REV. DAVID MBA UKPAI & ANOR v. EMEKA NSI AJIKE (2018)

REV. DAVID MBA UKPAI & ANOR v. EMEKA NSI AJIKE

(2018)LCN/11343(CA)

In The Court of Appeal of Nigeria

On Monday, the 30th day of April, 2018

CA/OW/102/2014

RATIO

THE TORT OF CONVERSION

The tort of conversion is committed when the person entitled to the possession of a chattel is permanently deprived of that possession and the chattel is converted to the use of someone else per AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

REV. DAVID MBA UKPAI
EBERE MBA UKPAI – Appellant(s)

AND

EMEKA NSI AJIKE – Respondent(s)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.(Delivering the Leading Judgment)

The appeal is against the judgment delivered on 31/10/2013 by the High Court of Justice, Abia State, holden at Ohafia Judicial Division presided over by Hon. Justice C.H. Ahuchaogu (hereafter to be simply referred to as the lower Court and learned trial Judge respectively). The Respondent on record as claimant initiated the instant action by a writ of summons which issued on 19/5/2009 against the Appellants (who are two of the initial three Defendants) before the lower Court. The 3rd Defendant was struck out as a party prior to the commencement of hearing in the case. Parties duly filed and exchanged their respective pleadings which were accompanied with the written depositions of witnesses the parties intended to field at trial. The Respondent in his amended statement of claim, claimed against the Appellants jointly and severally the following reliefs: –

a). AN ORDER of Court directing the defendants to make a replacement of the said truck unto the claimant.

IN THE ALTERNATIVE

b). AN ORDER of Court directing the defendants to pay to the claimant the sum of Six Million Naira (N6,000.000.00) being the value of the said truck.

c). The sum of Five million Naira (N5,000,000.00) being special damages i.e. (N2,201,000.00) and general damage for the unlawful acts of the defendants against the claimant.

The Appellants aside from denying the entitlement of the Respondent to his claims, filed a counter-claim in the Respondents suit and therein they jointly and several claimed against the Respondent as follows: –

Refund of N566,000.00 (five hundred and sixty-six thousand naira only) being money given as interest free loan to the claimant by the 1st defendant.
Refund of N669,000.00 (Six hundred and sixty-nine thousand naira only) being amount spent in the repair of MAN DIESEL truck with registration No. XN 367 ABC at the request of the claimant.
20% interest or any other percentage on the above sums of money based on the current lending rate as approved by the Central Bank of Nigeria until judgment is delivered.

The Respondent called three witnesses in the proof of his case while the Appellants called two witnesses in support of their defence to the main case and their counter-claim. After a review and evaluation of the evidence adduced before it (including documentary evidence); and the lower Court having also had the benefit of the written addresses of the parties, in its judgment which spans pages 129 153 of the record, on pages 146 147 thereof stated as follows: –

Claimant asserted that the weekly returns of the vehicle could have been N80,000.00 for normal periods and based on the assessments he did with the defendants and then the sum of N1million as special damages. In evidence he did not specify under what head or footing he claimed the sum of N1 million. The special damages claimed based on anticipatory income is speculative and is not grantable. Claimants further made a claim for the sum of N3,720,000.00 as general damages. The law is that general damages need not be proved as it flows naturally from the set of facts alleged and complained of. There is evidence that the claimant incurred heavy expenses in the course of repairs on vehicle. His intention from day one was to put the vehicle to commercial use. The Defendants who pretended to be friendly associates frustrate his hopes and aspirations. Claimant was made to report the Defendants to the Church Committee, Police and later took out this suit against them. He deserved to be compensated. I award N3,000,000.00 general damages in favour of the Claimant against the Defendants.

In respect of the counter claim of the Appellants, the lower Court said on pages 152 153 of the record thus: –

I find as a fact that the Defendants monetary claims against the claimant are mere fabrications. I believe the evidence as adduced by the claimant that he was personally responsible for the repairs on his vehicle and had no need and never asked for any financial assistance from the Defendants.

In the circumstance and in view of the above findings of fact, I hold that Defendants counter-claim is completely lacking in merit. It is a fraudulent claim and hereby dismissed.

Being aggrieved with the judgment of the lower Court, the Appellants lodged an appeal against the same by filing at the registry of the said Court on 21/11/2013 a notice of appeal dated 19/11/2013. The notice of appeal contains eight grounds and the said grounds shorn of their respective particulars read thus: –

GROUND 1

ERROR IN LAW

The learned trial Judge erred in law in holding that the claimant/respondent is the owner of the Man Diesel Truck, subject matter of this suit.

GROUND 2

ERROR IN LAW

The learned trial Judge erred in law in failing to take into account the various exhibits before him and drawing the necessary conclusion thereto in deciding the issue of ownership of the Man Diesel Truck.

GROUND 3

ERROR IN LAW

The learned trial Judge erred in law when he held thus:

The claimant had no need or burden of producing documentary evidence of ownership in the face of clear admission by the Defendant that he owns the vehicle ..

GROUND 4

ERROR IN LAW

The learned trial Judge erred in law in failing to observe and uphold the time honoured principle of law that a party cannot benefit from his own wrong.

GROUND 5

ERROR IN LAW

The learned trial Judge erred in law in holding that there was an implied contract for the management of the Man Diesel Truck between the parties when all the facts before the Court point to the contrary.

GROUND 6

ERROR IN LAW

The learned trial Judge erred in law in holding thus:

1st defendant fraudulently took advantage of the original vehicle papers which the claimant handed over to them innocently and ripped the claimant when there was no proof of fraud before him.

GROUND 7

ERROR IN LAW

The learned trial Judge erred in law in holding thus:

I find as a fact that the defendants monetary claims against the claimant are mere fabrications.

GROUND 8

The judgment of the lower Court is against the weight of evidence.

The relief which the Appellants seek from this Court as contained in the notice of appeal is to allow the appeal, set aside the whole decision of the High Court Ohafia delivered on 31st day of October, 2013 and grant the reliefs in the counter-claim of the Appellants.

