UBN PLC v. UDENSCO LINE (NIG) LTD
(2021)LCN/15740(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Monday, May 10, 2021
CA/OW/547/2018
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Amina Audi Wambai Justice of the Court of Appeal
Between
UNION BANK OF NIGERIA PLC APPELANT(S)
And
UDENSCO LINE (NIGERIA) LTD RESPONDENT(S)
RATIO:
WHETHER OR NOT THE ISSUE OF LOCUS STANDI QUALIFIES AS A JURISDICTIONAL ISSUE
This is because, while it is not in doubt that the issue of locus standi conveniently qualifies as a jurisdictional issue, inasmuch as the case of a plaintiff or claimant who lacks locus standi to institute an action, has to be dismissed or struck out; and does not need to be considered on the merit, it is however clear from decided cases that the issue of lack of locus standi is a peculiar species of “jurisdiction” as it were, once the civil procedure rules of a Court have made specific provision(s) as to how such an issue; which is an issue of law, is to be raised. In this regard, I consider the case of DISU V. AJILOWURA (2006) LPELR-955(SC) or AJILOWURA V DISU [2006] VOL. 10 MJSC 78, wherein the Supreme Court dwelled extensively on the issue of locus standi, very pertinent. PER LOKULO-SODIPE, J.C.A.
WHETHER OR NOT THE GRANT OF GENERAL DAMAGES IS AT THE DISCRETION OF THE COURT
The settled position of the law is to the effect that in cases where a party is demanding for or claiming general damages, a Court awards the same at its discretion. This is why there are authorities galore that go to show that an appellate Court does not lightly interfere (not that the law prohibits an appellate Court from interfering) with an award of general damages made by a trial Court in the exercise of its discretion. In this regard, see amongst others the case of UBN PLC V. AJABULE (2011) LPELR-8239(SC) wherein the Supreme Court dwelling on damages stated thus: –
“I now move the issue relating to the award of general damages to the tune of N2,000,000:00 (Two Million Naira). General damages are said to be damages that the law presumes and they flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently results from the tort for which a party has sued; that the harm is reasonably expected and need not be alleged or proved. They need not be specifically claimed. They are also termed direct damages; necessary damages. As a general principle, an appellate Court would not interfere with an award of damages by a trial Court simply because faced with a similar situation and circumstance, it would have awarded a different amount. There are, however, some guiding principles. An appellate Court will interfere with an award by a trial Court where it is clearly shown –
1. that the trial Court acted upon wrong principles of law; or
2. that the amount awarded by the trial Court is ridiculously too high or too low;
3. that the amount was an entirely erroneous and unreasonable estimate having regard to the circumstances of the case…” PER LOKULO-SODIPE, J.C.A.
THE MEANING OF THE TERM “LOCUS STANDI”
Still on the question of locus standi is the case of ADENUGA V. ODUMERU (2003) LPELR-24860(SC) wherein the Supreme Court in dwelling on the said issue, clearly cited with approval; and also applied its decision in the Owodunni case (supra) amongst others. This is what the Supreme Court stated in the case under reference: –
“Locus standi denotes the legal capacity, based upon sufficient interest in a subject-matter, to institute proceedings in a Court of law to pursue a certain cause. In order to ascertain whether a plaintiff has locus standi, the statement of claim must be seen to disclose a cause of action vested in the plaintiff and also establish the rights and obligations or interests of the plaintiff which have been or are about to be violated, and in respect of which he ought to be heard upon the reliefs he seeks: See …; Owodunni v. Reg. Trustees of CCC (2000) 10 NWLR (Pt. 675) 315. PER LOKULO-SODIPE, J.C.A.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the judgment delivered on 30/7/2018 by the High Court of Justice of Abia State, presided over by Hon. Justice L. Abai (hereafter to be referred to as “the lower Court” and “learned trial Judge” respectively). The Claimant (now Respondent) initiated the instant action by a writ of summons which issued on 9/12/2015 and the lower Court in the judgment on appeal, in an action for unlawful retention of title documents, found the Respondent to have established its case and awarded the said Respondent a sum of N10 million as general damages. Costs in the sum of N50,000.00 was equally awarded in favour of the Respondent and against the Appellant.
The lower Court captured the facts of the instant case in its judgment thus: –
“This suit was filed on the 9/12/2015. In its statement of claim the claimant seeks:
1. An order commanding the defendant to return to the claimant forthwith her title documents in the possession of the defendant as follows:
(i) The certificate of occupancy (C of O) of the property at No 2A & 2B Nwachukwu Avenue, Aba.
(ii) The certificate of occupancy (C of O) of the property at 96 Ohanku Road, Aba.
(iii) Allumaco share certificate.
2. An order commanding the defendant to pay to the claimant the sum of N100 million as special damages suffered by the claimant for failure to return the claimants (sic) documents.
3. An order commanding the defendant to pay to the claimant the sum of N100 million as general damages for the defendants (sic) refusal or neglect to return the claimants documents.
4. Cost of this action.
Pleadings were duly filed and exchanged. The statement of defence was filed on the 9/1/2017.
The claimant filed a Reply to the statement of defence on the 23/1/2017. After several adjournments to enable the defendant participate in pre-trial, the matter was adjourned for hearing. Hearing commenced on the 28/9/2017. In proof of her case, and in support of her pleadings the claimant called one witness, Elder Johnson Ulu Udensi, Chairman/Chief executive of the claimant who testified as CW1.
Having reviewed the evidence offered by the parties in respect of their respective cases, the lower Court proceeded in its judgment thus: –
“From the pleadings, evidence led and address of counsel, the issue for determination simply put is whether the claimant is entitled to the reliefs sought. From the evidence before the Court there are certain facts that are not in dispute namely:
1. That claimant is a customer of the defendant’s bank.
2. That the defendant’s bank granted the claimant a facility which was repaid.
3. That following the repayment the claimant wrote several letters asking for the return of the documents used as collateral.
4. That the first letter was written on the 23/2/2015.
5. That claimants (sic) lawyer also wrote to the defendant.
6. That the defendant deducted the sum of N2,317.00 from the claimants (sic) account on the 30/4/2015 for processing the return of the documents.
7. That the certificate of occupancy of the property at No 2A and 2B Nwachukwu Ave, 96 Ohanku road, Aba and AIIumaco share certificates were released to the claimant, after this suit was filed.
These facts are established and require no further proof. See …
Was there a cause of action as at 9th December 2015, when this suit was filed. It is settled that a cause of action is a factual situation, the existence of which entitles a claimant to obtain a remedy against the defendant. It consists of facts which constitute the essential ingredients of an enforceable right or claim. See … In the instant case, there is evidence before the Court that the claimant made several demands for the return of her documents and that the defendant did not return same until after this suit was filed. There was clearly a cause of action as at the time this suit was filed. This suit was filed on the 9th day of December 2015. On the 11th day of December 2015, two days after the suit was filed, the defendant wrote to the CW1 to come to the Bank to collect his title documents.
As stated earlier, it is not in dispute that the documents, the subject matter of relief No. 1 have been released to the claimant, that relief has therefore been overtaken by events.
In this suit, the claimant seeks the sum of N100 million as special damages. As submitted by learned counsel for the defendant in his address, it is trite that a claim for special damages must be specifically pleaded and strictly proved. See …
It is the claimants (sic) pleadings in paragraph 6 of her statement of claim and in her evidence that she applied for a N100 million naira facility from Zenith Bank Plc. She could not take that facility as her documents were not released by the defendant. In paragraph 10 she pleads she would have generated N100 million naira profit if she had been granted that facility, this is because, there was high demand for petroleum products on a daily basis. The evidence of CW1 is in line with his pleadings.
It is however my view and as submitted by learned counsel for the defendant in his address that a claimant who seeks special damages must place before the Court concrete evidence demonstrating in no uncertain terms the loss or damage he has suffered. The pleadings and evidence must be such that it will be clear how the claimant arrived at the amount claimed. In the instant case, there is no doubt that the claimant applied for a N100 million naira facility from Zenith Bank Plc (See exhibit E1), and that Zenith Bank Plc gave requirements for that request to be approved (See exhibit E). The claimant did not state how she arrived at the fact that profit, she would have made was one hundred million naira. I am not satisfied that the claimant has demonstrated she is entitled to this relief.
The claimant seek (sic) the sum of N100,000,000.00 (one hundred million naira) as General damages. Unlike Special damages, General damages are such that the Court will presume to be the direct, natural or probable consequence of the act complained of. See … It is compensation which the law presumes flows naturally from a defendants (sic) conduct.
Is the claimant entitled to general damages?
