SPDC-WEST MULTIPURPOSE COOPERATIVE SOCIETY LTD v. BRAIMAH & ANOR
(2020)LCN/15555(CA)
In The Court of Appeal
(ASABA JUDICIAL DIVISION)
On Wednesday, November 18, 2020
CA/AS/496/2016
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
SPDC-WEST MULTIPURPOSE COOPERATIVE SOCIETY LTD APPELANT(S)
And
1. SUNDAY OSILAMA BRAIMAH 2. UNITED BANK FOR AFRICA PLC. RESPONDENT(S)
RATIO:
DUTY OF COURT WHEN RESPONDENT’S BRIEF IS NOT TIED TO ANY OF THE APPELLANT’S GROUND OF APPEAL
Without wasting much time, I cannot but agree entirely with the Appellant’s learned counsel in his Reply Brief that the 2nd Respondent’s Brief of Argument was incompetent, same not having been filed pursuant or consequent any 2nd Respondent’s cross-appeal or any Respondent’s Notice. Even worse, is that it props an Issue unrelated to the Issues raised by the Appellant; and does not also touch on any of the Appellant’s Grounds of Appeal or Issues argued by the Appellant.
See Igbinedion Vs Antia (2018) ALL FWLR (part 938) 1887 SC. On the authority of the case of Fawehinmi Vs Globe Motors Holdings Nigi Ltd (2018) ALL FWLR (pt 960) 1320, the said 2nd Respondent’s Brief not tied to the Appellant’s Issues or Grounds of appeal is incompetent and is accordingly struck out. MOHAMMED AMBI-USI DANJUMA, J.C.A.
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Delta State High Court of Justice, delivered on 16-3-2016 by his Lordship Hon. Justice F. O. Ohwo, J at the Warri Judicial Division Suit. No. W/211/2011 by which the trial judge found in detinue against the Appellant and awarded Damages and interests.
The claimant, at the lower Court had, by a writ of summons and accompanying processes claimed in detinue the following reliefs:
a) An order for the delivery up by the Defendant to the claimant of the claimant’s Original Documents of title consisting of:
i) Deed of sub-lease
ii) Certificate of occupancy as Instrument No. 32 at page 32 in volume Co. 68 of the Lands Registry in the office at Asaba, Delta State wrongly detained by the Defendant.
b) The sum of N85,777,500.00 (Eighty Five Million, Seven Hundred and Seventy-seven Thousand, Five Hundred Naira) being special damages suffered by the claimant resulting from the failure, refusal and/or neglect of the Defendant to return the claimant’s original title documents.
c) The sum of N20,000,000.00 (Twenty Million Naira) being general damages suffered by the claimant resulting from the failure/refusal and/or negligence of the Defendant to return the claimant’s title documents to the claimant.
The APPELLANT entered a conditional appearance vide a Memorandum of Conditional Appearance dated and filed on 18/10/2011 (See Vol. (i) page 55 of the Records). The APPELLANT’S Amended Statement of Defence and other attached documents upon which the case was fought at the lower Court is dated 815/2013 same is as contained at Vol. (i) pages 249-266 of the Records of Appeal. Subsequently pursuant to the APPELLANT’S application ex parte, the lower Court on 24/10/2-013 ‘granted leave to the APPELLANT to join the 2nd RESPONDENT herein as a third party at the lower Court and to issue a Third Party Notice on her. The order of the lower Court to that effect is at pages 292-293 of the Records.
Pursuant to the aforesaid order, the APPELLANT filed their Third Party Notice (see Vol. (i) pages 294-295 of the Records) and Summons for Direction (see Vol. (i) pages 296-297). The 2nd RESPONDENT as the -Third Party at the trial Court filed her Statement of Defence, witness depositions and other supporting documents (See Vol. (i) pages 303-318 of the Records).
The case of the APPELLANT at the lower Court was that there was no contract for a loan facility between it and the 1st RESPONDENT. That it merely facilitated a global loan facility between the 2nd RESPONDEN on one hand and her members (which includes the 1st RESPONDENT) on the other hand: The said facility was disbursed through the APPELLANT. Part of the collateral for the said loan facility for members who were interested in same was for them to deposit their title documents with the APPELLANT for onward transmission to the 2nd RESPONDENT. The APPELLANT’S contention at the lower Court was that although the 1st RESPONDENT had fully paid up his facility and had been given a certificate from the APPELLANT confirming this fact, the 2nd RESPONDENT who is in actual custody of the 1st RESPONDENT’S title documents in question had failed to release same to the “‘APPELLANT for onward return to the 1st RESPONDENT (which is ‘the same way the document was transmitted in the first place) after series of demand by the APPELLANT.
