed that relief 2 was not necessary, owing to the return of the document, the lower Court ought to have considered the delay occasioned by the Respondent?s refusal to return same on demand and which delay caused the Appellant both pecuniary and non-pecuniary loss. He relied on AMAECHI AKUDO V GUINESS NIG PLC (2012) 15 NWLR (PT 1322) 150 at 171; EMIRATE AIRLINE V NGONADI (NO. 1) (2014) 9 NWLR (PT 1413) 429 at 500, paras C-E; M.M.A.INC V N.M.A. (2012) 18 NWLR (PT. 1333) 506 at 550-551, paras G-A; S.T.B.LTD V ANUMNU (2008) 14 (PT. 1106) 125 at 154-155; CHIADI V AGGO (2018) 2 NWLR (PT. 1603) 175.
The Respondent counsel on the other hand submitted that the lower Court was right in its holding. He referred to the amended statement of claim in paragraphs 13, 14, 15 and 16 where the Appellant averred that the Respondent was under a contractual duty to deliver its certificate of occupancy upon demand after liquidation and a failure to so do amounted to a breach of its duty and made it suffer loss and sustained damages and that in paragraph 17 of the amended statement of claim, the Appellant merely claimed 3 reliefs, and submitted that it is clear that the Appellant did not make any claim for detinue whether as ancillary or main relief or as an alternative. He relied on ATIVIE V KABELMETAL (NIG.) LTD (2008) 10 NWLR (PT. 1095) 399 which he submits is similar to the facts of the case at hand; OSAMWONYI V OSAMWONYI (2011) 8 NWLR (PT 1249), 328; EKPENYONG & ORS V NYONG &ORS (1975) NSCC VOL 9 PG 28; OGUNJEMILA V AJIBADE (2010) 11 NWLR PT 1206, 559 at 584; amongst other cases.
7Respondent counsel submitted that the claim for detinue arose for the first time in the Appellant?s written addresses filed on 24/10/13 and that it is trite that an address cannot be a substitute for pleadings or hard evidence. He referred to UNITY BANK PLC V OWIE (2011) 5NWLR (PT 1240) 273 at 288.
He further stated that it is not enough that paragraphs 4 – 10 of the claim are on averments of tort of detinue. That such averments and evidence must also relate to the reliefs claimed. He contended that the Appellant did not seek for any relief in the tort of detinue and that the Court would have exceeded its jurisdiction to grant same.
He referred to the evidence of PW1 at page 114 of records and submitted that the Appellant failed to prove the damages of N50million and that the damages did not flow naturally from the breach.
On the second issue, the Respondent counsel submitted that the Appellant did not prove the damages claimed and that it did not flow naturally from the breach. That the Appellant did not prove that such damages was incurred in direct consequence of the alleged breach let alone that it arose out of conjecture and speculation.
He referred to ADEKUNLE V ROCKVIEW HOTEL LTD (2004) 1 NWLR (PT. 853) 161 at 175 ? 176, paras H-B; SMITHKLINE BEECHAM PLC V FARMEX LTD (2010) 1 NWLR (PT. 1175) 285 at 306, paras C-D.
Respondent counsel submitted that the cases cited by the Appellant were inapplicable to the situation at hand because the Appellant did not claim any relief in tort of detinue unlike in those cases.
On the effect of Section 83(3) of the Evidence Act, counsel submitted that the issue did not form any ground of appeal.
Appellant counsel in reply reiterated the point that the Appellant need not prove general damages unlike special damages which requires strict proof and referred to TAO & SONS IND. LTD V GOV. OYO STATE (2011) 6 NWLR (PT 1242) 1; ELIOCHIN NIG LTD V MBADIWE (1986) 1 NWLR (PT 14) 47 at 65; HADLEY V BAXENDALE (1854) 9 EXCH. 341; amongst other cases.
RESOLUTION
In resolving these issues it is imperative that I reproduce the statement of claim of the Appellant herein. It is trite that the statement of claim reveals the cause of action and the reliefs claimed. See AKILU V FAWEHINMI (supra):
“Cause of action has been held to mean every fact which is material to be proved to entitle the plaintiff to succeed, or all those things necessary to give a right to relief in law or equity. See Bello v. A-G Oyo State (1986) 5 N.W.L.R. (Pt.45) 828, Letang v. Cooper (1965) 1 Q.8. 232 at p. 242.”