There is no doubt the claimant repaid the facility and was therefore entitled to the return of its documents deposited as security. It is the evidence before the Court which I believe, that after repaying the facility, the claimant wrote several letters to the defendant demanding the return of the claimants (sic) title documents. See exhibits C1, C2 and C3, dated, 23/2/2015, 9/4/2015, 22/7/2015, respectively. There is no evidence before the Court to prove that the claimant and defendant were in talks for the renewal of that facility, after it expired in January 2015. It is the uncontroverted evidence of CW1, that a customer who wished to renew a facility with the defendant, must write to the bank three months before the expiration of the facility indicating an intention to renew. There is no evidence that the claimant wrote any such letter. Furthermore, the letters (sic) exhibits C1 to C3 show clearly that as far back as 23rd February 2015, barely a week after the facility expired, the claimant wrote demanding the release of the documents subject matter of this suit. I find as a fact that there is no evidence that as at the time the facility expired the claimant was negotiating for a renewal.
It is the claimants (sic) evidence that the defendant did not respond to the demands for the release of the documents as a result she briefed a lawyer who wrote exhibit F. The defendant on the other hand tendered exhibit K dated 14/4/2015. A consideration of exhibit K shows that an unnamed person wrote in ink the words “received” and date “14/4/2015” on the letter. In his evidence and in his reply to the statement of defence, the CW1 denied ever receiving such a letter. The onus is therefore on the defendant to prove that the letter was delivered to the claimant and received by the CW1 or any staff of the claimant. There is however nothing to show that it was the claimant, her Managing Director or any staff of the claimant that received that document. The defendant has failed to discharge that onus.
From the evidence before the Court, I find as a fact that there is no credible evidence before the Court to show that between February, 2015 and November, 2015 when claimants counsel wrote to the defendant, any steps were taken to offer any explanation to the claimant for failure to release the documents upon demand. The first demand was made on 23/2/2015 and it was only after the letter written by claimants (sic) counsel exhibit F, and after this suit was filed, that the defendant by a letter dated 11/12/2015 (ten months after the first demand), asked the claimant to come to its branch to take the documents.
Had the defendant any justification for failing to return the title document? I think not. In one breath, it is the evidence of DW1 that the documents were not returned as the parties were still negotiating a renewal of the facility (which I do not believe), and in another breath that the defendant informed the claimant that the process of releasing the documents would take some time owing to the process involved. DW1 did not state when the claimant was informed of this. This is particularly relevant as the claimant denies any such communication. As stated earlier, the first letter was written by the claimant on 23/2/2015, and there was no response until the bank deducted the sum of N2,317.00 on the 30/4/2015 for “processing”, and no further response until this suit was filed in December 2015. I can find no justification for the unwarranted delay and refusal of the defendant to release the documents until over 10 months after the first demand which period was clearly unreasonable. In my view, the refusal or neglect of the defendant to return the documents was a violation of claimants (sic) legal right for which it is entitled to general damages. See …
In considering the amount of damages to award, I have considered the length of time it took to release the documents, the fact that as at 2016, the property was still encumbered (See exhibit G1 and G2), the frustration suffered by the claimant, and the purchasing power of the naira. After a careful consideration of the pleadings, and evidence led, I am satisfied that the claimant has proved on the preponderance of evidence and balance of probability that it is entitled to the claim for general damages. Judgment is entered for the claimant as follows:
1. The sum of ten million naira General damages.
Court: The claimant is awarded costs fixed at N50,000.00. (fifty thousand naira only).”
Being aggrieved with the judgment of the lower Court, the Appellant initiated the instant appeal by lodging at the registry of the said Court on 16/8/2018, a notice of appeal dated 14/8/2021. The notice of appeal contains three grounds of appeal and the said grounds of appeal with their respective particulars read: –
“Grounds of Appeal
GROUND 1: The trial Court lacked jurisdiction to entertain the suit as constituted for lack of locus standi of the Claimant/Respondent to maintain the suit in its capacity.
PARTICULARS OF MISDIRECTION
1. The title documents and Allumaco Share Certificate which is the subject matter of the suit belonged to one Johnson Udensi and not the Claimant/Respondent who sued.
2. The action of the Claimant/Respondent is founded on the tort of detinue. In action for detinue it is strictly the owner of the property that can sue for the detention of the property or any loss therein.
3. The Claimant/Respondent cannot maintain an action and take benefit on a cause of action that does not belong to it.
4. The Claimant/Respondent was merely a meddlesome interloper in the action constituted at the trial Court and the Court erred to have entertained the suit and awarded benefit to the Claimant/respondent.
GROUND 2: The learned trial Judge erred in law when he awarded a damage of N10,000,000.00 (Ten Million Naira) in favour of the Claimant/Respondent in an action founded on detention and detinue of mere title documents and share certificates.
PARTICULARS OF ERROR
1. Having returned the title document, the Claimant action in detinue for detention of title documents extinguishes and becomes a mere academic exercise for that is the crux to sustain an action in detinue.
2. Damages are not automatically awarded for detention of title document as it is not a chattel on itself per se or a class of an income generating Chattel that detention of some entitles the owner to damages.
3. The Court was in grave error after its holding that the Claimant could not prove the damages or loss it suffered in the said detention or detinue of the title document but still proceeded to awarded damages in favour of the Claimant/Respondent.
GROUND 3: The trial Court did not exercise its discretion judiciously and judicially in awarding the quantum of damages of N10,000,000.00 to the Claimant.
PARTICULARS OF ERROR
It is trite law that judicial discretion ought to be exercised judiciously and judicially.
The learned trial Court failed to make a holistic assessment of all facts before him and hence made an award of damage that occasioned grave miscarriage of justice.
The reliefs which the Appellant seeks from this Court are: (i) to allow this appeal; (ii) to set aside the judgment of the trial Court; and (iii) any further orders the Court may make in the interest of justice.
The appeal was entertained on 11/2/2021, with learned counsel, C.H. Onyiuke, adopting and relying on Appellant’s brief of argument dated 21/8/2019 and filed on the same date but deemed as properly filed and served on 22/7/2020, in urging the Court to allow the appeal. In the same vein, K.I. Oleh of counsel adopted and relied on Respondent’s brief of argument dated 9/10/2020 and filed on 12/10/2020, but deemed as properly filed and served on 19/10/2020, in urging this Court to dismiss the appeal.
The Appellant formulated 2 issues for the determination of the appeal in its brief of argument. The issues are: –
“(a) Whether from the nature of the suit, the respondent did not lack the locus standi to institute the action (alone) in which case the trial Court lacked the requisite jurisdiction to entertain the suit. (Ground 1)
(b) Whether the award of N10 million as general damages was proper in the given circumstances of the suit and a suit founded in detinue.”
The instant appeal will be determined on the issues formulated by the Appellant. This is more so as the Respondent (even though it recouched the said issues) adopted the issues formulated by the Appellant as being apt for the determination of the said appeal, in its brief of argument.
APPELLANT’S ISSUE 1 – WHETHER FROM THE NATURE OF THE SUIT, THE RESPONDENT DID NOT LACK THE LOCUS STANDI TO INSTITUTE THE ACTION (ALONE) IN WHICH CASE THE TRIAL COURT LACKED THE REQUISITE JURISDICTION TO ENTERTAIN THE SUIT. (GROUND 1)
Dwelling on this issue, it is the position of the Appellant that the Respondent (i.e. the claimant) in the instant case lacked the locus standi to institute the instant action in its name alone; considering that the suit is one founded in dentinue. That it does not matter that the Respondent was its (Appellant’s) customer. This is because, the documents of title which formed the basis and cause of action in this suit, all bear the name: “UDENSI JOHNSON ULU” and reference was made to pages 119-133 of the record of appeal (hereafter to be simply referred to as “the records”). This is more so as it is from the Respondent’s Exhibits as tendered that the lower Court could have gleaned the absence of proper parties before it and the said Court should have exercised its power of either asking the parties to address it on the state of the parties before it or should have struck out the instant suit. The Appellant stressed that the owner of the properties to which the “presents” or title documents relate, is stated therein to be “Johnson Ulu Udensi” or “Johnson U.E. Udensi” and that the Respondent was nowhere stated as the owner of the documents.
The Appellant submitted that by the legal incidences of corporate entity and legal personality the name “Udensco Line Nig. Ltd” (i.e. Respondent on record) is a distinct person or personality from “Johnson Ulu Udensi” who owns the various properties and that it was of no moment that the Respondent was its (Appellant) customer. It is the stance of the Appellant that at the very best, what existed between it and the Respondent was a tripartite arrangement in which the owner of the property detained ought to be the main claimant and the case of Salomon v. Salomon [1897] A.C.22, H.L., amongst others was cited in aid. It is the stance of the Appellant that the Respondent by instituting the instant case in its own name alone or solely, in such an arrangement as before now stated, robbed the lower Court of the composite jurisdiction to adjudicate over the suit as between the parties as constituted. Having argued further on the issue of jurisdiction particularly from the angle of proper parties, the Appellant submitted that “improper parties” would rob the party that sued of locus standi and by extension rob the Court of its jurisdiction to adjudicate over the parties and subject matter.
Having disclosed that although, the issue of jurisdiction it has now raised was not raised before the lower Court, the Appellant submitted that once an appellate Court finds that an issue borders on jurisdiction, there is no need to obtain the leave of Court to raise such fresh issue, in an appeal.