The appeal was entertained on 30/1/2018 with V.I. Ekeh Esq. urging the Court to allow the appeal, adopting and relying on Appellants brief of argument (prepared by Rev. F.U. Ekavhiare) dated 19/6/2015 and filed on 22/6/2015 but deemed as properly filed and served on 13/4/2016. Learned counsel disclosed at the hearing of the appeal that issue 1 in the Appellants brief of argument was distilled from grounds 1 3 in the notice of appeal; while issue 2 was distilled from ground 4; issue 3 from ground 5; issue 4 from ground 5; and issue 5 from ground 7.

In the same vein, E.C. Mere Esq. learned leading counsel in urging the Court to dismiss the appeal, adopted and relied on Respondents brief of argument (which he settled) dated 27/9/2017 and filed on 29/9/2017 pursuant to the order of this Court made on 25/9/2017.

Five issues were formulated for the determination of the appeal in the brief of argument of the Appellants. The issues read thus: –

Whether the lower Court was right in failing to take into account the various exhibits before it and drawing the necessary inference thereto in deciding the issue of ownership of the Man Diesel Truck.
Whether the lower Court was right in failing to observe and uphold the time honoured principle of law that a party cannot benefit from his own wrong.
Whether the lower Court was right when it held that there was an implied contract for management of the Man Diesel Truck between the parties when all facts before the Court points to the contrary.
Whether the lower Court was right in holding that the 1st Appellant fraudulently took advantage of the original vehicle paper which the Respondent handed over to him innocently and ripped the Respondent when there was no proof of fraud before it.
Whether the lower Court was right in holding that the Appellants’ monetary claims in their counter-claim against the Respondent were mere fabrications.

The Respondent formulated four issues for the determination of the appeal in his brief of argument. They read thus:-

1) Whether in all honesty there is any dispute as to the ownership of MAN DIESEL TRUCK with registration No XN367 ABC being the vehicle in issue

2) Whether from the circumstances of the case there was any agreement implied or express between the parties for the management of the truck

3.Whether on preponderance of evidence, Claimant/respondent proved his case and as such entitled to judgment

4) Whether the counter claim was proved

This is a case tried on pleadings (i.e. amended statement of claim; statement of defence and counter claim, reply to statement of defence and counter claim) filed and exchanged by the parties. Dwelling on the position of the law in respect of some aspects of a case tried on pleadings in the case of ADELOKHAI V. AMBROSE ALLI UNVERSITY EKPOMA (2013) LPELR 20304 (CA) I said thus: –

The position of the law is settled that it is a plaintiff who brings a suit before the Court that also nominates the issues for decision in the case. See NKUMA V. ODILI (2006) All FWLR (Pt. 313) 24. It is also settled law that though a Court is not to make a case for a party it should look at what is pleaded and the relief sought in order to determine the issues involved in the case. See F.A.A.N. V. GREENSTONE LTD (2009) All FWLR (Pt. 500) 741; and BANK OF THE NORTH LTD V. GANA (2004) All FWLR (Pt. 296) 862. This is why it is advisable for an appellate Court to consider the pleadings of the parties to enable it have a clear understanding of the nature of dispute between the parties and how the lower Court approached and resolved the issues. See KOPEK CONSTRUCTION LTD. V. EKISOLA (2010) All FWLR (Pt. 519) 1035.

Also, in the said case this Court in dwelling on when it can be said that parties have joined issues in a case said thus: –

“This Court equally dwelled on when parties can be said to be “at issue” in an action, in the case of EKE V. AKUNNE (2009) All FWLR (Pt. 466) 2023. At page 2041 my learned brother, Kekere-Ekun, JCA; stated thus: –

“The position of the law on pleadings was stated by Oputa JSC in Ehimare v. Emhonyon (1985) 1 NWLR (pt.2) 177 at 183 B-C thus: “When parties to an action have answered one another’s pleading in such a manner that they have arrived at some material point of fact, affirmed on one side and denied on the other, the parties are said to be “at issue”; they have joined issue and the question thus raised is called the issue. In every case there is always the main issue around which other related and subsidiary issues may revolve.”

The position that there must always be a primary issue to be decided in a case was also brought to the fore in the case of VIDAH PACKAGING LTD V. IKEM (2011) LPELR 5086 (CA) where this Court dwelling on the definition of issue stated thus: –

“The pertinent question to determine in the face of the submission is – what is an “issue” “Issue” connotes various meanings depending on the sense in which it is used. Taking a clue from Black’s Law Dictionary – “Issue” means “a point in dispute between two or more parties.” “Legal Issue” means “a legal question usually at the foundation of a case and requiring a Court’s decision.” “Material Issue” means “an issue that must be decided in order to resolve a controversy”. “Issue of Fact” means a point supported by one party’s evidence and controverted by another’s. This is also termed fact issue”. “Issue of Law” means a point on which evidence is undisputed, the outcome depending on the Court’s interpretation of the law, Also termed legal issue.”

Guided by the cases cited hereinbefore by me, I consider it more expedient to resolve the instant appeal on the issues for its determination as formulated by the Respondent. This is more so as I am also of the considered view that Appellants issues 1 and 2 (which both relate to the ownership of the Man Diesel Truck, the subject of the instant case) can conveniently be considered together with Respondents issue 1; Appellants issue 3 can be conveniently considered together with Respondents issue 2; Appellants 4 can be conveniently considered with Respondents issue 3; and Appellants issue 5 can be conveniently considered with Respondents issue 4.