Furthermore in CAPITAL BANCORP LTD V SHELTER SAVINGS AND LOANS LTD & ANOR (2007) LPELR – 828(SC) it was held that:
“A cause of action arises from circumstances containing different facts that give rise to a claim that can be enforced in Court of law, and thus lead to the right to sue a person responsible for the existence of such circumstances. There must therefore be a wrongful act of a party (i.e. the party sued), which has injured or given the plaintiff a reason to complain in a Court of law of consequent damage to him. See Labode v. Otubu (2001) 7 NWLR (Pt. 712) page 256, and AG Federation v. AG Abia State (2001) 11 NWLR (Pt. 725) page 689.”
The relevant paragraphs of the amended statement of claim are reproduced below:
1. The Claimant is a limited liability company dully incorporated in Nigeria and carries on business on No 28 Mortune avenue, Valley Estate, off Abeokuta Expressway Ogun State.
2. The Defendant is a public liability company carrying on business of Banking with its head office at Plot 999c Danmole Street, Victoria Island, within the jurisdiction of this Honourable Court.
3. The Claimant has been the Defendant?s customer for more than 5 years at their Ogba Branch Ikeja.
4. The Claimant avers that sometime in 2008, the Defendant granted it an overdraft facility of N30,000.000 (Thirty Million Naira only) which said facility was secured by a deposit of its certificate of occupancy in respect of its factory situate at Ota Ogun State.
5. The Claimant has fully liquidated the overdraft facility together with the accrued interest but yet to recover the said certificate of occupancy deposited to secure the facility inspite of repeated demands.
6. The Claimant avers that on the 31st day of August 2010, its Solicitors made a formal demand to the Defendant to release the said certificate of occupancy to the Claimant. The said letter of 31st August, 2010 will be founded upon at the trial.
7. By its letter of 23rd September, 2010, the Defendant responded to the Claimant’s promised to revert to the Solicitors shortly with the outcome of their investigation. The said letter of 23rd September, 2010 will be founded upon at the trial.
8. The Claimant avers that its Solicitor further wrote the Defendant on 12th October, 2010 complaining that their demand had not been acceded to and which letter received no response at all. The Claimant will at the trial find and rely on its Solicitors letter of 12th October 2010.
9. The Claimant avers that the Defendant?s failure to respond to it?s Solicitor?s letter of 23rd September, 2010 necessitated a further demand letter dated 30th November, 2010 to the Defendant by its solicitors. The Claimant will at the trial find and rely on its Solicitors letter dated 30th November, 2010.
10. The Claimant avers that inspite of repeated demands the Defendant has failed, refused and/or neglected to release the said Certificate of Occupancy to it.
11. The Claimant avers that it had instructed Estate Agents in the area to source for buyers for the factory and all the prospective buyers have been demanding to site the original copy of the certificate of occupancy.
12. The Claimant avers that it has suffered heavy financial loss as a result of the wilful refusal or failure on the part of the Defendant to release the said certificate of occupancy to it. The Claimant will at the trial find and rely on offers made by 2 prospective purchasers of the factor dated 23rd August, 2010 and 24th October, 2010.
13. The Claimant avers that the Defendant as a financial institution is under a contractual obligation to redeliver the said certificate of occupancy deposited as security for the facility that has since been liquidated but has failed to do so inspite of repeated demands.
14. The Claimant will at the trial contend that the Defendant owes it a duty to redeliver the said Certificate of occupancy on demand and failure to do so after liquidation of the said facility amount to a breach of its duty as bankers.
15. The Claimant further contend at the trial that its relationship with the Defendant is fiduciary and the Defendant owes it a duty of care which duty was breached by the Defendant by reason of non delivery of the said Certificate of Occupancy leading to loss of investible funds.
16. By reason of the diverse matters aforesaid, the Claimant has suffered loss and sustained damage.
17. Whereof the Claimant claims as per its Writ of Summons:
i. A Declaration that the Defendant is in breach of its contract with the claimant by failing to redeliver the said Certificate of Occupancy deposited by the Claimant to secure the overdraft facility granted the Claimant by the Defendant and which said facility has been fully liquidated together with the accrued interest.
ii. An Order directing the Defendant to return the said Certificate of Occupancy to the Claimant forthwith.
iii. General damages occasioned as a result of the breach.