Dwelling on this issue, which it simply couched as “Whether the Respondent lacked the locus standi to maintain the suit alone; and whether this is an issue of jurisdiction”, the Respondent disclosed that it was approaching the matter from these angles, to wit: (i) is the issue of locus standi really in issue in this suit or was it contrived by the Appellant; (ii) was Chief Johnson U. Udensi a necessary party in the suit; (iii) does non-joinder of a party raise the issue of jurisdiction; (iv) is this not a new issue, requiring leave of either the lower Court or this Court.
It is the stance of the Respondent that the non-joinder or mis-joinder of a necessary party, is at best a procedural irregularity which does not in any way affect the jurisdiction of the Court or the competence of a suit. It is also the stance of the Respondent that the onus is on the Appellant who raised the issue of the non-joinder of “JOHNSON ULU UDENSI” as a necessary party to prove how necessary the said “JOHNSON ULU UDENSI”, is in the suit. In other words, that it is for the Appellant to prove that “JOHNSON ULU UDENSI” is not only a necessary party but a desirable party. Having stated the circumstances when a party needs to be joined in a suit, the Respondent submitted that “JOHNSON ULU UDENSI”, who incidentally was its (Respondent’s) only witness, is neither a necessary party nor a desirable party having regard to the issues before the lower Court. The Respondent stressed that the issue about “JOHNSON ULU UDENSI” and the ownership of title document and non-joinder, etc, as raised by the Appellant, were not raised before the lower Court. That they were not issues in the suit at the trial, and are fresh issues being raised for the first time, in this Court on appeal. That it is clear (i) that the Appellant did not consider the point as necessary while drawing its statement of defence; and (ii) that being new points or fresh issues not raised at the trial, leave is required to raise them, before this Court. The Respondent submitted that the Appellant contrived the issue of locus standi, in the instant appeal, in the hope that this will obviate the need for leave. This is more so as the Appellant in paragraph 3.2 on page 2 of its brief of argument stated thus: –
“The Respondent as Claimant in the trial Court made out a case that she was a long standing customer of the Appellant (Defendant) Bank with account No. 0017884571. For a period spanning about thirty (30) years as such customer, the Respondent had been applying for and enjoying credit facilities from the Appellant. As security for such credit facilities, the Respondent had always used her title documents which included the documents in issues.”
Elaborating on the issue, that the Appellant did not raise the issue of locus standi before the lower Court, the Respondent made reference to paragraph 7 of its statement of claim and the Appellant’s admission of the facts in paragraphs 7 of the statement of defence, “i.e. that the said JOHNSON ULU UDENSI was not mentioned by both parties and was not a party to the facility granted.”
The Respondent submitted that the parties were ad idem on the complaint that the Appellant deducted the sum of N2,317 from its (Respondent’s) account on 30/4/2015, towards fulfilling the request for the title documents, though the Appellant never process the request. That the averments in paragraphs 1, 2, 3, 4, 7, 9 and 11(1) of the statement of claim were admitted by the Appellant in paragraphs 1, 2, 3, 4, 7 and 9 of the statement of defence. That the case of the Respondent was admitted by the Appellant in the Appellant’s pleading and that there was no issue on the joinder or non-joinder of “JOHNSON ULU UDENSI” as a party. That it is clear to the parties (1) that facility the title documents were used for, was granted to the Respondent; (2) that the Respondent has always used the said title documents to secure facilities, for “donkey years”; (3) that when it (Respondent) wrote severally for the return of the title document, the Appellant never raised any issues that “JOHNSON ULU UDENSI” should have written instead of it (Respondent) writing. That even in the pleadings of the parties, the Appellant never raised any issues about “JOHNSON ULU UDENSI” who was not a party to the facility granted it (Respondent) but at best, was a guarantor for it (Respondent). That it is therefore clear, that the said “JOHNSON ULU UDENSI” could not have been either a necessary party or a desirable party. Having submitted that Appellant’s issue 1, on the authorities is neither an issue of locus standi nor a jurisdictional issue; the Respondent urged this Court to hold that the issue is a new issue, raised without the requisite leave. That the issue (i) is not a jurisdictional issue; (ii) the absence of “JOHNSON ULU UDENSI” in the suit did not defeat the suit; and being a new issue raised without leave, the submissions made by the Appellant on the issue “should be discountenanced and dismissed” by this Court.
The position of the law in respect of locus standi is no longer recondite, that is if it ever was. This is because, the Law Reports are replete with cases decided by the Supreme Court and this Court in which the principles applicable to the said issue of locus standi, have been stated and re-stated. Suffice it to say that, from the many decided case on the issue of locus standi, it is clear that different parameters are applicable to the determination of the question of locus standi in the realm of public law and in the realm of private law. See in this regard the case of OWODUNNI V. REGD TRUSTEES OF CCC (2000) LPELR-2852(SC), (2000) 10 NWLR (Pt. 675) 325, wherein the Supreme Court as far back as 30/6/2000, dwelling on locus standi in the leading judgment delivered by Ogundare, JSC; stated thus: –
“The term ‘locus standi’ (or standing) denotes the legal capacity to institute proceedings in a Court of law. Standing to sue is not dependent on the success or merits of a case, it is a condition precedent to a determination on the merits. It follows therefore, that if the plaintiff has no locus standi or standing to sue, it is not necessary to consider whether there is a genuine case on the merits; his case must be struck out as being incompetent. At common law, the position is that, in the realm of public right, for a person to invoke judicial power to determine the constitutionality of legislative or executive action, he must show that either his personal interest will immediately be or has been adversely affected by the action or that he has sustained or is in immediate danger of sustaining an injury to himself, and which interest or injury is over and above that of the general public. In other words, the plaintiff or claimant must show that he has some justiciable interest which may be affected by the action or that he will suffer injury or damage as a result of the action.
The question whether there is such a justiciable interest or sufferance of injury or damage depends on the facts and circumstances of each case – See generally, the various judgments delivered by their Lordships of this Court in Senator Adesanya v. President of the Federal Republic of Nigeria & Anor (supra). I shall say more on this case later in this judgment.
In Oloriode v. Oyebi (1984) 1 SCNLR 390 at 400, Irikefe JSC., (as he then was) declared: “A party prosecuting an action would have locus standi where the reliefs claimed would confer some benefits on such a party.”
This is clearly the position in private law. A case in point is Amusa Momoh v. Jimoh Olotu (supra) where, in a chieftaincy matter, the plaintiff had pleaded, without more, in paragraph 1 of his statement of claim that he was a member of the ruling house affected by the dispute. Sir Ademola CJN, delivering the judgment of this Court declared:
“In regard to paragraph 1 of the statement of claim and the point raised that the plaintiff has no locus standi in the matter, the learned trial Judge ruled that as this paragraph has not been denied, the plaintiff cannot be said to have no interest. Now, what is the averment in paragraph 1. The plaintiff says that he is a member of the Olukare family. The question may be asked, is it enough for the plaintiff to state that he is a member of the family. Has he not got to state that he has an interest in the chieftaincy. Surely not every member of a chieftaincy family as such has interest in the chieftaincy title. We are of the view that it is not enough for the plaintiff to state that he is a member of the family; he has to state further that he has an interest in the chieftaincy title, and furthermore, state in his statement of claim how his interest in the chieftaincy title arose. It is difficult to say on the pleadings filed that the plaintiff has any locus standi in the matter.”
The position appears to be that in private law, the question of locus standi is merged in the issue of cause of action. For instance, a plaintiff who has no privity of contract with the defendant will fail to establish a cause of action for breach of the contract as he will simply not have a locus standi to sue the defendant on the contract…
A word or two on Adesanya v. President of the Federal Republic of Nigeria (supra). It appears that the general belief is that this Court laid down in that case that the law on locus standi is now derived from Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria, 1979 (re-enacted in Section 6(6) (b) of the 1999 Constitution) which provided:
6(6) The judicial powers vested in accordance with the foregoing provisions of this Section –
(b) shall extend to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”
I am not sure that this general belief represents the correct position of the seven Justices that sat on that case only 2 (Bello and Nnamani JJ.SC) expressed views to that effect…
From the extracts of their Lordship’s judgments I have quoted above, one can clearly see that there was not majority of the Court in favour of Bello JSC’s interpretation of Section 6 Subsection (6)(b) of the Constitution. It will, therefore, not be correct to say that this Court decided in the Adesanya’s case that the Subsection prescribes the locus standi of a person wanting to invoke the judicial powers of the Court. They all seem to agree however, that the Sub-section prescribes the extent of the judicial powers of the Courts. The Adesanya’s case which is in the realm of public law, seems to lay it down that to invoke the judicial power of the Court, a litigant must show sufficient interest or threat of injury he will suffer. I think the interest or injury test applied by the Federal Supreme Court in Olawoyin v. Attorney-General of Northern Nigeria (supra) should remain the yardstick in doing the question of the locus standi of a complainant and this is to be determined in the light of the facts or special circumstances of each case. I do not think that test is affected by Subsection (6)(b) of Section of the Constitution…”
Still on the question of locus standi is the case of ADENUGA V. ODUMERU (2003) LPELR-24860(SC) wherein the Supreme Court in dwelling on the said issue, clearly cited with approval; and also applied its decision in the Owodunni case (supra) amongst others. This is what the Supreme Court stated in the case under reference: –
“Locus standi denotes the legal capacity, based upon sufficient interest in a subject-matter, to institute proceedings in a Court of law to pursue a certain cause. In order to ascertain whether a plaintiff has locus standi, the statement of claim must be seen to disclose a cause of action vested in the plaintiff and also establish the rights and obligations or interests of the plaintiff which have been or are about to be violated, and in respect of which he ought to be heard upon the reliefs he seeks: See …; Owodunni v. Reg. Trustees of CCC (2000) 10 NWLR (Pt. 675) 315.