APPELLANTS ISSUES 1 AND 2 VIS–VIS RESPONDENTS ISSUE 1:

The Appellants in dwelling on their issue 1, submitted in the main that the lower Court was in grievous error when it failed to take into account the various exhibits before it and draw therefrom the necessary inference regarding the issue of ownership of the Man Diesel Truck (hereafter to be simply referred to as the truck). It is the contention of the Appellants there was evidence before the lower Court that the vehicle was the legal property of one Friday Akinfenwa of 59, Akakpo Street Lagos which he imported into Nigeria from Greece in 2006. That the position in this regard aside from being pleaded, was supported by documents pertaining to the importation of the truck admitted as exhibits and also by the averments in the pleading of the Respondent to the effect that he imported the truck into Nigeria in 2006 and that he sent the said truck to one Oke Njoku Omerekpe in whose name it was cleared and registered in Nigeria. It is also the stance of the Appellants that the Respondent in his reply to the statement of defence further affirmed his ownership of the truck and that same was imported into the country in the name of Oke Njoku Omerekpe but never tendered a shred of documentary evidence to substantiate his assertion. It is the stance of the Appellants that the lower Court therefore was left with the exhibits pertaining to the truck which were not controverted by the Respondent. The Appellants also submitted to the effect that the case of the Respondent was further worsened when under cross-examination he claimed the existence of a document which transferred ownership of the truck from Friday Akinfenwa to him and which is a concession to the Appellants’ contention that the truck in question did not belong to him.That this is more so as this all-important document of transfer of ownership from Friday Akinfenwa to OkeNjokuOmerekpe i.e. CW2 was not produced for the inspection of the lower Court. That they (Appellants) having tendered documents showing that the truck does not belong to the Respondent, it behoves the Respondent to show how the truck belongs to him. That the lower Court was therefore not only wrong but misconceived the issue before it when in determining the issue of the ownership of the truck found on page 141 of the records that The claimant had no need or burden of producing documentary evidence of ownership in the face of clear admission by the Defendants that he owns the vehicle and there being no adverse claim to ownership from any identifiable person or quarters.”

That the lower Court cannot with a wave of the hand as it were, dismiss Exhibit C principally because of the evidence of the DW 1 that the truck belongs to the Respondent. That Exhibit C is a document that speaks for itself and in clear terms settled the question of who owned the truck and which was contrary to the claim of the Respondent. That the evidence adduced by the Respondent on the issue is at variance with his pleadings and therefore goes to no issue. That Exhibit C is the fulcrum on which the issue of ownership of the Truck revolves and the resolution of the said issue cannot be achieved in isolation of Exhibit C because they are the hangers on which the truth will be resolved. This Court was therefore urged to resolve this issue in favour of the Appellant.

Appellants issue 2 also pertains to the correctness of the finding of the lower Court regarding the ownership of the truck by the Respondent and dwelling on this issue, the Appellants argued the finding of the lower Court on the ownership of the truck was a failure to observe and uphold the time-honoured principle of law that a party cannot benefit from his own wrong. Referring to the averment in the amended statement of claim wherein the Respondent disclosed that the said truck which belongs to him was sent to one OkeNjokuOmerekpe in whose name it was sent and cleared and registered in Nigeria, and the averment in their own (Appellants) pleading wherein they joined issues with the Respondent and maintained that the truck was the legal property of one Friday Akinfenwa; and which he imported into Nigeria from Greece in 2006, the Appellant submitted that in the circumstances the Respondents right to ownership of the truck is of doubtful antecedents and same was illegally acquired by him. That this is so despite the averment in the reply to the statement of defence that went to explain how the truck was imported into the country; what necessitated the name on the import papers; and that no one had ever challenged the Respondents ownership of the truck; coupled with the insistence of the Respondent under cross-examination that there is a document of transfer or ownership of the truck from Friday Akinfenwa to him and which document he never tendered. The Appellants without conceding that such document of transfer existed, submitted that it laid to rest the issue of ownership of the truck and that in its absence, the claim of ownership remains dubious as no document was produced before the Court to buttress the claim of transfer from Friday Akinfenwa to either the Respondent or OkeNjokuOmerekpe. That on the other hand, they (Appellants) through DW1 tendered Exhibit C which are documents issued in the name of Friday Akinfenwa as the owner of the truck and that the Respondent never disputed the genuineness of Exhibit C.That the Respondent’s admission of the existence of a document of transfer of ownership of the truck from Friday Akinfenwa is a concession that the truck is a bona fide property of Friday Akinfenwa thereby putting a lie to the averments in the amended statement of claim to the effect that he (Respondent) imported the truck into Nigeria in the name of OkeNjokuOmerekpe. That this shows that the Respondent’s claim to legitimate acquisition of the truck has been cast in serious doubt. That the totality of the evidence before the lower Court shows that the Respondent acquired title to the truck illegally and the Court cannot assist a party to benefit from his own wrong. That from the nature of the evidence in this case and particularly having regard to Exhibit C it would appear that the Respondent in collaboration with OkeNjokuOmerekpe have contrived to benefit unlawfully from their fraudulent and criminal act against Akinfenwa. This is more so as CW2 OkeNjokuOmerekpe whom Respondent alleged cleared the vehicle admitted on page 84 of the records that the truck was bought by Friday and cleared by him. It is the stance of the Appellants that a Court would not uphold whatever is injurious to the public welfare or is against the public good. This Court was urged to resolve this issue in favour of the Appellants.

Dwelling on the issue of the ownership of the truck, the Respondent in the main submitted that the authenticity of the ownership of the said truck was not honestly in issue. It is the stance of the Respondent that the crucial question is; how did the truck come into the possession of the Appellant That parties were ad idem that he (Respondent) brought the truck to the premises of 1st Appellant. That in the same vein is the admission of the Appellants that they sold the truck in question. It is the stance of the Respondent that this put paid to the criminal intent to put ownership into issue and defeated same as the ownership of the truck was admitted. This is more so as the Appellants also admitted that they sold the truck with the permission of the Respondent. It is the stance of the Respondent that the law is that what is admitted requires no further proof and that in the face of the admission by 1st Appellant that he sold the Respondents truck, there was no need for the Respondent to adduce documentary evidence in proof of his ownership of the same. That this aside, the Respondent averred in his pleading and evidence that he handed over every document pertaining to the truck to the 1st Appellant after handing over the truck to him. That in the circumstance he cannot be expected to produce the very documents that were in the possession of the Appellants. That this indeed showed the dubious intention of the 1st Appellant to defraud Respondent with the ultimate aim of fraudulently selling Respondents truck. The Respondent stressed that the 1st Appellant never challenged the fact that documents of the vehicle were handed over to him. That in law this amounted to an admission; as unchallenged facts amount to admission. It is also the position of the Respondent that there has never been any adverse claim to the truck. That if there was suspicion on the part of the Appellants against Respondent, what they ought to have done from onset was to have reported the Respondent to the Police for investigation as the address of Friday Akinfenwa was contained in the exhibit but they failed to do so. That the issue of ownership of the truck was being belated raised by the Appellants in order to protect or defend their dubious and fraudulent sale of the truck even as they were in possession of all the documents including registration particulars in the name of OkeNjokuOmerekpe which they hid and concealed. It is the stance of the Respondent that equity aids the vigilant and not the indolent. It is also the stance of the Respondent that assuming the contract is tainted with illegality (though not so conceding), the Appellant cannot be heard to complain after benefiting from the alleged illegality. Finally, the Respondent submitted that the onus was on the Appellants to prove that the truck was not the property of claimant and that they did not do this. That it was for the Appellants to have brought Friday Akinfenwa whose address was clear. That the failure of the Appellants to report an alleged crime to the police defeats the issue of ownership. That the facts that all documents were handed over to the 1st Appellant means they are merely playing hide and seek the ostrich game. This Court was urged to hold that the issue of ownership was in all honesty not in doubt.