The 2nd RESPONDENT on her own part did not deny receiving title documents of the APPELLANT but instead it was contended on her behalf that she granted the APPELLANT a facility of N10,000,000,000 (Ten Billion Naira) for which they admitted that documents of the APPELLANT’S members were delivered to them. They however contend that all documents submitted in respect of the facility (which includes the 1st RESPONDENT’S title documents) were not to be released piecemeal but together upon liquidation of the full mortgage loan granted to the APPELLANT. (See paragraphs (v), (vii) and (viii) of the Third Party’s Amended Statement of Defence to the Defendant’s Amended Statement of Defence as contained at Vol. (i) page 338 of the records).
Notwithstanding the state of pleadings and the evidence led thereon, the learned trial judge in his judgment (see Vol. (ii) pages 491-513 of the records) found in favour of the 1st RESPONDENT and held the APPELLANT liable to deliver to the 1st RESPONDENT his Certificate of Occupancy No. OTSR 9416 registered as Instrument No. 32 at Page 32 in Volume C.O 68 of the Lands Registry at Asaba. The Court also ordered the APPELLANT to pay damages of N5,000,000.00 (Five Million Naira) with -interest at the rate of 20% per annum commencing from the date of judgment until the APPELLANT delivers possession of the said title document. (See particularly Vol. (ii) page 512 of the records).
The APPELLANT being dissatisfied with the said Judgment of the Trial Court lodged a Notice of Appeal dated 19/4/2016 but filed on 20/4/2016 at the Registry of the High Court Warri. Same is contained at pages 514-524 of the records of appeal.
Having transmitted the Record of Appeal, the parties filed and exchanged their respective Briefs of Argument.
The Appellant, by his Brief of Argument raised 6 Issues for determination, while the 1st Respondent raised 3 Issues … thus:
On his part, the 2nd Respondent by its Brief of Argument dated and filed on 12-11-2019 and settled by its counsel, Sir Victor Okpoguma, raised a sole Issue to wit:
Whether the Learned trial Judge was right in resolving in favour of the 2nd Respondent, all the questions or issues raised by the Appellant in its third party Notice and consequently dismissing the Appellant’s third party Notice?
It is the Appellant’s Appeal and I shall accordingly proceed to determine the appeal on his Issues, as formulated. The 1st and 2nd Respondents: Issues are of no moment other than intended to show that judgment as entered at every stage of the litigation in their favour at the trial Court was in accordance to law and the justice of the case.
I will, therefore, not be detained in their consideration at all. I will not detain you, either.
APPELLANT’S ISSUES
Whether the Learned trial Judge was justified in law in holding that the 1st RESPONDENT is entitled to the return of his title documents from the APPELLANT? (Distilled from Ground 1)
Whether the RESPONDENT was able to establish the essential ingredients necessary to sustain a claim for detinue and to entitle him to judgment against the APPELLANT? (Distilled from Grounds 2 and 4)
Arguing the Issues 1 and 2 together for their interrelationship and in order to avoid repetition, it was submitted that the trial judge was wrong to have ordered the return of the title documents of the 1st Respondent as the 1st Respondent had not established the tort of detinue.
Globally, it was the contention of the Appellant on the twin Issues 1 and 2 that there was no contractual obligation in the Appellant in favour of the 1st Respondent to return the certificate of occupancy or any collateral Deed as security for the loan. Counsel submitted that there was no document tendered to show the terms of the purported loan contract between the Appellant and the 1st Respondent and the obligation to return any title documents.
The Appellants counsel urged that the Issues 1 and 2 be resolved in favour of the Appellant.
ISSUE 3
Whether the sum of N5,000,000.00 (Five Million Naira) and interest thereon at the rate of 20% per annum awarded by the trial Court is justified in the circumstances of the case? (Distilled from Ground 3)
It was submitted that the award complained in this said Issue was not justified, in the circumstances of the case.
Referring to the monetary claims, i.e. reliefs sought by the 1st Respondent at the lower Court per the amended statement of claim as contained in vol. 1 (pages 233-238 of the Record as follows:
b) …
c) …
That it can be seen that at no place was, N5,000,000.00 (five million naira sought as general damages nor interest at the rate of 20% per annum.
That the amount that was granted as judgment sum together with the interest thereon cannot be said to be special damages based on or derived from the claim of the 1st Respondent at the trial Court. That the trial Court had assisted the case of the 1st Respondent when same was not claimed or sought.
That this violated the trite principle that a Court should not assist a party in a case.