The interest which a plaintiff alleges must be such, as pleaded, which can be considered to be real not superficial or merely imaginary…
In the present case, apart from the averment in paragraph 1 of the statement of claim, which I set out at the beginning of this judgment, that the plaintiffs are financial members of the 8th defendant, nothing else whatsoever was pleaded as to their interest in pressing for an annual general meeting and the election of new officers. So there is nothing to indicate why they consider that their rights or obligations have been violated to entitle them to seek the various reliefs in the suit they brought. Looking at the averments in the statement of claim as a whole, one fails to see any cause of action in the plaintiffs. This failure to discover the cause of action has enormous bearing on the application for the interlocutory injunction in which the plaintiffs sought and obtained such elaborate and far-reaching orders.”
This is a case which the parties fought on pleadings they filed and exchanged. The case of the Respondent having regard to its statement of claim on pages 4-6 of the records, simply put is that it had been a long-standing customer of the Appellant and that on 17/2/2014, the Appellant granted it (Respondent) an overdraft facility in the sum of N25 million and which was accepted on the same date through its (Respondent’s) Managing Director/Chairman – Chief Elder J.U. Udensi. That on 10/2/2015, it (Respondent) successfully “closed and ended” the N25 million overdraft facility and that having successfully “closed and ended” the said facility, it (Respondent) on 23/2/2015 wrote the Appellant demanding for the return of the title documents it (Respondent) used in securing the facility; but that the Appellant refused to return the documents in question despite repeated demands made in writing for their return; and that this led to the institution of the instant suit.
The instant case is glaringly one in the realm of private law. Having regard to the OWODUNNI CASE (supra) particularly the portions of the case that have been re-produced hereinbefore, it is in my considered view settled that the issue of locus standi in the instant case, is merged into the cause of action. Given this position of the law, and particularly also against the settled position of the law that it is from the statement of claim that the locus standi of a plaintiff or a claimant is determined, I simply find it incomprehensible how it can be properly said by the Appellant that the Respondent who clearly disclosed in the statement of claim that it delivered the title documents the subject matter of the instant case to the Appellant for the purpose of securing a facility of N25 million sought from the Appellant and which was duly granted, the Respondent by the said Appellant, has no locus standi to institute an action for the return of the said title documents after the Respondent had fully “closed and ended” the facility granted it, by the Appellant; given the refusal or neglect of the Appellant to return the said documents despite repeated demands for the same, by the Respondent. The settled position of the law is that it is a plaintiff who brings an action that nominates the issues for determination in the case. In the statement of claim of the Respondent, the case of the said Respondent did not bring to the fore the adequacy or otherwise of the title documents the Respondent seeks to have returned by the Appellant, for the purposes of the facility granted it (Respondent) by the Appellant. The contract or agreement for the facility granted the Respondent by the Appellant having regard to the case of the Respondent in its statement of claim, had been fully executed on the basis of the title documents delivered to the Appellant by the Respondent, and which the Respondent wants returned to it; the said contract having been executed. In the circumstances, I am of the considered view that it is no more than a display of a total non-appreciation of the case of the Respondent as set up in the statement of claim; and indeed, turning the law on the head for the Appellant to now ascribe the lack of locus standi on the part of the Respondent to institute an action for the recovery of title documents given to it (Appellant) for the purpose of a contract which had been duly executed, on the basis that the Respondent cannot seek for the recovery of the documents in question, as the names on the said documents are not those of the Respondent and/or that the actual owner of the documents being sought to be recovered, ought to be a co-plaintiff or co-claimant in the case. This is more so as it is not the case of the Respondent in its statement of claim that the contract for the facility for which the title documents were used, was entered into by it (Respondent) and the actual owner of the said documents with the Appellant. I am of the considered view that the Appellant has only succeeded in showing in the instant appeal, that it is somehow confused about the concept of “cause of action” vis-a-vis concept of “form of action”. It would appear that the Appellant has lost sight of the position of the law that “form of action” no longer determines the justiciability of a case in private law in particular, but that it is “cause of action” that is relevant. In this regard, see the case of SPDC V. OKONEDO (2007) LPELR-8198(CA) wherein this Court per Abba-Aji, JCA; (now JSC), stated thus: –
“It is further contended by the appellant that the respondent has no cause of action. What then is the meaning of a cause of action. The Supreme Court in Akilu v. Fawehinmi (No. 2) (1989) 2 NWLR (Pt. 102) 122 at 169 said that,
“Cause of action has been held to mean every fact which is material to be proved to entitle the plaintiff to succeed, or all those things necessary to give a right to relief in law or equity. See …”
See also … Cause of action had also been defined as “simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person” or “the facts which constitute the essential ingredients of an enforceable right or claim. In other words, cause of action is in effect, the fact or combination of facts which gives rise to a right to sue and it consist of two elements – the wrongful act of the defendant which gives the plaintiff his cause of complaint and the consequent damage”.
In the instant appeal, the wrongful execution of the respondent’s properties and the consequent damage suffered by the respondent gives the respondent the right to sue.
The law is now trite that, where there is a cause of action and a relief is properly claimed, the plaintiff cannot be refused, it simply because he has applied for it under a wrong law. See … Therefore, a claimant who has established a legally recognized injury cannot be turned back on the ground that he has not stated or has wrongly stated the head of law under which he is seeking a remedy. The Supreme Court also per Onu, JSC, in Labode v. Otubu (supra) at page 234 held that a wrong must not necessarily be remediable under a known head of tort before it is justiciable.
In the instant case, the learned trial Judge was right when he held that the nomenclature of torts will not be allowed to blur its consideration of the clear averred facts of the case before it. That it is irrelevant in the determination of this case whether the claim is based on tort of detinue or is based on tort of trespass. I do not see this pronouncement as an abdication of lawful duties to make findings on the issue by the learned trial Judge as submitted by the learned senior counsel for the appellant. The stand of the learned trial Judge cannot be faulted. The Court today is concerned with doing substantial justice on the matter before it, rather than place reliance on hard rules of technicality based on the principle of law that where there is a right, there is a remedy. The maxim being ubi jus, ibi remedum. The distinction that the trial Court is called upon to make and subtitles (sic) have no substance and justification in them, but are nothing more than a dangerous inheritance from the days when forms of action and of pleadings held the legal system in their clutches…”
I am therefore of the considered view that, inasmuch as the Respondent as the sole claimant in the instant case has sufficiently disclosed that it was the one that deposited the title documents, the subject matter of the instant suit to the Appellant for the purpose of a contract for facility it (and not it and the owner of the said documents) had with the Appellant, the said Respondent cannot be denied locus standi in an action brought by it for the return of the said documents after it had “closed and “ended” the said facility in the instant action, on the requirements of the form of action in the tort of detinue.
Also, I am of the considered view that the Appellant would appear not to be abreast with the position of the law that it cannot properly challenge the locus standi of the Respondent to have instituted the instant case without joining issue with the Respondent on that fact, in its statement of defence. This is because, while it is not in doubt that the issue of locus standi conveniently qualifies as a jurisdictional issue, inasmuch as the case of a plaintiff or claimant who lacks locus standi to institute an action, has to be dismissed or struck out; and does not need to be considered on the merit, it is however clear from decided cases that the issue of lack of locus standi is a peculiar species of “jurisdiction” as it were, once the civil procedure rules of a Court have made specific provision(s) as to how such an issue; which is an issue of law, is to be raised. In this regard, I consider the case of DISU V. AJILOWURA (2006) LPELR-955(SC) or AJILOWURA V DISU [2006] VOL. 10 MJSC 78, wherein the Supreme Court dwelled extensively on the issue of locus standi, very pertinent. In the said case, the Supreme Court stated thus: –
“The Plaintiff by paragraph (2) above has shown her interest in the properties in dispute by tracing her relationship to the original owner of the property… At that stage of the proceedings, she has definitely established that she had locus standi to sue the Defendants for her interest in the properties that are subject of controversy.