Therefore paragraphs 4, 5, 6 & 7 of the statement of claim is very clear, it reveals the cause of action as an unlawful refusal of the Respondent to return the certificate of occupancy deposited for a loan having repaid the loan. This in law amounts to a claim in detinue and a breach of contract. The word detinue has not being used but the averments are on such that it discloses the cause of action for all to see.
In AUTO IMPORT EXPORT V ADEBAYO & ORS (2005) LPELR – 642 (SC), the Court had this to say on content of pleadings:
“A party’s duty is to plead relevant facts and to leave the Court to apply the law or determine the consequences in law upon the facts pleaded. In Nwadiaro v. Shell Development Co. Ltd. (1990) 5 NWLR (Pt. 150) 322 at 333-334, Kolawole JCA (of blessed memory) when confronted with a similar position observed: “The settled principle of law which is of great antiquity and which has been restated in many authoritative decisions of the Courts was stated by Farwell, L.J., thus: ‘But, as the point of pleading is of some importance and was strenuously argued, I propose to state my opinion on it. Order xix, R.4, provides that – ‘every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies …’ – i.e., the pleader must plead facts, not law, and must not plead the evidence in support of his facts.’ (See North-Western Salt Company Ltd. v. Electrolytic Alkali Co. Ltd. (1913)3 K.B. 422 at 425). There is a vital distinction between pleading law, which is not permitted, and raising a point of law in a pleading, which is permitted under Rule 1 of Order 29 aforementioned.
Pleading law obscures or conceals the facts of the case; raising a point of law defines or isolates an issue or question of law on the facts as pleaded. Scrutton, LJ., put it in another way. He observed in Lever Brothers Ltd., and Ors v. Bell and Anor (1931) 1 KB 557. ‘The practice of the Courts is to consider and deal with the legal result of pleaded facts, although the particular result alleged is not stated in the pleading.’ The inferences of law to be drawn from the pleaded facts need not be stated in pleadings. Thus, if the material facts are alleged, it is not necessary to plead an implied warranty. (Per Denning, L.J., in Shaw v. Shaw (1954) 2 Q.B. 429 page 441). (See also The Supreme Court Practice 1985 Volume 1 pages 261-262).” Similarly in Re: Vandervell’s Trusts No. (2) (1974) 3 All ER 205 at 213 Lord Denning M.R. said: “It is sufficient for the pleader to state the material facts. He need not state the legal result. If, for convenience, he does so, he is not bound by, or limited to, what he has stated. He can present, in argument any legal consequence of which the facts permit. The pleadings in this case contained all the material facts.”
Relating the above to this case, the Appellant has pleaded all relevant and material facts to the cause of action and need not plead the law. In this claim, the Appellant has joined different causes of action which is permitted in law. A claimant may join several causes of action in one suit irrespective of whether the cause of action arose from the same facts or different facts. See OWOADE V U.A.C. CO LTD 13 WACA 204; UNITED AFRICAN CO LTD V OWOADE 13 WACA 207 at 211; KHARTOUN V HOLLAND WEST AFRICA LINES & ANOR (1961) LPELR ? 25070 (SC).
Therefore, to get a total import of the pleadings, the apex Court stated in AZUBUOGU V ORANEZI & ORS (2017) LPELR ? 42669 (SC):
“It is settled that in construing pleadings, as it is with statues, the averments should be considered as a whole to gather the collective import of the pleaded facts. The trial Court’s reading of Paragraph 31 of the statement of claim in isolation, without relating the paragraph to the preceding paragraphs, not surprisingly, pushed the Court into an avoidable error. The preceding paragraphs are not only complementary to the paragraph the Court singled out and relied on in determining the objections to its jurisdiction over the suit they also explain the meaning and scope of the subsequent paragraph. See The Minister of Housing and Local Government V. Lawbert (1969) 2 NWLR 447 and Mobil Oil (Nig) Plc v. IAL 36 Inc (2000) 4 SC (Pt 1) 85, Yesuf & Anor v. Ojo & Ors (1958) vol. 7 NSCC 99 and Kraus Thompson Org v. NIPSS (2004) 17 NWLR (Pt 901) 44.”