Auwala Vs FRN (2010) 8 NWLR (pt 1620) 1 (SC) that there is no duty on the Court to assist an appellant or any party at all to the detriment of the other party was relied upon.
It was further argued that it was further compounded by the non-indication as to what the N5,000,000 20% per annum interest was. Was it special or general damages? Learned counsel queried.
That huge damages and interest are not granted for the fun of it or as a matter of routine. That same must be established and a person in whose favour it is granted must be shown to be entitled to it.
It was, therefore, argued that since from the records, the relief i.e. claim for the sum of N85,777,500 was in special damages and N20,000,000,000 in general damages the special damages must be specifically pleaded and strictly proved before a party can be granted same. Aluminium Manufacturing Company of Nigeria Ltd Vs. Volkswagen of Nig. Ltd (2011).
It was contended that the trial Court having regard to its view that special damages had not been proved ought not to have proceeded in making the award when it was not proved that the Appellant was in possession of or had wrongfully retained the 1st Respondent’s title document.
That the 1st Respondent’s documents were in possession of the 2nd Respondent to whom Appellant submitted pursuant to a mortgage loan agreement which the 1st Respondent himself benefited from.
That all efforts to retrieve same from the 2nd Respondent has failed as 2nd Respondent maintained that the entire facility amount granted to the Appellant and her members must be paid in full before any title documents of her members can be returned to them.
The learned counsel further argued that, even if granted that the 1st Respondent had proved his case of wrongful detention of his certificate of occupancy by the Appellant, the law is clear on the quantum of Damages to claim in Detinue; and that it is the value of the Chattel complained to have been detained.
Referring to NEKA BBB Manufacturing Co. Ltd Vs. African Continental Bank Ltd (2004) ALL FWLR (pt 198) 1175 SC, it was submitted that the loss of the certificate of occupancy could only ground an action and the damages being the value thereof was difficult to prove, as it was not profit earning. That the Court cannot be left to speculate as to the value, as speculation has no place in our Courts. The Courts is not permitted or entitled to speculate anything. See I.B.N Ltd Vs. Attorney General, Rivers State (2008) ALL FWLR (pt 417) 1 SC @ 36.
Also submitted that the onus to prove the value of the certificate of occupancy was on the 1st Respondent, as it was he that alleged.
Abubakar Vs. Joseph (2008) ALL FWLR (pt 432) 1065 SC relied upon.
That the sum of N85,777,500 claimed in the 1st Respondent’s Amended Statement of claim for the purported detention must be proved by specific and direct evidence. That arbitrary interest and rates on judgment cannot just be awarded. ADIM VS NBC Ltd (2010) 28 WRN 1 SC
That the 1st Respondent had tendered a certified true copy of the certificate as Exhibit 10 and that this was as good as the original. That he did not however, show when it was obtained and at what cost or value. That it was therefore deemed to have been with it from inception and he had suffered no loss by the absence or detention of same.
That for the above, the trial Court was wrong to have dished out huge damages and interest thereon as it was not a father Christmas or a charitable institution.
Ilona V. Idakwo (2003) II NWLR (pt 830) 53 SC (Edozie, JSC) and Senator Ayinla Olomoda Vs. Olaniyi Mustapha & 3 Ors (2011) ALL FWLR (pt 559) 1080 relied upon.
We have been urged to resolve Issue 3 in favour of the Appellant and to hold that the sum of N5,000,000 and interest at 20% per annum awarded on the judgment sum was excessive, unmerited and not based on any evidence before the trial Court.
ISSUE 4 AND 5
It was argued on those issues globally that there was nodistinct contract between the Appellant and the 1st Respondent, beyond the mortgage facility granted by the 2nd Respondent to the Appellant for the benefit of her members and from which facility, the 1st Respondent assessed and was availed the amount desired.
The Appellant’s counsel contended that the Courts should give effect to contract freely entered into between parties, as both the parties and the Court are bound to give effect to the terms. Best (Nig) Ltd Vs. Blackwood Hodge (Nig) Ltd & 2 Ors. That there was no proved contract from which the trial Court inferred the terms and conditions.
Counsel argued that there was no nexus between the parties and that the trial Court was not right in holding that there was a valid and distinct loan contract between the Appellant and the 1st Respondent.
ISSUE 6
Reproducing portions of the Appellant’s Amended Statement of Defence thus;
11) ………………………
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114) …………………………..
It was contended that those averments (supra) were not specifically denied and/or traversed by the 1st Respondent beyond a mere general traverse.