Now, at that stage, the only way the Defendants/Appellants could challenge the capacity or locus of the Plaintiff to sue them would have been to file a statement of defence which will meet the averment in the statement of claim headlong and disclose her incompetence to file the suit. Without the statement of defence, there was no way the Judge could have been able to determine the issue of locus standi in the circumstance. Although, in determining the locus standi of a party, a careful perusal of the statement of claim will suffice. In a case where the opponent is challenging the capacity of a party to sue i.e. its locus, as in this case, a statement of defence is very necessary. I think even if it is not so provided in the rules of the High Court, common sense dictates that a statement of defence should be filed, in order to assist the Court in deciding the competence of the case before it for the consequence of striking out a suit may be grave on a Plaintiff. See … The objection raised is that of law, being one of jurisdiction. By virtue of Rule 1 of Order 23 of the Lagos State High Court Civil Procedure Rules supra demurrer has been abolished, and so the course open to the Defendants would have been to file a statement of defence raising the objection as I have indicated above. It is in this vein that I agree with the learned trial Judge when he held as follows in his ruling: –
… Being an issue of locus standi, the preliminary objection should have come by way of Order 23 Rule 2 and not Rule 4 under which the learned SAN for the Appellants came in the trial Court. That being the case, the decision of Kawu JSC in the case of Dada v Ogunsanya (1992) 3 NWLR (Pt. 232) page 754 is illuminating. In the judgment the learned Justice considering the position of the law, as regards the concept of locus standi, and how lack of it can be raised said: –
“It is settled law that locus standi is the legal capacity to institute an action in a Court of law-Thomas v Olufosoye (1986) 1 NWLR (Pt. 18) 669, and if a person had no legal standing to institute an action, the Court will have no jurisdiction to entertain his claims- See Madukolu v. Nkendilim (1962) 1 All NLR 587 at 595, (1962) 2 SC NLR 341. The main question raised in issues 1 and 2 for determination in this appeal is whether the issue of locus standi, which is admittedly an issue of law, can properly be raised under Order 22, Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1972 (supra). I think the Court of Appeal, in its judgment fully dealt with the matter and, in my view, correctly construed the provision of the Rules when in its judgment it stated as follows: –
“The question here is whether locus standi can be raised in a motion under Order 22 Rule 4, as appears to have been done in this case. Although, the Appellant was said to have been heard in reply was the issue of locus standi really before the trial Judge on a motion under Order 22 Rule 4? I do not think so…”
It is clear from the strength of the reproduced excerpt of the Dada’s case supra, that the motion in this case was brought and moved under the wrong rule of the Lagos State Civil Procedure Rules, having held that the objection was on locus standi, and not lack of reasonable cause of action. Rule 2 of Order 23 supra is as clear as crystal on the modality of raising an issue of law, which it states should be by pleadings, and the pertinent question to be asked is, if the Appellants failed to file a statement of defence stating their objection, would they be said to have adopted the correct modality? I think not …
For the foregoing reasons, I resolve the two issues supra in favour of the Respondent and dismiss all the grounds of appeal. The end result is that the appeal fails in its entirety. It has no merit at all and it is dismissed. It is hereby ordered that the case be remitted to the High Court of Lagos State, where pleadings will be completed. The costs of N10,000.00 is awarded to the Respondent, against the Appellants.”
The instant case in which judgment was delivered by the lower Court on 30/7/2018, is one to which the provisions of the High Court of Imo State (Civil Procedure) Rules 2017, that came into force on 27/2/2017, apply. This is in the light of the provisions of the said Rules which in Order 1 provide thus: –
“Order 1 Rule 1(1)
These Rules may be cited as the High Court of Imo State (Civil Procedure) Rules 2017.
Order 1 Rule 1(2)
These Rules shall apply to all civil proceedings in the High Court of Imo State including all pending part-heard causes and matters, before these Rules came into force in respect of further steps to be taken in such causes or matters.
Order 1 Rule 3
The High Court of Imo State (Civil Procedure) Rules 2008 and the suspended High Court of Imo State (Civil Procedure) Rules, 2014 shall cease to be operational from the commencement of these new Rules.”
Order 15 of the said Rules deals with pleadings. I hereby re-produced provisions of the said Order that I consider relevant for the purpose of the instant appeal.
“Order 15 Rule 1(1)
A statement of claim shall include the relief or remedy to which a plaintiff claims to be entitled.
Order 15 Rule 2(1)
Every pleading shall contain a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved and shall, when necessary be divided into paragraphs, numbered consecutively,
Order 15 Rule 5(1)
Every allegation of facts in any pleadings if not specifically denied in the pleadings of the opposite party shall be taken as admitted except against a person under legal disability.
Order 15 Rule 5(2)
A general denial in any pleadings. shall not operate as denial of any specific fact in the pleadings of the opposing party.
Order 15 Rule 6
Each party shall specify distinctly in his pleadings any condition precedent, the performance or occurrence of which is intended to be contested.
Order 15 Rule 7(1)
All grounds of defence or reply which make a reply to an action not maintainable or if not raised issues which may take the opposite party by surprise or will raise issues of facts not arising out of the pleadings shall be specifically pleaded.
Order 15 Rule 7(2)
Where a party raises any ground which makes a transaction void or voidable or such matters as fraud, Limitation Law, release, payment, performance, facts showing insufficiency in contract or illegality either by any enactment or by common law, he shall specifically plead same.
Order 15 Rule 8
No pleading shall raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.
Order 15 Rule 9
A party may by his pleadings join issues upon the pleadings of the opposing party and such joinder of issues shall operate as a denial of every material allegation of fact in the pleading upon which issue is joined except any fact which the party may be willing to admit.
Order 15 Rule 13
A party may not allege in any pleadings any matter or fact that the law presumes in his favour or as to which the burden of proof lies upon the other side, unless the same has first been specifically denied.
It is also worthy to note that the 2017 Rules of the lower Court having first provided in Order 17 Rule 4 as follows: –
If either party wishes to deny the right of any other party to claim as Executor, or a Trustee or in any representative or other alleged capacity, or the alleged constitution of any partnership firm, he shall deny the same specifically;
went on in Order 22 to provide as follows: –
“Order 22 Rule 1
No demurrer shall be allowed.
Order 22 Rule 2(1)
Any party may by his pleading raise any point of law and the Judge may dispose of the point so raised before or at the trial.
Order 22 Rule 2(2)
If in the opinion of the Judge, the decision on such point of law substantially disposes of the whole proceedings or of any distinct part thereof, the Judge may make such decision as maybe just.”
I am of the considered view that it is clear from the provisions of the Rules of the lower Court re-produced above when read together, that for the Appellant to challenge the locus standi of the Respondent to have brought or initiated the instant case upon the facts pleaded by it (and which the Rules presumes to be proper unless specifically denied), the said Appellant ought to have raised the issue of the lack of locus standi or challenge the capacity of the Respondent to initiate the instant case, in its pleading, i.e. statement of defence. I have painstakingly perused the statement of defence filed in the instant action by the Appellant and which process is on pages 91-94 of the records, and it is clear like crystal therefrom, that the Appellant never challenged the locus standi or capacity of the Respondent to have brought or to have initiated the instant action, either expressly or impliedly. Indeed, instead of challenging the locus standi of the Respondent to have initiated the instant case, the Appellant unreservedly acknowledged the locus standi of the Respondent to have brought the same, when it averred in paragraph 10 of its statement of defence thus: –
“In further answer to paragraph 9 of the claimant’s statement of claim the defendant states as follows:
a. That the Umuocham Branch of the defendant sent the solicitor’s letter to the head office of the defendant immediately.
b. That the defendant immediately speed up the conclusion of the release of the documents which was (sic) sent to the claimant and which the claimant indeed received through the defendant’s letter of 11th December, 2015, acknowledge to by the claimant… The defendant further states that it followed this up by giving the claimant a Deed of Release on the documents.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
It is therefore a display of serious and deliberate misunderstanding of its own case as set up in the statement of defence for the Appellant, in arguing the issue of locus standi (which I totally agree with the Respondent that the Appellant simply contrived) to have submitted that the arrangement in respect of the facility it granted the Respondent and in respect of which the title documents the subject matter of the instant case were delivered to it (Appellant), was a tripartite arrangement. To make a finding in this regard (even though this is not conceding that the case of the Respondent on its pleading nominated this fact for such a finding), the Appellant was duty bound to have specifically pleaded this position by relevant averments. In any case and being guided by the case of DISU V. AJILOWURA (supra), I am of the settled view that the issue of the lack of locus standi on the part of the Respondent to have initiated the instant action not being an issue that was raised at all before the lower Court talk less of its having been raised properly or in accordance with the Rules of the lower Court, never arose for resolution in the instant case. The issue as raised in the instant appeal to the extent that it has not been shown to be discernible from the statement of claim, and as the capacity of the Respondent to have initiated the instant case, having not been challenged in the statement of defence placed before the lower Court by the Appellant, is therefore, a fresh issue which in any event cannot be resolved without evidence being adduced to establish the basis the Appellant relies on in respect of the said challenge. This being the case, the challenge to the locus standi of the Respondent to have instituted the instant case given the basis of the challenge, is clearly not one that this Court can in law countenance no matter the taint of “jurisdiction” the Appellant has scribed to it.