APPELLANTS ISSUE 3 VIS–VIS RESPONDENTS ISSUE 2:

Dwelling on this issue, the stance of the Appellants is that there was no implied contract between them and the Respondent in respect of the management of the truck. This is so as the Appellants claim that all the facts before the lower Court showed that the Respondent mandated them to sell the truck and also stipulated how the purchase sum was to be applied. The Appellants also claimed that the sum of N1 million realised from the sale of the truck was applied as stipulated by the Respondent with some sums owed him by the Respondent remaining unsettled. The 1st Appellant tendered Exhibits D, and D1-D3 written to his wife in aid of his stance in this regard. It is the stance of the Appellants that there was no implied contract or otherwise regarding the management of the vehicle between them and the Respondent as there was no evidence implied or otherwise in that respect. This is more so as there was no evidence on how the proceed realised from the management of the truck was to beshared and how the Respondent will get his share of the business. It is the stance of the Appellants that the burden of proving the existence of a contract between the parties lies on the Respondent and that the Respondent failed to discharge the burden. That on the other hand there is evidence that the truck was towed from Ohafia to Okigwe mainly for repair work and that as a result of the unfruitful attempts to repair it the Respondent opted for the sale of the truck. The Appellants submitted that if it were true that the repair of the truck was concluded as contended by the Respondent in his pleading, then the evidence of the mechanic who successfully undertook the repair is a sine qua non. This is so because the parties are ad idem as to the status of the truck when it was moved from Ohafia to Okigwe and as it was certain that there could not have been a contractual agreement to ply a truck that was not road worthy. That the Respondent also ought to have given information on how the truck was to be managed and who the driver was or his name. In the premises, the Appellants submitted that the finding by the lower Court that: –

“All the facts and circumstances of this case point irresistibly to the fact of an implied agreement albeit orally, for Defendants to manage the truck in issue for their brother and brethren who resided in Italy and to render account to him.”

was wrong as the lower Court took into account irrelevant facts and failed to advert its mind to relevant facts before it in resolving this issue. That the lower Court based its decision mainly on what the Appellants stated in paragraph 8 of the statement of defence and counter claim to wit:

“1st Defendant provided the sum of N430,000.00 for the repairs and that claimant who had no money assured 1st Defendant of repayment “when the truck gets back to work”……

“This averment is the nearest fact to the probability that there was an initial agreement that the vehicle would upon completion of repair work on it be put to work”.

That the lower Court also wrongly based its decision on the evidence of DW2 under cross-examination when she said that it was the assurance by her husband (DW1) that Respondents vehicle would receive adequate attention in Okigwe that influenced the decision to move the vehicle to Okigwe. This is because the lower Court dwelling on this piece of evidence on page 43 said thus: –

“I find in this piece of testimony evidence of an intention on the part of the parties to be guided by an agreement in their dealings regarding the Man Diesel Truck issue.”

It is the stance of the Appellants that the prior movement of the truck from Ohafia to Okigwe for repairs and in respect of which the parties were ad idem, could not properly found the existence of an implied contract as deduced by the lower Court from the assurance DW2 said her husband (1st Appellant) gave the Respondent. The Appellants submitted that the lower Court cannot pick and choose the evidence to be assessed and that though evaluation of evidence is within the primary province of the lower Court, this Court has the duty to act where the lower Court fails to do so.

APPELLANTS’ ISSUE 4 VIS–VIS RESPONDENTS ISSUE 3.

The stance of the Appellants under their issue 4 in the main is that as the allegation of fraud made against them by the Respondent was not proved beyond reasonable doubt; there was no basis for the finding by the lower Court that the 1st Appellant fraudulently took advantage of the original vehicle papers which the Respondent handed over to them innocently and ripped the Respondent off. The Appellants said that by some of the averments in the amended statement of claim, the Respondent claimed they (Appellants) fraudulently held themselves out and forged the signature of one OkeNjokuOmerekpe with which they sold the truck. That they (Appellants) in answer to the allegation of fraud claimed that the truck was sold on the instruction of the Respondent and that the amount realized therefrom was applied in the purchase of a bus for DW2 in fulfillment of the promise made to her by the Respondent. It is the stance of the Appellants that the Respondent in order to prove the alleged forgery of the signature of OkeNjokuOmerekpe by the Appellants called said OkeNjokuOmerekpe who testified as CW2.

That however the signature of CW2 that was allegedly forged was not put in evidence. That even when CW2 whose signature was allegedly forged, was put in the witness box his signature was not extracted for comparison with the signature allegedly forged. That in the same vein, the alleged forged signature of CW2 was not shown to him for him to either denounce or affirm it. It is the stance of the Appellants that the inability of the Respondent to prove the alleged forgery of the signature of CW2 beyond reasonable doubt is very fatal to the case of the Respondent.