Bamgbegbin Vs. Oriare was relied upon. It was, therefore, contended that in the face of the pleadings, it was not correct as held by the trial Court that the Defendant/Appellant subjected the title Documents of the 1st Respondent as the claimant at the lower Court) to an individual contract with the third party without the knowledge of the claimant. That from the evidence and admissions, the 1st Respondent was part and parcel of the Resolution by the Appellant for the N10,000,000,000 (Ten billion) mortgages loan facility from the 2nd Respondent.
That the Exhibits 12, the document, having been signed by the 1st Respondent on 22-1-2007 – tagged “SPDC West MPCS Ltd UBA Sponsored Mortgage Loan Application Form shows that the 1st Respondent knew that the facility amount he was availed was sponsored by and/or from the UBA Plc (the 2nd Respondent). That Exhibit D4 (the Document tagged UBA Mortgage Loan processed for payment and which the 1st Respondent’s name listed as No. 65 on it) carries on its face the 2nd Respondent’s official stamp indicating clearly that it was received by the 2nd Respondent.
That it was, therefore, not correct to hold that the 1st Respondent was subjected to an individualized contract by the Appellant. That the Issue 6 be resolved against the 1st Respondent and in favour of the Appellant.
On the aforesaid submission, this Court has been urged to resolve all the 6 issues in favour of the Appellant and to allow the Appeal and set aside the decision of the trial Court.
On his part, the 1st Respondent, by his Respondent’s Brief of Argument settled and dated the 8th November by his Learned Counsel and filed on 18-11-2019 and adopted at the hearing, raised 3 Issues for determination thus;
(a) Whether the CLAIMANT’S title document was actually handed over to you to enable you create a legal Mortgage with regards the Mortgage Loan Facility granted the CLAIMANT through DEFENDANT?
(b) Whether you are still in custody of the CLAIMANT’S title document and refused to releases same on demand?
(c) Whether by reason of the title document of the CLAIMANT being in your possession you are not liable for all the reliefs as contained in the CLAIMANT’S Amended Statement of Claim?”
Arguing those Issues, 1st Respondent on Issue No. 1 submits that the burden of proof cast on a party to prove his case is not static but oscillates; until it congeals and settles.
That in the type of action, herein, for detinue, the evidential burden was on the 1st Respondent as Claimant to lead evidence to prove that the Appellant holds or is holding unto his chartel, despite a demand for its release. And that once done the evidential burden shifted to the Appellant Defendant to justify the withholding of the Chartel.
The 1st Respondent submitted that he had established the deposit of Exhibits “1” and ‘10’ being Deed of sub-lease and certificate of occupancy No. STS R 9416 respectively for the loan of N14,000,000 which fact was admitted by the Appellant in its pleadings and evidence.
That the liquidation of the loan was proved by the issuance of Exhibit 2 to him. That his demand of the return of Exhibits 1 and 10 was rejected by the Exhibits ‘6’ and ‘7’ from the Appellant. The learned counsel argued that the Appellants register, the Exhibit 11 (and being D5 by the Respondent). Shows that the Tittle Documents of the 1st Respondents were deposited with the Appellant and not with the 2nd Respondent as contended by the Appellant.
That the Appellant did not call one Nwerji A. who received the Documents on its behalf to testify if they were forwarded to the 2nd Respondent. That DW4 the General Manager/Chief Executive Officer of the Appellant did not say the documents were sent to the 2nd Respondent, either.
That the Appellant that claimed it only acted as a facilitator of the loan, Issued exhibit 2 – the certificate of payment of loan; That the Exhibit ‘D’ on which Appellant made heavy weather of, was a document between the Appellant and the 2nd Respondent; Also Exhibit ‘D4’ title UBA Clearly reads SPDC – West Multipurpose Cooperative Society Ltd.
That the Exhibit 11, same as Exhibit D5 (ie the Appellant’s Register) shows that the deposit was made with the Appellant and not with the 2nd Respondent; Reference was made to the confirmation of the above submission as in the averment in paragraph 24 of the Appellant’s/ Defendant Amended Statement of Defence, thus:
That Exhibit ‘D’ does not in any way state that the loan was advanced by the 2nd Respondent to the 1st Respondent.
Reproducing what the learned trial judge state thus: …
It was submitted that His Lordship of the lower Court was right when he held that the respondent successfully made out a case of detinue against the Appellant.
Counsel submitted that the cause of action arose when the Appellant failed to release the title Documents deposited with it on demand.