Flowing from all that has been said hereinbefore, is that Appellant’s issue 1, must be and is hereby resolved against it.
APPELLANT’S ISSUE 2 – WHETHER THE AWARD OF N10 MILLION AS GENERAL DAMAGES WAS PROPER IN THE GIVEN CIRCUMSTANCES OF THE SUIT AND AS A SUIT FOUNDED ON DETINUE.
The stance of the Appellant on this issue and with specific reference to the general damages awarded to the Respondent by the lower Court, is that the said Court engaged in a wrong evaluation of evidence in reaching the conclusion that the Respondent was entitled to the award of general damages awarded it. It is the stance of the Appellant that the lower Court made some kind of complete turn having regard to its evaluation in respect of special damages. Having disclosed that its position on the issue at hand is predicated on the assumption that this Court will find that the Respondent on record being a sole claimant is incapable of instituting the instant case; and having also set out what a claimant in an action in detinue must establish by evidence to wit: (a) that he is the owner of the property; (b) that the property was detained by the defendant; and (c) that the defendant refused or neglected to release the property; the Appellant submitted that the lower Court was wrong to have made the award of general damages it made. It is the stance of the Appellant that the award of general damages in the sum of N10 million was based on wrong parameters given the fact that the title documents which had been with it (Appellant) for over 30 years (and the return of which the Respondent never asked for during that period), were eventually returned. That all that the Respondent presumably suffered (though not conceding that the Respondent suffered anything), is the mere retention of the title documents; not a refusal or loss of it. That the law presumes in such a case an award (if at all) of damages of a nominal nature and that N10 million cannot be said to be nominal given the facts and circumstances of the instant case and the case of NACENN (NIG) LTD V. B. A. P. LTD [2011] 11 NWLR (Pt. 1257) 193, was cited in aid. The Appellant submitted that all that the lower Court considered in awarding general damages including what the Court termed “the purchasing power of the naira” made the award to be perverse and uncalled for. That the evidence and facts before the lower Court were not in respect of the value of the various properties or the use to which they would have been put. That the lower Court “went dangerously afield to assume and finalize on such self inflicted and exhumed evidence”. That the lower Court should have restricted itself to what would be nominal damages if at all the Respondent was so entitled to general damages. Having set out the principles that should guide an appellate Court in interfering with an award of damages, and submitting that the award made by the lower Court was based on a wrong principle of law, the Appellant urged this Court to reverse the same. This is because the Respondent never pleaded or gave evidence on all those grounds espoused by the lower Court in arriving at the assessment it made and in exercising its discretion to award the general damages of N10 million. That the Respondent did not in any way, give evidence or prove what it suffered as a company in not making use of the title documents of another person or the value of any rents lost eventually; until same were returned to it. That it was not apparent from where the lower Court germinated its discretion. This Court was urged to resolve this issue in favour of the Appellant.
Dwelling on this issue, the Respondent stated that it is trite, that the judgment of a Court is presumed correct until an appellant demonstrates otherwise. That the Appellant must appeal against the findings of facts made by the lower Court and the Appellant must demonstrate why they are perverse, before this Court can upturn them. The Respondent also stated that “the function of an appellate Court on questions of facts is mainly limited to seeking whether or not there was evidence before the trial Court upon which its decision was based, whether it wrongly accepted or rejected any evidence tendered at the trial, whether evidence called by either party to the conflict was put on either side of the imaginary scale and weighed one against the other. In other words, whether the trial Court properly evaluated the evidence, whether the trial Court properly approached the assessment of the evidence before it and whether the evidence properly admitted was sufficient to support the decision upon the inference drawn there from.”
The Respondent equally stated the position of the law to be that “an appellate Court will not embark on a re-evaluation of the evidence led by the parties in the trial Court simply because a party made an allegation of improper evaluation of evidence and formulated it as one of the issues for determination. An Appellate Court will only do so where a party visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court: (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice.”
Having stated the positions of the law as re-produced above, the Respondent submitted that as the Appellant did not appeal against the 7 specific findings made by the lower Court in its judgment (and which findings have been set out in the portions of the judgment of the lower Court re-produced hereinbefore), it cannot now appeal against the award made in its (Respondent’s) favour as the findings the Appellant did not appeal against, were what the lower Court based its assessment and award of damages on. That the Appellant is lucky that it (Respondent) did not cross-appeal for a higher amount. It is the position of the Respondent that the lower Court did not violate any of the principles in respect of award of damages.
It is indeed true that the lower Court made the following 7 specific findings in its judgment: –
1. That claimant is a customer of the defendant’s bank.
2. That the defendant’s bank granted the claimant a facility which was repaid.
3. That following the repayment the claimant wrote several letters asking for the return of the documents used as collateral.
4. That the first letter was written on the 23/2/2015.
5. That claimants (sic) lawyer also wrote to the defendant.
6. That the defendant deducted the sum of N2,317.00 from the claimants (sic) account on the 30/4/2015 for processing the return of the documents.
7. That the certificate of occupancy of the property at No 2A and 2B Nwachukwu Ave, 96 Ohanku road, Aba and AIIumaco share certificates were released to the claimant, after this suit was filed.
As it has been stated hereinbefore, the Appellant being aggrieved with the judgment of the lower Court, appealed against the same by a notice of appeal containing 3 grounds of appeal. Grounds 2 and 3, in the notice of appeal read: –
“GROUND 2: The learned trial Judge erred in law when he awarded a damage of N10,000,000.00 (Ten Million Naira) in favour of the Claimant/Respondent in an action founded on detention and detinue of mere title documents and share certificates.
GROUND 3: The trial Court did not exercise its discretion judiciously and judicially in awarding the quantum of damages of N10,000,000.00 to the Claimant.”
The lower Court having regard to its judgment never granted the Respondent special damages in any sum at all. So, it is clear as crystal that it is the general damages awarded in favour of the Respondent by the lower Court in the exercise of its discretion, that the Appellant is complaining about having regard to grounds 2 and 3, in the notice of appeal as re-produced above. The settled position of the law is to the effect that in cases where a party is demanding for or claiming general damages, a Court awards the same at its discretion. This is why there are authorities galore that go to show that an appellate Court does not lightly interfere (not that the law prohibits an appellate Court from interfering) with an award of general damages made by a trial Court in the exercise of its discretion. In this regard, see amongst others the case of UBN PLC V. AJABULE (2011) LPELR-8239(SC) wherein the Supreme Court dwelling on damages stated thus: –
“I now move the issue relating to the award of general damages to the tune of N2,000,000:00 (Two Million Naira). General damages are said to be damages that the law presumes and they flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently results from the tort for which a party has sued; that the harm is reasonably expected and need not be alleged or proved. They need not be specifically claimed. They are also termed direct damages; necessary damages. As a general principle, an appellate Court would not interfere with an award of damages by a trial Court simply because faced with a similar situation and circumstance, it would have awarded a different amount. There are, however, some guiding principles. An appellate Court will interfere with an award by a trial Court where it is clearly shown –
1. that the trial Court acted upon wrong principles of law; or
2. that the amount awarded by the trial Court is ridiculously too high or too low;
3. that the amount was an entirely erroneous and unreasonable estimate having regard to the circumstances of the case…”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Given the position of the law as stated above in respect of the power of the lower Court to award general damages in the exercise of its discretion, I am of the considered view that it is a total misconception of the law for the Respondent to argue that the Appellant having not appealed against any of the specific 7 findings made by the lower Court (and which have been re-produced hereinbefore), cannot appeal against the general damages the said Court awarded it (Respondent). This is because, Appellant’s grounds 2 and 3, admit of serious consideration even without any appeal against any of the aforesaid 7 findings. For this purpose, it pertinent to reproduce again what the lower Court stated in respect of the damages sought in the instant case, in order to see whether or not the lower Court based its award on any wrong principle of law in respect of damages. The lower Court stated thus: –
“As stated earlier, it is not in dispute that the documents the subject matter of relief No. 1 have been released to the claimant, that relief has therefore been overtaken by events.
In this suit the claimant seeks the sum of N100 million as special damages. As submitted by learned counsel for the defendant in his address, it is trite that a claim for special damages must be specifically pleaded and strictly proved. See …
It is the claimants (sic) pleadings in paragraph 6 of her statement of claim and in her evidence that she applied for a N100 million naira facility from Zenith Bank Plc. She could not take that facility as her documents were not released by the defendant. In paragraph 10 she pleads she would have generated N100 million naira profit if she had been granted that facility, this is because, there was high demand for petroleum products on a daily basis. The evidence of CW1 is in line with his pleadings.