The Appellant from the totality of his averments has a joint claim for breach of contract (wilful refusal to return the title document) and detinue. It plainly points to illegal withholding of the Appellant?s title document. Where is the justice and equity if the Appellant is given nothing? In OSUN STATE INEC & ANOR V A.C. (2010) LPELR – 2818 (SC) on whether the Court can grant a relief not claimed, the Court held that:
“It is the law even where a person has not specifically asked for a relief from a Court, the Court has the power to grant such relief as a consequential relief.”
During the evidence on oath of Chigbo Anaenugwu, Company Secretary of the Appellant company, at pages 88 – 89, in paragraphs 5, 6, 8 – 10, 12, 13 therein which is the same as the averment, the evidence which was not shaken was that after the loan was paid up the Respondent was notified and it responded that it was receiving attention. Thereafter repeated contacts/demands for the release of the document were met with silence. The Respondent?s witness Adeyemi Samuel had this to say under cross examination at page 121 of the record:
I joined the Defendants in 2007. I cannot recall the exact date when the Claimant liquidated its debt but i know it was liquidated in 2010. When a customer deposits his title documents, we keep the documents with our legal team. Exhibit D3 is the claimants account statement we keep the documents with our legal team. Exhibit D3 is the claimant?s account statement. For Exhibit d3 the claimant liquidated the indebtedness on 26/1/10. I agree that the claimant after the liquidation demanded for the return of its documents. The Defendant replied that it was investigating the claimant?s letter and promised to revert back to the claimant after investigation. Our response would have been to release the title document. We released the title documents. It was more than one year after the request that the title documents were released on 22/3/11. The documents were released two month after the claimant filed this suit.
The above is the relevant extract of the evidence on this point. He virtually admitted all. There was a demand and it took over a year of silence and after the suit was filed before the document was released. The Appellant was left in the dark as to when or whether it would be released. The Appellant is a company and it is of a commercial concern, especially when he needed to be in the clear of selling without a clear title. He was compelled to file an action.
A complete withholding of over a year amounts to detinue. Appellant had paid off the loan and incurred costs in the filing if the action. He definitely incurred something even if not specifically sought for.
Again the inability for potential buyers to sight the original title document obviously caused a lot of discomfort and anxiety. From the evidence and averment, the Appellant had proved the conditions for detinue. In that there was a demand, followed by many more and the suit was filed before a return was made and this calls for damages for withholding for no reasonable cause.
Surely it did not have to take over a year to return the title document of a customer. This made it wrongful and the silence by the Respondent was enough to amount to a withholding having paid off the loan. See the case of J.E. OSHEVIRE LTD V TRIPOLI MOTORS (supra) on what must be established to succeed in a claim of/for detinue:
“The gist of liability in detinue is the wrongful detention of the plaintiff’s chattel by the defendant after the plaintiff has made a demand for its return. Without proof of wrongful detention on the part of the defendant, a claim in detinue cannot arise. A detention is not wrongful unless the defendant’s possession is adverse. Accordingly for an action in detinue to succeed, the defendant must have shown a definite intention to keep the chattel in defiance of the plaintiff’s rightful claim thereto and this is usually manifested by proving a demand by the plaintiff and a refusal by the defendant to return or deliver the chattel to the plaintiff. When, however, the refusal is conditional, a case of withholding the chattel against the will of the plaintiff is not necessarily established, provided the condition is reasonable and not a mere device to put off the plaintiff.”
In ORDIA V PIEDMONT NIG LTD (supra) the Court on remedies available to a claimant in an action for detinue held thus:
“Nowadays it is even possible to ask for specific return of the chattel if it is still in possession of the defendant rather than its value, and damages for its detention [See for example the analysis in General and Finance Facilities Ltd VS. Cooks Cars (Romford) Ltd. (1963) 1 WLR 644, 650]. But more appropriately it is up to the plaintiff to decide which course to follow among the following: 1. value of chattel and damages for its detention. The value of the chattel is as proved at the time of judgment in trial Court and the onus is on the plaintiff to prove the value. He is also to show by evidence the damage suffered by the detention. 2. the return of the chattel and damages. In this case the judgment on proof of the detention is for the return of the chattel and damages for its retention. 3. for the return of the chattel or its value as assessed, and damages for its detention. This seems to be the best form of action for if the chattel has otherwise been removed from jurisdiction or hidden away and out of sight of the sheriff there is no alternative other than a distraint for the value of the chattel as assessed plus of course damages for its detention.”