Learned counsel referred us to the case of ACB Ltd Vs. NEKA BB Manufacturing Co. Ltd (1996) 4 NWLR (pt 444) 864 at 567 where this Court held that since the Respondent’s Title Deeds were not delivered to the Appellant for safe custody, but by way of equitable mortgage to guarantee a loan, the Appellant was under a duty to return the title Deeds immediately the Respondent repaid the loan.
Julius Berger Plc Vs Omogui (2001) FWLR (pt 64) pg 305-312 Ishola V. Afribank (2014) ALL FWLR (pt 716) 498.
On Issue 2, whether the Court was right when it awarded damages against the Appellant.
Counsel reiterated that the Respondent had claimed special and General Damages and referred for this to paragraph 31 of the Amended Statement of claim.
That the award as made was right. That the style of writing the judgment and in arriving at the award was irrelevant as it was clear that it was General Damages that was awarded by the trial judge for the tort of Detinue, he having struck out or discountenanced the relief for special damages.
It was argued that there was a difference between the measure of Damages in conversion or total loss of property which shall be the value thereof and Damages in Detinue which is General Damages for the retention of the said property.
That this Court has no business interfering with the quantum of Damages awarded in the circumstances.
On the third Issue, it was contended that evidence abound at the hearing that the 1st respondent was a member of the Appellant’s society and was granted a loan facility by the Appellant and deposited his title Documents with the Appellant.
That the assertion of the Appellant that it was merely a facilitator of the loan and that there was no privity of contract between them but between 1st Respondent and the 2nd Respondent was not tenable.
That the Exhibit 3 – certificate of Repayment of the loan between the 1st Respondent and the Appellant was clear and that Exhibit D3 between the Appellant and 2nd Respondent was obvious. That the Exhibit D12 did not show that it was from the 2nd Respondent.
Concluding, it was submitted that evidence was led to show that the Appellant deducted the balance of N8,000,000 due to it from the 1st Respondent and paid to the 2nd Respondent the sum of N7,000,000. That it was obvious from the evidence and inferences that there was no privity of contract between the 1st Respondent and the 2nd Respondent nor between the 1st Respondent and the Appellant in respect of the N10,000,000,000 loan facility sought.
Learned counsel urged that those 3 Issues be resolved against the Appellant and its Appeal be dismissed and the decision of the trial Court be affirmed.
The third party joined being the 2nd Respondent herein has filed its Brief of Argument of 12th November 2019.
In it, his learned counsel submitted that the Appellant entered into a loan agreement with the 2nd Respondent, by which Appellant handed over several title Documents to the 2nd Respondent to create a legal mortgage. The 2nd Respondent emphasized that the 1st Respondent was not a party to that loan Agreement and that the loan had not been repaid at the time of the suit.
That the trial Court had rightly resolved the Issues in the Third party Notice against the Appellant and in favour of the 2nd Respondent.
We have been urged to dismiss the Appeal and to uphold the judgment of the trial Court, which allowed the action and dismissed the third party Notice with costs of N100,000 in favour of the 3rd party (2nd Respondent).
In reply, the Appellant by its Appellant’s Reply Brief of Argument filed on 20-06-2020 submitted that it had no obligation to call any further evidence to show that the 2nd Respondent had been given the 1st Respondent’s Title documents, this Respondent having pleaded and testified to that effect.
That the Documents were no longer in the possession of the Appellant, it could not be liable in detinue as it cannot be said to have unjustifiably with held it.
That on the authority of M.F. Kent (W.A) Ltd Martchem (2002) 8 NWLR (pt 669) 459 (CA) the conditions for detinue was not proved; i.e. viz
1. That the Defendant was/is in actual possession of the chartel
2. That the Defendant’s possession is adverse
3. That the Defendant without lawful excuse refused/failed to deliver up the chartel to the claimant.
That the Document was in possession of the 2nd Respondent with the due consent of the 1st Respondent and the other members of the Appellant’s Cooperative Society.
On the Issue 2, it was contended that the amount awarded was unreasonable and more so that the 1st Respondent had certified true copies of the Title Documents and which had been shown to be in the custody of the 2nd Respondent.
That the award of Damages was unreasonable unjustified and should be set aside.
On the 2nd Respondents Brief, it was submitted in reply that it was an incompetent Brief of Argument and should be struck out.
That the said 2nd Respondent’s Sole Issue in his Brief did not arise from the Ground of Appeal nor was the Brief a response argument to any Issue formulated by the Appellant.
The learned counsel relying on the Book, “Manual of Appellate Proceedings and Brief Writing” by the Learned author, Chief Tom Anyafulude (1st Edition) pg 600 page 7 thus:
“The law is trite that for a respondent Brief to be valid, it must argue or be based on.
a) Issues as contained in the Appellant’s brief; or
b) Issues formulated from the Appellant’s Grounds of Appeal, or
c) Issues from the Respondent’s Grounds of Appeal where there is a cross Appeal.”