It is however my view and as submitted by learned counsel for the defendant in his address that a claimant who seeks special damages must place before the Court concrete evidence demonstrating in no uncertain terms the loss or damage he has suffered. The pleadings and evidence must be such that it will be clear how the claimant arrived at the amount claimed. In the instant case, there is no doubt that the claimant applied for a N100 million naira facility from Zenith Bank Plc (See exhibit E1), and that Zenith Bank Plc gave requirements for that request to be approved (See exhibit E). The claimant did not state how she arrived at the fact that profit, she would have made was one hundred million naira. I am not satisfied that the claimant has demonstrated she is entitled to this relief.
The claimant seek (sic) the sum of N100,000,000.00 (one hundred million naira) as General damages. Unlike Special damages, General damages are such that the Court will presume to be the direct, natural or probable consequence of the act complained of. See Kopek Construction Ltd Vs Ekisola (2010) AII FWLR (pt 519) 1035. It is compensation which the law presumes flows naturally from a defendants (sic) conduct.
Is the claimant entitled to general damages?
There is no doubt the claimant repaid the facility and was therefore entitled to the return of its documents deposited as security. It is the evidence before the Court which I believe, that after repaying the facility, the claimant wrote several letters to the defendant demanding the return of the claimants (sic) title documents. See exhibits C1, C2 and C3, dated, 23/2/2015, 9/4/2015, 22/7/2015, respectively. There is no evidence before the Court to prove that the claimant and defendant were in talks for the renewal of that facility, after it expired in January 2015. It is the uncontroverted evidence of CW1, that a customer who wished to renew a facility with the defendant, must write to the bank three months before the expiration of the facility indicating an intention to renew…
From the evidence before the Court, I find as a fact that there is no credible evidence before the Court to show that between February 2015 and November 2015 when claimants counsel wrote to the defendant, any steps were taken to offer any explanation to the claimant for failure to release the documents upon demand. The first demand was made on 23/2/2015 and it was only after the letter written by claimants (sic) counsel exhibit F, and after this suit was filed, that the defendant by a letter dated 11/12/2015 (ten months after the first demand), asked the claimant to come to its branch to take the documents.
Had the defendant any justification for failing to return the title document. I think not. In one breath, it is the evidence of DW1 that the documents were not returned as the parties were still negotiating a renewal of the facility (which I do not believe), and in another breath that the defendant informed the claimant that the process of releasing the documents would take some time owing to the process involved. DW1 did not state when the claimant was informed of this. This is particularly relevant as the claimant denies any such communication. As stated earlier, the first letter was written by the claimant on 23/2/2015, and there was no response until the bank deducted the sum of N2,317.00 on the 30/4/2015 for “processing”, and no further response until this suit was filed in December 2015. I can find no justification for the unwarranted delay and refusal of the defendant to release the documents until over 10 months after the first demand which period was clearly unreasonable. In my view, the refusal or neglect of the defendant to return the documents was a violation of claimants (sic) legal right for which it is entitled to general damages. See …
In considering the amount of damages to award, I have considered the length of time it took to release the documents, the fact that as at 2016, the property was still encumbered (See exhibit G1 and G2), the frustration suffered by the claimant, and the purchasing power of the naira. After a careful consideration of the pleadings, and evidence led, I am satisfied that the claimant has proved on the preponderance of evidence and balance of probability that it is entitled to the claim for general damages. Judgment is entered for the claimant as follows:
1. The sum of ten million naira General damages.
Court: The claimant is awarded costs fixed at N50,000.00. (fifty thousand naira only).”
I have hereinbefore found the Respondent to have locus standi to have brought the instant case, because it was the said Respondent that delivered or deposited the title documents the subject matter of the instant action to the Appellant for the purpose of securing the overdraft facility it (Respondent alone) got from the said Appellant. The locus standi of the Respondent is/was not based or founded on its ownership of the title documents it delivered to the Appellant for the purposes of the facility it procured from the said Appellant. In other words, locus standi was found to be in the Respondent to sue for the return of what it delivered to the Appellant for the execution of a contract it had with the said Appellant as it parted with the documents in the first place for the purpose of executing the contract it had with the Appellant. Indeed, unless the actual owner of the title documents was a party to the agreement that resulted in the granting of the overdraft facility, he cannot in my considered view, institute an action by himself for the return of the title documents in question against the Appellant as he was not a privy to the contract by being a party to the said transaction. The Respondent’s cause of action in the instant case in my considered view, therefore cannot be said to be one of detinue properly so called, given the meaning of detinue. The meaning of detinue has been stated in many cases. One of the cases is the old case of ODUMOSU V. ACB LTD (1976) LPELR-2243(SC) wherein the Supreme Court dwelling on detinue and damages awardable in an action for detinue stated thus: –
“Earlier on, learned trial Judge had said in a passage of his judgment: “The plaintiff claims 50,000 pounds (N100,000) special and general damages. He gave evidence that if he had succeeded in importing the goods for which he required Letters of Credit, he would have made more than a hundred per cent profit which he estimated at N18,000 from the transaction with Ih-Shin Electrical Machinery Works Ltd.
Adebowale Electrical Industries Ltd., was prepared to allow the plaintiff credit facility to the limit of 40,000 pounds … and twenty five per cent discount on all purchases from the company. The plaintiff estimated that he lost N20,000.00 on that deal. The plaintiff had had business dealing with Phillips Nigeria Ltd., to which he was indebted. The company was prepared to allow him credit facility with twenty five per cent discount on purchases….”
The learned trial Judge then referred to a passage in the judgment of Coker, JSC., delivering the judgment of this Court in Oshinjinrin & Ors. v. Alhaji Elias & Ors. (1970) 1 All NLR 153 dealing with the issue of proof of special damages, which reads: –
“…what is required is that the person claiming should establish his entitlement to that type of damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head, otherwise the general law of evidence as to the proof by preponderance or weight usual in civil cases operates.”
We pause to observe, once again, that this claim is in detinue, primarily the claim in this type of action is not for damages but for the return of the specific goods wrongfully detained (or their value as assessed). Damages, however, if any, if proved to have been sustained, will, in addition to an Order for delivery of the chattels (or specific goods) be awarded. (See …)
The measure of damages for detention of goods (i.e. in detinue) is peculiar and the normal measure is usually –
(1) the market value of the goods where delivery of the specific goods detained has not been ordered; and
(2) even in the cases where an order for the return of goods has been made, a sum of money representing the nominal loss through the detention of the goods; and this (when applicable) quite often is the market rate at which the goods could have been hired during the period of detention.
In those cases, therefore, where the goods, the subject matter of the action for detinue, have not (as such) been profit-earning, it is extremely difficult to assess the damage to the plaintiff (see …)
However, the plaintiff is entitled to damage for loss arising from his inability to make use of the specific goods; and this can be recovered under either head of damage – general or special. Dealing with the subject of damages in detinue, the learned authors of Halsbury Laws of England (in Vol. 38 of the 3rd Edition (1962) at p. 795, Article 1321), state: –
“Apart from the question of the general value of the goods the plaintiff may be able to show that he has suffered special damage by their detention or conversion. Such damage, if claimed, and if the reasonable foreseeable result of the defendant’s unlawful acts, is recoverable……” (Underlining supplied).
Where, however, the plaintiff particularizes items of special damage, then he must establish the same by evidence.
At this stage, we will draw attention to the observations by the learned authors of Mayne & McGregor on Damages on the expression “General and Special damage” to the effect that- “the terms are used in a variety of meanings and if these meanings are not kept separate the indiscriminate use of the terms only spells confusion” … Thereafter the learned authors dealt with three meanings of the expression and it is with what they describe as the second and third “meanings” (and these relate to pleadings and proof) that we are concerned in this appeal. Much of the contention and submission in support of this appeal, in our view, stems from failure on the part of learned counsel (for the appellant) to draw a clear line of distinction between the Rules relating to proof of special and general damages.
“General damages … are such as the jury may give when the Judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of reasonable men….”
…
From the point of view of proof (evidence), general damages are classified into two categories –
(1) that in which they (damages) may either be inferred (e.g. in cases of defamation or personal injury to the plaintiff when pain and suffering may be presumed); and
(2) that in which they will not be inferred but must be proved (for instance, damages arising by way of general loss of business following an injury). Even in regard to this later category evidence will not be allowed to be given by a plaintiff of loss of a particular transaction or customer (following the injury with a view to showing specific loss for that is a matter which falls in the realm of special damage; and “if there be any special damages which is attributable to wrongful act that special damage must be averred and proved, and if proved will be awarded…”
Special damages, therefore, consist of items of loss which have to be particularized or specified in the plaintiff’s pleadings (as the appellant has done in the instant case) in order that he may be permitted to give evidence thereof and recover thereon. The significance of our observations in the above two paragraphs will appear later in this judgment when we make reference to the award by the trial Court of N8,000 as “general damages”.