The Appellant is the owner of the certificate of occupancy; it was detained for over a year after the facility was liquidated. A demand was made for it but the Respondent refused and ignored all further demands made, only to release it after an action for restitution was filed. It was a collateral fit for the loan and definitely as a company, the document will be very important to the Appellant.
The lower Court was wrong when she held that the claim was spent. It failed to consider the cause of action and the totality of the statement of claim and the damage caused even if it is nominal.
On the entitlement of a successful claimant in a case of detinue, see the case of OWNERS OF M/V GONGOLA HOPE & ANOR V SMURFIT CASES NIG LTD & ANOR (2007) LPELR ? 2849 (SC) where it was held thus:
“…His Lordship, continued thus: “… A plaintiff who succeeds in his case rooted in detinue is entitled to an order of specific restitution of the chattel which is adjudged to have been unlawfully detained or in default of that, its value and also damages for its detention up to the date of judgment. See (1) Oluwa Glass Co. Ltd. v. Ehinlanwo (1990) 7 NWLR (Pt. 160) 14 and Ordia v. Piedmont (Nig.) Ltd. (1995) 2 NWLR (Pt. 379) 516.”
In the light of the above, the Appellant is entitled to damages in the nature of general damages which by law requires no strict proof. It follows naturally and flows from a company wanting to sell the very asset whose title was withheld. In FIDELITY BANK PLC V KATES ASSOCIATED IND. LTD (2012) LPELR – 9790 (CA) on the basis of assessment of damages in detinue, the Court held that:
“The learned trial judge properly addressed this issue in his judgment at pages 247 to 248 of the record as follows:-
“In an action in detinue all that the plaintiff need to prove is wrongful detention of his chattel by the defendant after demand and refusal of the return of his chattel in the statement of claim. See U.B.A. LTD V. ADEMUYIWA (1999) 11 NWLR (PT 62) page 570 at page 589 PARAS F-H. This the plaintiff has successfully shown both in his amended statement of claim in paragraphs 13, 14, 15, 16, 18, and 99, statement on oath paragraph 22 and Exhibit R admitted. There is no claim for special damages, so once wrongful detention after demand is proved, as in the instant case, the plaintiff is entitled to damages for unlawful detention. See the case of KOSILE V. FOLARIN (1989) 3 NWLR (PT 107) page 1 at page 10 PARA C. P.A. OGUIGO & SONS LTD V. C.O.P (1991) 3 NWLR (pt 177) p 46 at 63 PARAS C – D. The plaintiff has shown by its evidence that it could have utilized the document to raise funds for the furtherance of its business ventures if the defendant had not wrongfully detained same. It is to be noted that the evidence of the PWI in this regard was not contradicted by the defendant and the Court ought therefore to accept and make use of same.”
I am in total agreement with the finding of the learned trial judge. In ODUMOSU V. AFRICAN CONTINENTAL BANK LTD (1976) 11 S.C. (REPRINT) 32. The Supreme Court per IDIGBE JSC held inter alia that:- “In those cases therefore, the subject matter of the action for detinue have not as such been profit earning, it is extremely difficult to assess the damage to the plaintiff (see Somervell & Romer LJJ in the Medianna (1900) AC 113 at 246, 252 and 257). However, the plaintiff is entitled to damage for loss arising from his inability to make use of the specific goods; and this can be recovered under either head of damage – general or special”. Detinue is a continuing cause of action which accrues at the date of the wrongful refusal to deliver up the goods and this continues until delivery up of the goods or judgment in the action for detinue. The action is in the nature of an action in rem.