In any case, Issues formulated by the Respondent cannot go outside the grounds of Appeal filed unless there is a cross-appeal a Respondent’s Notice. That failure to relate any issue to the ground of Appeal renders such Issue liable to be struck out.Fawehinmi Vs. Globe Motors Holding Nigeria Limited (2018) ALL FWLR (pt 960) 1320 where the Supreme Court stated thus:
“For failure to indicate from which of the grounds of Appeal the issues were formulated, the apex Court in the case of Akinlagun Vs. Oshoboja (2006) ALL FWLR (pt 325) 53 at 82 SC; (2006) 5 SC NJ 261 D-E per Obuagu JSC has said that
“The consequence of failure to do so; relate/distill/identify such Issue or Issues with the ground or grounds of Appeal, is that such Issue or issues is or liable to be struck out”.
That a Respondent who has not filed a Notice or cross-appeal has no competent Brief before the Court and same should be struck out.
Learned counsel argues that even if the 2nd Respondents Brief were to be deemed competent the answer to it is that the 1st Respondent as a beneficiary of the loan facility and a member of the Appellant and their individual title documents were agreed to be submitted to the 2nd Respondent to enable the Bank create legal mortgage over same. That the 1st Respondent did not deny being part of the general meeting of the Appellant that the facility should be applied for.
That the contention that he was not privy to the contract cannot stand.
The learned counsel submitted that counsel’s submission no matter how alluring can never take the place of legal proof. Ayanwale V. Odusami (2012) ALL FWLR (pt 610) 1246 SC at 155. That there was neither evidence nor did Exhibit D3 make any provision for the release of the title documents upon the release of the alleged N10,000,000,000 naira facility.
That the 1st Respondent did not handover title Document to the 2nd Respondent and should not expect to receive any title documents from them and that the Appellant knew the whereabout of the 1st Respondent’s title Documents before he filed the third party Notice at the trial Court, are all moot points that had been settled and not in dispute, as at the pleadings the documents had been shown to have been handed over to the 2nd Respondent by the Appellant.
That what is important in detinue is Refusal to surrender, produce the document on demand.
That the 2nd Respondent was liable and it does not matter how the documents got to her. That it is that 2nd Respondent that was liable to produce and not the Appellant.
That the Appeal should be held meritorious and allowed and the reliefs sought per the Notice of Appeal be granted.
RESOLUTION OF THE APPEAL
This appeal is as interesting as it is trickish in part.
Having studied the record of Appeal thoroughly and perused severally in particular the evidence led, the Exhibits tendered and the pleadings and the Respective Briefs of Argument filed and exchanged, I do think that the 3 (three) Issues raised by the 1st Respondent have succinctly captured the essence of the Appellant’s appeal and covered adequately all the Appellant’s Issues for determination as raised.
Appellant’s Issues 1, 2 can be taken together and are the same with the 1st Respondent’s Issue No. 1. The Appellant’s Issues Number 3 is same as 1st Respondent’s Issue Number 2 whilst Issues IV, V and VI are the same with 1st Respondent’s Issue 3, Which Issues are one and the same though adroitly, subterfugedly differently crafted in facets or variedly or in different faces.
It should be noted that the Appellant filed a Reply Brief of Argument by which he primarily, urged that the 2ND Respondent’s Brief of Argument be struck out for incompetence. It was the view of the learned counsel for the Appellant amongst others that there was no place in our adjectual law for the filing of a Brief of argument by a Respondent who had neither filed a Cross Appeal nor a Respondent’s Notice.
Proceeding, the Learned Counsel submitted that it was worse where such a Brief of Argument raised issues outside the Appellant’s Grounds of Appeal and or Appellant’s Issues as was done by the 2nd Respondent’s lone Issue for determination.
Without wasting much time, I cannot but agree entirely with the Appellant’s learned counsel in his Reply Brief that the 2nd Respondent’s Brief of Argument was incompetent, same not having been filed pursuant or consequent any 2nd Respondent’s cross-appeal or any Respondent’s Notice. Even worse, is that it props an Issue unrelated to the Issues raised by the Appellant; and does not also touch on any of the Appellant’s Grounds of Appeal or Issues argued by the Appellant.