It is also the stance of the Appellants that the agreement that was allegedly forged by them for the sale of the truck was not before the Court as attempts by the Respondent to tender same were opposed resulting in its being rejected. It is the stance of the Appellants that the lower Court was wrong to have found thus: –

“1st Defendant sold, upon his admission in the name of OkeNjokuOmerekpe (CW2) even when he had not known OkeNjokuOmerekpe for the first time. 1st Defendant issued the purported buyer with a sale receipt and did not even furnish the claimant with a copy of the sale receipt. 1st Defendants son who is the 2nd defendant on record signed the receipt of sale as the owner in the name of OkeNjokuOmerekpe. The above fragment of evidence conclusively established the fact that the Defendant dealt fraudulently with the claimant and that the alleged sale of claimants vehicle was effected in bad fait (sic).

The Defendant fraudulently took advantage of the original vehicle papers which the claimant handed over to them innocently and ripped the claimant off.

It is the stance of the Appellants that the lower Court was in serious error in the holdings it made above because it failed to take into account the issue of how the name of OkeNjokuOmerekpe came into the transaction; how his name was suggested by the Respondent to the Appellants and the purpose for which it was suggested.

This Court was urged to hold that it was the Respondent who (i) authorized the Appellants to sell the vehicle; (ii) handed the vehicle papers to that effect: and (iii) suggested the name of OkeNjokuOmerekpe to the Appellants for the purpose of selling the vehicle with his name and to resolve this issue in favour of the Appellants.

In dwelling on his issue 3, it is the stance of the Respondent that he proved his case on the preponderance of evidence and was entitled to the judgment given him by the lower Court. The Respondent re-echoing the many finding made by the lower Court made further submissions in aid of his stance that the said Court was right in giving him judgment. Dwelling also on the stance of the Appellants (without so conceding that the case should have been proved beyond reasonable doubt because of slight inferences of criminal connotations) the Respondent submitted that the admissions by the Appellants of their conspiracy, fraudulent sale and misrepresentation clearly proved the case beyond reasonable doubt. That a typical example of this is the selling of the truck in another persons name; issuing receipt in that other person’s’ name and concealing the sale until the claimant returned from Italy. That the failure of the Appellants to obtain the CTC of the 1st Appellants statement to the Police to prove he denied admitting the fraudulent sale was such that should attract the invocation of Section 167(d) of the Evidence Act in the matter.

It is the stance of the Respondent that this Court was entitled to look at the photocopy of the receipt of sale that was front loaded as it was part of the processes in the case file in order to see what it went to establish.

APPELLANTS ISSUE 5 VIS–VIS RESPONDENTS ISSUE 4:

The stance of the Appellants under this issue is that the lower Court was in error in holding that the Appellants monetary claims against the Respondent were mere fabrications without taking into account the evidence adduced by the Appellants. That in the proof of their claim the Appellants tendered a receipt marked Exhibit B issued for the purchase of spare parts for the repair of the truck, which was admitted without objection. That though the Respondent expectedly denied liability to both claims in the counter-claims, it is the stance of the Appellants though the Respondent denied liability in general terms, his pleadings and deposition on oaths did not proffer specific answer to the counter-claim of the Appellants. it is the stance of the Appellants that inasmuch as the Respondent gave evidence that was inconsistent and contradictory in respect of the repairs to the truck and the cost of spare parts. The same should not be believed. That on the contrary the Appellants did not only produce a receipt for spare parts bought amounting to N430.000.00 (four hundred and thirty thousand naira) for the repair of the truck but also itemized the specific repairs that were carried out. That the evidence of the Appellants is replete with details and vivid graphic picture of how and what were spent on the repair of the truck that was ill managed and packed for over six months. That they have in their evidence also satisfactorily shown that the Respondent took the sum of N566.000.00 (five hundred and sixty-six thousand naira only) as interest free loan from the 1st Appellant which he failed to pay.

Having embarked on what they apparently considered to be a proper evaluation of the evidence before the lower Court, the Appellants urged this Court to resolve this issue in their favour.

Dwelling on the issue as to whether or not the Appellants proved their counter claim, the Respondents stance is that they did not. This is because the Respondent is of the view that the Appellants failed to prove that the 1st Appellant incurred all the expenses he claimed and also that he was directed to sell the truck. It is also the stance of the Respondent that Exhibit “B” or receipt for the purchase of spare parts by Appellants which did not bear the names of either of the Appellants was not such that went to prove the fact it was supposed to prove. Having also embarked on the evaluation of the receipt vis–vis the circumstances of the case, the Respondent concluded that the counter claim was impossible and incredible. That the counter claimants claim for N1,235,000.00 is an attempt to rip off and a classical corrupt act similar to 419 deals of the past. That the Respondent having handed over his truck to the 1st Appellant to manage, an equitable situation or relationship of cesti que trust had been created.

This Court was urged to bear in mind that (a)Appellants were cesti que trustees while the truck was parked in the compound of DW1 at Asaga Ohafia. This was the commencement of the implied agreement; (a) the advice of DW1 that the truck be moved to Okigwe for better handling and management; (b) the repairs, handing over by the Respondent (who is a flock in the Appellants Church) of the truck to the Appellant to manage and who were in very cordial fiduciary relationship. That the handing over of the truck for management and travelling back to Italy was the sealing; (c) the sale amounts to breach of contract of management; (d) the receipt for purported purchase of the spare parts was fictitious. That again, the claim of promise to purchase a bus for the wife of the 1st Appellant and to take the son to Italy were not proved. What Respondent promised was a bus for the Church at the time it will be possible. That the Appellants were telling lies all the way to perpetuate and consolidate their illegal sale of the truck and reference was made to a portion of the Respondents letter which stated thus: –

As of now I could send the bus as I propose but due to situation of things, I cannot make it within this December, but all know is that by the special Grace of God, it will be within the month of January or February 2007. As soon as I send the bus home, I will write a letter to attach to it.”

That the portion of the letter in question did not at all empower Appellant to sell the truck and purchase a bus with the proceeds. The Respondent concluded by maintaining that the counter claim was misconceived and rightly dismissed by the lower Court.