As such a plaintiff may sue for the return of the chattel; the value of the chattel as assessed; or for the return of the chattel or its value as assessed and in addition claim damages for its detention in each of the options he chooses to pursue. See JULIUS BERGER V. OMOGUI (2001) 6 SC 185; GENERAL AND FINANCE FACILITIES LTD V. COOKS CARS (ROMFORD) LTD (1963) NWLR 314: CDC (NIG) LTD V. SCOA (NIG) LTD (2007) VOL. 30 WRN 81. In the instant case the respondent’s claim as per paragraph 21 (a) of the amended statement of claim is as follows:- (a) N500, 000,000 (Five Hundred Million Naira) being general Damages for detinue, the Defendant having unduly detained the document the plaintiff would have utilized in furtherance of other business ventures”. It is clear from the above that what the Respondent claimed was general damages for wrongful detention of the title documents which would have been used to further other business ventures. It is not in doubt that the title document for the Port Harcourt property has collateral value, hence the appellant held on to it until the Respondent paid all the sum of money owed as demanded by the appellant. The respondent being in business would have used the same title document to further source for funds to boost its business but for the fact that it was held unto by the appellant between 1999 and 2003. In such a situation I am of the firm view that the Respondent is entitled to general damages as claimed and the issue of strict proof does not arise and special damages which were not claimed either expressly or by implication cannot be imputed to it in the circumstance. Consequently, issue No. 3 is also resolved against the appellant.”
I adopt the above as it is on all fours as the contention in this case that the Appellant need not prove specific damages.
The Appellant is entitled to damages till the date of the return of the title document. I therefore resolve issues 1 and 2 in favour of the Appellant.
The appeal succeeds and it is allowed. The judgment of the lower Court is set aside in part and I award the sum of N5,000,000 (five million naira) as general damages in favour of the Appellant for the undue delay caused by the Respondent in returning the Appellant?s certificate of occupancy. Costs of N200,000 (Two Hundred Thousand Naira) is also awarded in favour of the Appellant.
CROSS APPEAL
Whether the learned trial judge was right when it held that the defendant/cross appellant was in breach of contract for failing to return the Certificate of Occupancy.?
The Respondent/cross appellant counsel urged this Court to hold that the lower Court was wrong when it held that the cross appellant was in breach of contract for failing to return the certificate of occupancy because the Appellant/cross respondent did not put the terms of the contract before the Court as regards the way and manner the document should be returned. He referred to page 183 of the record and that the lower Court approbated and reprobated on the issue. He referred to ODUTOLA HOLDING LTD V LADEJOBI (2006) 12 NWLR (PT. 994) 321 at 360, paras B-C; ADENIJI V UBANAGWU (2010) 12 NWLR (PT 1208) 357; OSADIM V TAWO (2010) 6 NWLR (PT 1189) 155 at 182.
He contended that there was mutual agreement that the deed has been returned and there was no justification for finding that the cross appellant failed to return same and urged this Court to set aside the said findings.
In its reply brief, the cross respondent counsel submitted that based on Exhibits p1, p2, p3 and p4, the lower Court properly examined the pleadings and evidence before it, and referred to pages 183 – 184 of the record.
Counsel submitted that the sole witness for the cross appellant was not credible or had no knowledge of the facts to which he testified and that he presented a case totally different from the position of the cross appellant as contained in the letter of September 23rd, 2010 (that is Exhibit P2). He relied on N.E.R.D.C. V GONZE (2000)9 NWLR (PT 673) 532 at 550; PAN AFRICAN BANK LTD V EDE (1998) 7 NWLR (PT 558) 413 at 433; SANYINNA V A.I.B. (2001) 4 NWLR (PT 703) 355 at 370 to the effect that having repaid the loan the cross appellant failed on its part to return the deed within reasonable time. He further relied on WESTAC (NIG) LTD V SOKOTO STATE GOVT (2001) 1 NWLR (PT 703) 304 at 318.
RESOLUTION
It is evident that the excuse provided when the cross respondent made a demand in its letter of 31/8/10 after several oral demand by the cross respondent himself. See page 9 of record which I shall reproduce extensively:
Our Clients have informed us as well as made available to us documents which show that they deposited their certificate of occupancy in respect of their factory situate at Ota in Ogun state for a facility of N30,000,000,00k (Thirty Million Naira ) granted them by the Ogba branch.
Our Clients have fully liquidated the said facility and have on several occasions requested for a release of the certificate of Occupancy to them to no avail.
Our clients are in dire need of the title document and have instructed us to write and demand that same be released to them forthwith.
Take notice…we shall take steps, which may include instituting a civil action in the High court of Lagos for conversion and/or detinue, without further recourse to you.?