See Igbinedion Vs Antia (2018) ALL FWLR (part 938) 1887 SC. On the authority of the case of Fawehinmi Vs Globe Motors Holdings Nigi Ltd (2018) ALL FWLR (pt 960) 1320, the said 2nd Respondent’s Brief not tied to the Appellant’s Issues or Grounds of appeal is incompetent and is accordingly struck out.
MERITS OF THE APPEAL
THE ISSUE ONE
I have perused the evidence led at the trial Court and the submission of the parties herein and find that Exhibits 1 and 10 being title Documents to wit “Deed of sub-lease” and “certificate of occupancy”. No DTS R 9416 respectively for a loan of N14,000,000 was deposited by the 1st Respondent with the Appellant as security for the loan he applied for as a member of Appellant.
There is in evidence, the proof of liquidation of the said loan, sum as advanced. Exhibit ‘2’ in appeal is the proof.
There is in evidence Exhibits 6 and 7 which are demands for the return of the documents and the fact of non-return as the Documents were by Exhibit ‘7’ said by the Appellant to be with the 2nd Respondent.
There is from Exhibit 11, ie the Register kept by the Appellant, the fact of the receipt of the said Titled Documents – the subject of the action in Detinue and this appeal. The said Register showing prima facie the custodian of the said Title Deeds is the same with Exhibit D5 tendered by the Appellant as a Defendant.
The loan was advanced by the Appellant to the 1st Respondent. The Deposit of Title Deeds being deposited with the Appellant as a collateral for the loan which had been liquidated as shown by Exhibit 2, could not justifiably and legally be retained by the Appellant, more so when demand for their return had been made by the depositor and owner, the 1st Respondent, herein.
On the authorities of the cases cited, the Respondent was right in contending that a case of detinue had been made out.
The trial Court had held in this regard thus:
The contention of the Appellant that the 2nd Respondent had admitted by its pleadings to be in possession of the Titled document complained of being withheld had resolved the issue, as it did not matter how the documents got to the 2nd respondent; that it was in their custody and had not been unreasonably withheld or refused to be returned by the Appellant; that it was with the 2nd Respondent for the benefit of and at the benefit or instance of the 1st Respondent who had taken benefit under the transaction.
There is no doubt that the liquidation of the loan as proved by Exhibit 2 extinguishes the right to hold on to those Documents. The possession of the documents by any third party who was not in Direct contractual relationship with the 1st Respondent was only a constructive possession by the only known party to the loan transaction already executed as proved by Exhibit 2 and agreed by the parties.
The attempt or desire to utilize the title documents for the loan of N10,000,000,000 (ten billion naira) sought by the Appellant for further disbursement to its members, inclusive of the 1st Respondent did not make the 1st Respondent a party to the contract entered into by the corporate juristic person that would personally be bound and not the members thereof who had no obligation to or to submit documents, if not desirous or unwilling to do so as the 1st Respondent herein. The 2nd Respondent, through its witness, the DW3 had clearly stated that the agreement in Exhibit D3 was with the Appellant and not with the 1st Respondent.
To therefore, hold on to the Documents in the guise of it being with the 2nd Respondent amounted to unreasonably withholding same by the Appellant.
The trial Judge was right. This issue is resolved in favour of the 1st Respondent against the Appellant.
ISSUE TWO
On this issue, it was argued that the Appellant was wrongly damnified in damages particularly that it was an award in special damages that was not proved as it was not ascertained or ascertainable. That the value of the Documents of Title purportedly withheld were not pleaded and proved by evidence. The 1st Respondent argued otherwise,
I have seen the reliefs claimed by the 1st Respondent as plaintiff at the trial Court.
He prayed for N85,777,500 in Special Damages and N20,000 in General Damages.
The Trial Court appreciating that Special Damages must be strictly proved, found, no basis for head of claim and clearly discountenanced it. It was not awarded. The argument in that regard has no basis and being uncalled for is discountenanced.
The 1st Respondent had asked for relief in General Damages to the tune of N20,000,000. The trial Court awarded N5,000,000 (five million naira) for the unreasonable refusal or neglect to deliver up the 1st Respondent’s title, documents which it had found rightly to be in the Appellant’s possession. This is correct; as even constructive possession is possession.
The 1st respondent was entitled to the remedy of General Damages for that tort of detinue, he having made the demand for return and same having been unreasonably resisted.
The quantum of damages awardable shall be at the discretion of the Court; this discretion has not been shown to have been unreasonably exercised nor has the quantum been shown to be otherwise unreasonably high.
The originals of Title Documents which the legal owner thereof is entitled to use as security for further/other advances or insurable considerations or for dealings in the title or property cannot but be taken judicial Notice of.