The issues which the lower Court formulated for the determination of the case are as set out on page 138 of the record and they read thus: –

Whether there is any dispute as to the ownership of MAN DIESEL TRUCK with Registration number XN 367 ABC being the vehicle in issue.
Whether from the circumstances of this case, there was any agreement between parties for the management of the MAN DIESEL TRUCK on commercial basis.
Whether the claimant proved his case and therefore entitled to the reliefs he seeks against the Defendants.
Whether the Defendants proved their counter-claim and therefore entitled to their claim.

In resolving the first of the issues re-produced above (and which in my considered view is the basis of Appellants issues 1 and 2), the lower Court having re-produced the averments in paragraphs 5, 6 and 7 of the amended statement of claim; paragraph 3 of the statement of defence; and paragraph 1 of the reply to statement of defence continued on pages 140 141 of the record thus: –

In line with his pleadings, claimant as CW1 gave evidence relating to his ownership of the vehicle. Under cross-examination, he denied that Friday Akinfenwa is the owner of the vehicle. That Defendants averred that claimant’s ownership of the vehicle is of doubtful antecedents only because some of the import papers issued by Nigeria Customs Service are in the name of one Friday Akinfenwa. The Defendants are not laying claim to ownership of the vehicle and do not even know who Friday Akinfenwa is. The Defendants admitted both in their pleadings and evidence in chief that the documents including the Custom papers relating to the vehicle were given to them by the claimant. Under cross-examination, 1st Defendant admitted that he sold claimants vehicle and went on to say that he sold the vehicle with claimants’ consent and authority. It is curious that Defendants who claim that Friday Akinfenwa is the legal owner of the truck did not even know who Friday Akinfenwa is and even admitted sale of the vehicle in the name of Oke Omerekpe as owner to one EmekaOkoli.

The law is that facts admitted need not be proved by evidence. See

The claimant had no need of producing documentary evidence of ownership in the face of clear admissions by the Defendants that he owns the vehicle and there being no adverse claim to ownership from any identifiable person or quarters. this issue is accordingly resolved in favour of the Claimant.

The answer to the divergent positions of the parties in the instant appeal in respect of the need on the part of the Respondent to have established his title or ownership to the truck the subject matter of the instant suit in my considered view is better answered by having recourse to the positions of the common law regarding some torts, namely, Tort and liability on bailment and Conversion and other injuries to goods. This is against the backdrop of the position of the law that a single act of a defendant may give rise to liability under different heads of tort. See the case of SPDC V. ANARO (2015) LPELR 24750 (SC).

On Tort and liability on bailment the learned author of Winfield and Jolowicz on Tort (Tenth Edition) stated on pages 16 to 17 thus: –

A bailment is a delivery of goods on a condition express or implied, that they shall be restored to the bailor or according to his directions, as soon as the purpose for which they are bailed has been completed. The person who delivers the goods is called a bailor, the person to whom they are delivered is the bailee. Common examples of bailment are hire of goods, such as hire of a car from a garage, gratuitous loan of goods, such as lending this book to a friend; even pawn or pledge. Now, supposing that the bailee misuses or damages the goods he is of course liable in civil action to the bailor. Is this liability to be distinguished from liability in tort Many bailments arise out of contract, but the better opinion is that it is possible for bailment to exist without contract and where this is the case, as in the gratuitous loan of something for the use of the borrower, the liability is gratuitous.

Suffice it to say that the Supreme Court would appear to have given a stamp of authority to the above stated position of the common law of England in the case of BROADLINE ENTERPRISES LTD V. MONTEREY MARITIME CORPORATION (1995) LPELR 807 (SC) wherein Oguntade, JSC; said thus: –

I should, perhaps, observe that although at common law, bailment is often associated with a contract, this is not always the case. An action against a bailee can quite often be presented, not only as an action in contract, nor in tort, but as an action on its own sui generis, arising out of the possession had by the bailee of the goods. See: Building and Civil Engineering Holidays Scheme Management Ltd. v. Post Office (1966) 1 Q.B. 247 at page 260-261 per Lord Denning, M.R. The law of bailment, therefore, overlaps the categories the law of contract, tort and, indeed, property and a bailees duty to take care with regard to the subject matter of the bailment can lie in contract or in tort. A plaintiff establishes a justiciable cause of action by proving a bailment on which a duty of care arises at common law on the part of the defendants not to be negligent in respect of the plaintiffs goods, independently of any contract, and a breach of that duty. See Jackson v. Mayfair Window Cleaning Co. Ltd. (1952) 1 All E.R. 215. The question whether a particular action falls within the ambit of contract or tort depends on the facts of the case, not on the form in which the action is brought. In my view, irrespective of contract, a claim in bailment lies in tort on the particular facts of the present case.xxxxx

Dwelling on the tort of conversion the learned author of Winfield and Jolowicz on Tort (Seventeenth Edition) at paragraph 176 on page 751 stated thus: –

Conversion at common law may be committed in so many different ways that any comprehensive definition is probably impossible but the wrong is committed by a dealing with the goods of a person which deprives him of the use or possession of them (though to deprive the owner does not necessarily require the defendant should himself take the goods from him). Thus, it may be committed by wrongfully taking possession of goods, by wrongfully disposing of them, by wrongfully refusing to give them up when demanded. In common law, there must be some deliberate act depriving the claimant of his right: if this element was lacking there was no conversion.

Dwelling further on what constitutes conversion at common law at paragraph 17-8 on page 752 the learned author equally stated thus: –

(i) Taking possession Whether taking possession of another’s goods is conversion is a matter of degree. Generally, it will constitute the tort but there will be no conversion where the interference is merely temporary and is unaccompanied by any intention to assert right over the good. Taking for the purpose of acquiring a lien or even for temporary use have been held to be conversion. On the other hand, some of the cases talk in terms of exercising dominion” or denying the owners right. These expressions should not be taken too literally but if that is how the defendants conduct would appear to an observer that is certainly a pointer towards its being conversion and not trespass. Now that the claimant does not have to choose the correct form of action, the distinction between trespass and conversion is of course less important but may still be significant on the question of remedy.