This letter is very relevant it is in evidence and if carefully considered it will be clear that the demand had been made before the letter was made, and nothing was done. It was until the receipt of the Solicitors that the cross appellant acknowledged the rights of the cross respondent and responded thus:
We are presently investigating the issue raised in your latter and shall revert to you shortly with the outcome of our investigation.”
One would have expected that within a few weeks there would be communication but the cross appellant kept mute. More reminders followed the letter of 12th October, 2010 which reiterated an impending suit to enforce the rights of the cross respondent including damages for unlawful withholding of the documents. Followed by another of 30th November, 2010 attaching previous correspondence, there was still no communication. In all the letters was a sense of urgency on the need to use the title documents. This cannot be lost on the readers when a community reading is done. Even if nothing was to be done with the said document the stark reality is that it does not belong to the cross appellant to keep and hold at its convenience. The bank owed a duty to release the document clearing the cross respondent from debt. See AGBANELO V UBN LTD (2000) LPELR ? 2349 (SC):
“A bank has a duty under its contract with its customer to exercise reasonable care and skill in carrying out its part with regard to operations within its contracts with its customers. The duty to exercise reasonable care and skill extends over the whole range of banking business within the contract with the customer. Thus the duty applies to interpreting, ascertaining and acting in accordance with the instructions of the customer.” (See Cresswell et al: Encyclopaedia of Banking Law C. 21), Selangor United Rubber Estates Ltd. v. Cradock (No.3) (1968) 2 All ER 1073).”
Therefore holding on to the document amounted to a breach of contract and withholding same which is detinue. See YUSUF V CO-OPERATIVE BANK LTD (1994) LPELR ? 3535 (SC) where the Court held that:
“The relation between a banker and its customer is that of a debtor and creditor and it is founded on a simple contract. A banker is under an obligation to pay his customer the amount standing to the customer credit on his current account. It is when a customer has made a demand for payment and the banker has failed to meet the demand that a cause of action for the recovery of the amount can be said to have arisen from the date of the failure to effect payment: Ashubiojo v. A.C.B. (1966) 2 All NLR 203, Midland Bank v. Conway Corporation (1965) 1 WLR 1165 and Joachimson v. Swiss Bank Corporation (1921) 3 K.B. 110 at page 127.”
From the above case law, it is trite that the duty of the bank to its customer is contractual. Applying this to the case at hand the cross respondent was a customer and had utilised one of the facilities available to customers and had fulfilled his part of the bargain. He paid back fully the overdraft facility and it behoves on the bank to fulfil its part to release his document and issue a deed of release.
When the period of releasing the document becomes unreasonable, it amounts to a breach of contract on the bank?s part and attracts damages.
In addition, the cross appellant averred and the witness said in page 121 that they had to follow due process before releasing the title document and it was more than a year that the document was released. This contradicts the letter of investigating the matter.
In the light of the above analysis, I am unable to agree with the submission of cross appellant?s counsel. The cross respondent is entitled to damages for the long period of withholding the document. He need not prove what it wanted to do with the document. Damages follow the circumstance. Even a bank would claim for interest if the customer delays in settling its debt/loan.
It is unthinkable the submission of the cross appellant that the cross respondent should walk away from the Court without compensation. Where is the justice or equity in the matter?
On this note, I resolve the issue against the cross appellant and in favour of the cross respondent. The cross appeal lacks merit and it is accordingly dismissed. Costs of N200,000 (Two Hundred Thousand Naira) is awarded against the cross appellant in favour of the cross respondent.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the comprehensive judgment prepared by my learned brother, Abimbola Osarugue Obaseki-Adejumo, J.C.A., which I read in advance and add, by way of emphasis, that the present award of N5 million general damages in the circumstances of the case cured the injustice of the case vide Odumosu v. A.C.B. Ltd. (1976) 11 S.C. (REPRINT) 32. I too abide by the said award and the consequential orders made in respect of the appeal and the cross- appeal.
TIJJANI ABUBAKAR, J.C.A.: My learned brother Obaseki-Adejumo, JCA made available to me in draft the leading Judgment just read.
My Lord has fully covered the field, I therefore do not have anything extra to add. I entirely agree and adopt the Judgment as my own.
Appearances:
Chigbo AnaenugwuFor Appellant(s)
B. A. Jiya (Miss)For Respondent(s)
Appearances
Chigbo AnaenugwuFor Appellant
AND
B. A. Jiya (Miss)For Respondent