It is not, as rightly argued by the 1st Respondent’s counsel, a case of conversion, for which the Damages may be the value of the property converted. Even then as special General Damages may still be awarded at the Courts discretion for the tort. The attempt by the Appellant to contend that the availability of the “Certified True Copy of the Title Documents” shows that the 1st Respondent had the original documents and had not shown when he ceased to have them and that it means that he still had it in his possession; that the cost of photocopying was not given. These arguments are puerile and smarks of the incorrigibility of a wrong doer bent and adding salt to injury caused. Is the photocopy not to show what the withheld document was? Is it not the Appellant that said the original were with a third party? And suddenly back to the 1st Respondent?
To argue that the trial judge had only ‘dished out huge damages and interest thereon like a father Christmas or a charitable institution was the height of relishing in the utopia of a Defence or a deliberate feining of ignorance of the nature of the tort of detinue and the consequences. The award in the sum of N5,000,000 was merited and not shown to be excessive or unjust.
The interest thereon was awarded as the maximum permitted under Order 35 Rule 7 of the Delta State High Court Civil Procedure Rules 2009, which provides as follows:
“The Court at the time of making any judgment or order, or at any time afterwards, may direct the time within which the payment or other act is to be made or done, reckoned from the date of the judgment or order, or from some other point of time, as the Court thinks fit, and may order interest at a rate not exceeding 20% per annum to be paid upon any judgment, commencing from the date thereof or afterwards, as the case may be.”
I also resolve this issue in favour of the 1st Respondent and against the Appellant herein.
ISSUE THREE
In the said Issue 3, the Appellant had argued that the trial Court was wrong to have created a scenario of a privity of contract between the Appellant and the 1st Respondent, when in fact there was none. That the Appellant was only a facilitator of the loan and creating an “individualized contractual relationship between 1st Respondent and Appellant was wrong. That the Court was wrong in saying that Appellant wrongly created same between 1st Respondent and 2nd Respondent.
I have also considered the 1st Respondent’s argument and agree that the Exhibits tendered and Exhibit 2, in particular, crowns the proof of the relationship and its performance of the contract.
The Evidence of the liquidation and handing over of the balance of monies to the 2nd Respondent was also evidence to show the contractual relationship between the Appellant and the 2nd Respondent.
That a contract is made for the benefit of a person does not make him a party if he is not so expressed as a party; in the same token that a person is a member of a corporate or juristic entity as the Appellant herein does not, perforce, make the member beneficial person the party or that “entity” to be bound by its corporate contract, unless so agreed.
This is not a suit wherein a person was suing the Appellant as a corporate entity and with a view to lifting the veil of incorporation. Even in that instance, it is the alter ego of the corporation or body that will be sought for.
If the Appellant had obtained the loan of N10,000,000,000 from the 2nd Respondent, would the 1st respondent determine how it would be disbursed or repaid in the circumstances? Certainly not. The 2nd Respondent who did not even say that the 1st Respondent document’s were among the over 100 Documents sent to it by the Appellant had no personal or contractual relationship with the 1st Respondent; and the trial Court was, therefore, right in so holding. The 2nd Responded had argued to the same effect in its incompetent Brief of Argument.
There is merit in the 1st Respondent’s submissions on this issue.
It is resolved in favour of the Respondents and against the Appellant.
Having resolved all the 3 encompassing and embracing Issues (which are the same with the Appellants nine Issues) against the Appellant, the consequence is an outright failure of the appeal. It fails and is dismissed.
In consequence, I affirm the Judgment of the trial Court delivered on the 16th March, 2016 by his Lordship, Justice F. O. Ohwo, J (as he then was) in suit No. W/211/2011.
Appeal is dismissed.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the leading judgment prepared by my learned brother, M.A. DANJUMA, JCA.
I am in complete agreement with the resolution of the issues on which the appeal was decided, by his lordship and have nothing to add by way of contribution.
Accordingly, I too, dismiss the appeal and abide by the consequential orders in the leading judgment.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I had the opportunity of reading in draft the judgment of my learned brother MOHAMMED AMBI – USI DANJUMA, JCA just delivered. He has comprehensively addressed all the issues in contention in this appeal.
I agree with his reasoning and conclusion.
I also dismiss the appeal for lacking in merit and accordingly affirm the decision of the lower Court.
I also abide by all other consequential orders in the lead judgment.
Appearances:
Okoro, Ivan Mowoe, Esq. For Appellant(s)
Patrick Oganwu, Esq. – For the 1st Respondent
Sir Victor E. Akpoguma Esq. – For the 2nd Respondent For Respondent(s)