At paragraph 17-11 on pages 756 -757 the learned author also said thus: –

Abusing possession. Abuse of possession which the defendant already has may take many forms, such as sale accompanied by delivery of claimant’s goods or their documents of title to another, pawning them, or otherwise disposing of them even by innocently delivering them to a fraudster with forged delivery documents.

Also dwelling on Title of Claimant at paragraph 17-16 on pages 761 762 the learned author said thus: –

What kind of right to the goods must the claimant have in order that interference with it may amount to conversion? The answer is that he can maintain the action if at the time of the defendant’s act, he had (1) ownership and possession of the goods, or (2) possession of them; or (3) an immediate right to possess them, but without either ownership or actual possession. This seems to be the law, but it can be elicited only from some confusion of terminology in the reports. Thus it is said in several cases that the claimant must have a right of property in the thing and a right of possession and that unless both these rights concur the action will not lie. If right of property means ownership, this might lead one to infer that no one can sue for conversion except an owner in possession at the date of the alleged conversion. But that this is not so, for a bailee has only possession and no ownership (which remains in the bailor), and yet the bailee can sue a third party for conversion. And, as we shall see, one who has mere possession at the date of the conversion can generally sue, and so can one who has no more than a right to possess.

Also dwelling on jus tertii vis–vis possession the learned author said at paragraph 17-18 on page 764 thus: –

Once a system of law accepts possession as sufficient foundation for a claim for recovery of personal property it is faced with the question of how far a defendant should be allowed to raise the issue that a third party has a better title to the property than the claimant the jus tertii. There are arguments either way. On the one hand, refusal to admit the jus tertii allows recovery by a claimant who may have himself wrongly dispossessed the true owner and also expose the wrongdoer to the risk of multiple liability. On the other hand, it may be argued that a person who has dispossessed another should have no right to raise such issues concerning the relationship between the dispossessed and some other party having a claim over the goods, for there is a serious risk of abuse and of the interminable prolongation of actions. The common law compromised. If claimant was in possession at the time of the conversion, the defendant could not set up the jus tertii, unless he was acting under the authority of the true owner. Where, however, the claimant was not in possession at the time of the conversion but relied on his right to possession, jus tertii could be pleaded by the defendant. To this rule there was an exception where the defendant was claimants bailee, for the defendant was regarded as being estopped from denying the claimants title unless evicted by title paramount or defending the action on behalf of the true owner.

Again, I cannot but say that the Supreme Court has in numerous cases given force to the position of the common law that possession or right to possession can properly sustain an action in conversion. See amongst others in this regard the case of TRADE BANK PLC V. BENILUX (NIGERIA) LTD (2003) LPELR 3262(SC) wherein the Supreme Court said thus: –

I have hereinbefore reproduced the reliefs sought by the Respondent from the Appellants. It is in my considered view very clear from the facts pleaded by the Respondent in support of the reliefs, that the Respondent cannot be said to have predicated his claim to the reliefs on his ownership of the truck even though he undoubtedly pleaded that the truck is his own and how he came to own it. The Respondent without any equivocation predicated his claim to the reliefs he sought against the Appellants upon his possession of the truck at all material times before he handed over the said truck to the 1st Appellant and which fact the Appellants never denied or controvert in their pleading. That the Appellants never denied or controvert the fact that the Respondent possessed the truck and that the 1st Appellant took possession of the said truck from the Respondent albeit from those the Respondent sent to take the truck to the premises of the 1st Appellant and that the 1st Appellant was at no time an unwilling bailee as it were, is also glaring from the pleading of the Appellants. Given, the portions of Winfield and Jolowicz on Tort that I have re-produced hereinbefore, I am of the considered view that inasmuch as the Appellants undoubtedly joined issue with the Respondent concerning the ownership of the said truck, the said issue of ownership was not a legal issue for resolution in the case inasmuch as at the best it amounted to a plea of jus tertii which could not have dislodged the possession of the truck by the Respondent at all material times before it was sold by the 1st Appellant. I am therefore of the considered view that there is much wisdom in Respondents issue 1 in the instant appeal which reads thus whether in all honesty there is any dispute as to the ownership of the MAN DIESEL TRUCK with Registration No. XN 367 ABC being the vehicle in issue and the stance of the Respondent that the answer is in the negative as the authenticity of the ownership of the MAN DIESEL TRUCK registration No. XN 367 ABC was not honestly in doubt issue.

Against the backdrop of the above stated position, I do not see how the holding of the lower Court that: –

The claimant had no need or burden of producing documentary evidence of ownership in the face of clear admissions by the Defendants that he owns the vehicle and there being no adverse claim to ownership from any identifiable person or quarters

can be faulted as I am of the considered view that it is only a declaration of the position of the law that the Appellants cannot properly dispute the Respondents ownership of the truck (irrespective of Exhibit C) as they got possession of the said truck from him (i.e. Respondent). In other words, the instant case given its peculiar facts is not one in which the lower Court needed to have drawn any inference from Exhibit C in arriving at its decision regarding the ownership of the truck by the Respondent. This position in my considered view equally put paid to Appellants issue 2 that accuses the lower Court of not upholding the time-honoured principle of law that a party cannot benefit from his own wrong. This is so because the Appellants who never showed that the Respondent contravened any regulation in respect of importation of vehicles into the country particularly regarding the importation of the truck in question and not being the Custom Service in my considered view have simply predicated their case in this regard on pure speculation.

Flowing from all that has been said is that Appellants issues 1 and 2 must at this stage be resolved against them and it is so resolved.

Having regard to the case of the Appellants and the evidence adduced by the parties, I am of the considered view that it is undeniable that prior to the time the Appellants came to possess the truck, the Respondent was clearly using it for economic purposes and that it was its mismanagement by the person or persons (his in-law(s)) to whom the truck was then entrusted that made the Respondent to end up with the 1st Appellant for whatever assistance he could render in making the said truck more roadworthy. Having regard to the evidence adduced by the Respondent and or the Appellants there was nothing to suggest that the vehicle could not move on the road or was towed down to the 1st Appellants premises. In any event and in apparent confirmation of the fact that the truck was not off road as it were, is the evidence of the 1st Appellant that went to show that the truck was driven from his premise for at least a distance of about 10 kilometres until it had a burst engine. It would therefore appear in my considered view that the gory or horrible picture of the truck as painted by the 1st Appellant and which resulted in stance of the Appellants that this was why the Respondent wanted or decided to sell the truck cannot be correct and also that the truck was certainly not sent to Okigwe from the 1st Appellants place with a view to selling it. The lower Court clearly did not believe the 1st Appellant that the Respondent did not have sufficient funds to pay for the repairs. Certainly, it would appear that the 1st Appellant being the person that predicated the Appellants case on the fact that the truck was in such a deplorable and unrepairable state so to say, and which necessitated the handing over to the 1st Appellant of all the original documents pertaining to the truck, had the burden of proving this, in order to negate or debunk the position of the Respondent that the said documents were handed over to him (1st Appellant) for the management and operation of the truck for maximum profit and that an account book specifying the daily earnings and expenditure was provided for recording all such monetary transactions as agreed before the Respondent left for Italy on 30/11/2007. Suffice it to say that it would appear that the Appellants are completely oblivious of the fact that they did not successfully challenge the evidence of the Respondent in this regard under cross-examination and or that they never called any evidence to show that the truck was in such a deplorable state, such that one would not have doubted the stance of the Appellants that the Respondent actually had no option than to have directed the sale of the truck before he left the country. In the circumstances, I simply do not see how the lower Court could be said to have been wrong when it relied on relevant portions of the evidence before it (and which are in the record), in holding that all the facts and circumstances of this case point irresistibly to the fact of an implied agreement albeit oral for the Defendants to manage the truck in issue for their brother and brethren who resided in Italy and to render accounts to him.

The bottom line is that inasmuch as the Appellants failed to establish the fact that they acted pursuant to any authorisation given them by the Respondent to sell the truck, they could not have justified the sale of the said truck and also dislodge the existence of the implied contract the lower Court found to exist between the Appellants and the Respondent.

The issue raised by the Appellants to the effect that the lower Court was wrong in finding them to have acted fraudulently in selling the Respondents truck in my considered view would appear to be a display of complete misapprehension of the facts surrounding the sale and which loudly indicate fraud. This is so inasmuch as the Appellants were shown to be the ones who issued or uttered the document which bore the name of Omerekpe as the seller of the truck (when the said Omerekpe was actually not the person who made the document). The issue of comparing the signature of the purported Omerekpe who issued or uttered the document of the sale of the vehicle was simply uncalled for in the circumstances.

Flowing from all that has been said therefore, is that Appellants issues 3 and 4 must be and are resolved against them.

The lower Court in finding against the Appellants in respect of their counter claim in my considered view embarked upon a thorough evaluation of the evidence adduced by the Appellants and Respondents respectively on the issues involved in the counter-claim. The lower Court made it clear that it was not impressed by the evidence of the Appellants relating to the counter-claim. Indeed, the lower Court in the evaluation of the evidence adduced by the Appellants expressed the view that the counter-claim of the Appellants only surfaced in the course of the proceedings (i.e. after the Respondent had instituted the instant case) and that the 1st Appellant never raised the issue of expenses or debts he incurred on behalf of the Respondent when he was summoned to appear before the Local Church Committee before which he admitted that he promised to refund the sum of N1 million to the Respondent. I cannot but note that it was after the 1st Appellant under cross-examination had on page 95 of the record initially denied that the Church Committee encouraged him to settle with the Respondent that he later admitted on page 97 while still under cross-examination that he promised at the Church Committee level to refund the sum of N1 million to the Respondent. The written deposition of the 1st Appellants Church member (i.e. CW3) that sat in the Committee of the Church whereat the Respondent first laid his complaint regarding the unauthorised sale of the truck by the 1st Appellant is on pages 40 41 of the records. Indeed, it is clear from the cross-examination of the said witness as contained on pages 85 86 of the record that there was no meaningful or successful challenge regarding his evidence as to what transpired before the said Church Committee. The Appellants would appear to have lost sight of the fact that all the 1st Appellant testified to regarding the expenses he incurred on behalf of the Respondent for the repairs to the truck and loans he gave the Respondent, took place between the Respondent and him (1st Appellant) solely. The Appellant who in my considered view had somehow revealed that he cannot readily and also incapable of agreeing fully with the account of what occurred between him, CW3 and Respondent, as testified to by the Respondent, would appear not to have appreciated the fact that he should have called the mechanics that worked on the truck as alleged by him (1st Appellant) and for the said mechanic to acknowledge or admit the fact of the payment to them of the various sums they were claimed to have been paid, in the absence of any documentary evidence in proof of same. Ironically, the only receipt which the Appellants tendered was considered as suspect by the lower Court as it had no link with the 1st Appellant (and which evaluation in any case, I consider to be proper having sighted the said receipt on page 52 of the record). The law is settled that the evaluation of evidence and ascription of probative value thereto, is the primary duty of the trial Court. That it is where the trial Court fails to evaluate or to properly evaluate the evidence adduced before it and miscarriage of justice thereby occurs, that calls for the interference of the appeal Court which is then obliged to evaluate or re-evaluate the evidence. See the cases of WOLUCHEM V. GUDI (1981) 5 SC 291 or (1981) NSCC 216; and FOLORUNSHO V. ADEYEMI (1975) 1 NMLR 128 amongst many others.

Suffice it to say that as I have not seen any infraction of the law committed by the lower Court in respect of the counter claim of the Appellants, I see no basis whatever to interfere with the conclusion of the said Court regarding the Appellants counter claim. In other words, the lower Court in my considered view rightly dismissed the counter claim having regard to the evidence before it in respect of same.

Appellants issue 5 is accordingly resolved against them.

In the final analysis, the appeal is lacking in merit as all the issues formulated by the Appellants for its determination have been resolved against them. Accordingly, the judgment of the lower Court appealed against is hereby upheld in its entirety.

Appellants are to pay the Respondents costs of N50,000.00.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I agree.

Appearances

V.I. EkehFor Appellant

AND

E.C. Mere with him, B.N. NwachukwuFor Respondent