So much was the evidence adduced in support of the claim for special damages by the appellant. While the above is, indeed, evidence on which to make some award in respect of general damages, it certainly cannot be regarded, no matter however stretched, as evidence in support of special damage in the context of the present case; therefore, insofar as they were proffered to bolster the appellant’s claim to his “particular losses” (i.e. items of special damages), they are no doubt “speculative”.
There is need, we think, for comment on the award in respect of general damages. Although, there is no appeal from that award, we may mention, in passing, that the award is seemingly inordinate. As already pointed out a claim in detinue is basically for the return of the specific chattel detained or its value (as known or assessed); general damages for unlawful detention may, if any is established, be awarded (for they are not to be presumed in this type of action); and even then they are, generally, nominal, unless the evidence establishes a case for substantial award under this head of damages. In the circumstances of this case, the respondents knew the purpose for which the documents were required by the appellants; when, therefore, the appellant failed to pursue and conclude his arrangements with his overseas and local business associates because he could not get the documents, the respondents ought to be liable for damages following, by general loss, his inability to do so. The question really is, whether the damages suffered in this category (i.e. general damages) scaled as high as N8,000.00. In other words, in the light of our earlier observations on the measure and proof of damages in actions for detinue in particular, and, generally, on proof of general damages whether the evidence in this case supports the award of as much as N8,000 under this head of damages. That, however, is a question we are not called upon to answer in this appeal. However, with regard to the question raised directly in this appeal, damages which may result from the appellant’s inability –
(1) to sell (de facto) the goods which he might have received had he concluded his local and overseas business arrangements; and
(2) to sell the same at a profit, the credit facilities extended to, or discounts allowed in favour of, the appellant notwithstanding, are clearly matters which cannot be presumed; they are matters which call for specific proof (within the principles clearly stated by this Court in Oshinjinrin’s case, supra) and such proof was, unquestionably, absent in the instance case.
Accordingly, we had no difficulty in dismissing this appeal immediately at the end of the arguments urged upon us on the 20th October, 1976.”
The Supreme Court in many cases has had cause to admonish Courts regarding the award of damages and has made it very clear that before a Court can commence a meaningful assessment of damages, it must be sure of the nature of the claim, that is to say, whether the claim is in contract or in tort, if in tort, the nature of the wrong alleged. This is because, in an action for breach of contract, the measure of damages is the loss flowing naturally from the breach and is incurred in direct consequence of the violation (i.e. the object of contract damages is to put the plaintiff in the position he would have been in if the contact had been satisfactorily performed); while the object of tort damages is to put the plaintiff in the position he would have been in if the tort had not been committed. Furthermore, the Courts have consistently held to the effect that damages in respect of the items or acts where pecuniary losses have crystallized in terms of cash and values before the trial and the entitlement of a plaintiff to damages in respect of the same, ought to be specifically pleaded and proved. See amongst many others, the cases of AJIGBOTOSHO V. RCC (2018) LPELR-44774(SC), OBASUYI V. BUSINESS VENTURES LTD (2000) LPELR-2155(SC) and SOETAN V. OGUNWO (1975) LPELR-3089(SC).
It is also the law that where a plaintiff claims special damages but fails to prove the same, a Court cannot properly compensate the said plaintiff for the special damages he did not prove by an award in general damages. See in this regard the cases of BADMUS V. ABEGUNDE (1999) 1 NWLR (Pt. 627) 493 and SPDC V. TIEBO (2005) 9 NWLR (Pt. 931) 439. What the lower Court has done in awarding general damages in the sum of N10 million against the Appellant in the instant case, in my considered view is clearly more of compensating the Respondent to some degree in general damages for the special damages, the said lower Court in my considered view, rightly refused to grant the said Respondent (and in any case there is no appeal against the dismissal of the Respondent’s claim for special damages). This much would appear to be clear from the reliance by the lower Court on the fact that as at 2016, the property was still encumbered, in exercising its discretion to award general damages. This is despite the fact that the fact of the “encumbered property” was pleaded in support of the Respondent’s claim for special damages and which the lower Court refused to grant. In this regard, see “the 2nd of the paragraphs 9” in the Respondent’s reply to the Appellant’s statement of defence which states thus: –
“The claimant avers that having not received the Deed of Release, the document was still showing as encumbered and he could not access a hundred million naira facility from Zenith Bank Plc. A search result from the Abia State Geographic Information System (ABIAGIS) dated 12th February, 2015 and receipts of payment dated 8th February, 2016 are hereby pleaded and shall be relied on in this trial to show that the property was still encumbered by 12th of February, 2016.”
The lower Court in my considered view, also did not avert its mind to the position of the law that a claim or relief for damages for the tort of detinue properly so called (and which it inferentially took or assumed the claim for general damages sought by the Respondent to be), is grounded in the ownership and unlawful detention of the good (or item) that is unlawfully retained by the person having possession or custody of the said good or item. See in this regard the case of UNITED DOMINIONS CORPORATION LTD V. LADIPO (1971) LPELR-3407(SC), (1971) All N.L.R 104, wherein the Supreme Court, dwelling on “what a party must possess to maintain an action in detinue” long ago stated thus: –
“As we have stated the plaintiff had in our view no right to maintain an action in detinue. We said, in Salisu Barau v. Caleb Brett & Sons (Nigeria) Ltd. S.C. 400/67 (unreported) of the 17th May, 1968: “When an action is brought in detinue it is brought for the specific recovery of personal chattels wrongfully detained from the person entitled to the possession of them and for damages occasioned by the wrongful detainer, and examples of how the claim should be brought can be seen in Bullen and Leake’s Precedents of Pleadings, 11th edition, page 427.” Here though the plaintiff had the physical possession of the car he had not, once the hire-purchase agreement was terminated, got the right or entitlement to possession so that once the actual possession was lost he was not entitled to bring an action in detinue against the owners of the car. The hire-purchase agreement conferred a limited interest in the car on the plaintiff/hirer, but with the termination of the agreement that limited interest was itself terminated, and the owners had the immediate right to possession.”
See also the case of UMORU V. IJUMU LOCAL GOVERNMENT COUNCIL (2010) LPELR-19759(CA).
The question might be asked as to who the lower Court was compensating in general damages, when it is not the case of the Respondent on its pleadings, that it (Respondent) as the owner of the title documents in question, delivered them to the Appellant; and that it (Respondent) demanded for the return of the said title documents, in its capacity as the owner of the said title documents. The case of the Respondent on its pleadings, is to the effect that it is entitled to no more than the mere possession of the said documents for its use in securing credit facilities, and that it (Respondent) suffered special damages for its inability to have used the title documents in question for the normal use it (Respondent) wanted to put them, with Zenith Bank Plc. I am of the considered view, that the Respondent having not established that whatever special damages it allegedly suffered, flowed from the normal use it would have put the said documents to, the lower Court was only surreptitiously compensating the actual owner of the said title documents inasmuch as the owner of the said title documents, was the person entitled to the immediate possession of his title documents; and this the lower Court did, even as the said owner was not a party in the proceeding. The Respondent not being the owner of the title documents and being entitled to a physical possession of the title documents after it had “ended” and “closed” the overdraft facility it procured from the Appellant, in my considered view, (for whatever purpose it may deem expedient to put the title documents), cannot properly or rightly claim the documents in question as its own; and cannot claim damages for the non-return of the said documents as if they were its own documents. Whatever damage(s) the Respondent can claim for the retention of the title documents by the Appellant, in my considered view must and can only be special damages for whatever the retention caused it, in the course of its normal business; and this the lower Court found the Respondent not to have proved.
Flowing from all that has been said, is that the lower Court clearly not only misconceived the position of the law as it relates to award of general damages to the Respondent who as a party did not establish its ownership or right to ownership of the title documents the “unlawful retention” of which it was awarded general damages; but also that the lower Court by the award of general damages in the instant case, was only giving the Respondent as it were, a lesser quantum of its monetary claim in special damages which it rightly claimed but which it never established. By doing these, the lower Court has glaringly not acted judiciously and judicially in that it has at least been demonstrated that the said Court acted upon wrong principles of law in awarding the Respondent general damages in any sum. The award of general damages was not available to or for the Respondent having regard to the case it set up in its pleadings. Appellant’s issue 2 therefore must be and is hereby resolved in its favour and the award of N10 million general damages, made by the lower Court to the Respondent, is hereby set aside.
In the final analysis, the instant appeal is meritorious as it succeeds partly; given the resolution of Appellant’s issue 2, in its favour. Accordingly, the aspect or portion of the judgment of the lower Court granting the Respondent general damages in the sum of N10 million, is hereby set aside; while the other aspects or portions of the said judgment, are upheld.
I make no order as to costs as the appeal succeeds in part, only.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother, AYOBODE OLUJIMI LOKULO-SODIPE, JCA, where the facts and contentions of Counsel to the parties have been set out and determined. I also allow the appeal in part and subscribe to the orders made by my learned brother.
AMINA AUDI WAMBAI, J.C.A.: I agree.
Appearances:
C.H. ONYIUKE For Appellant(s)
K.I. OLEH For Respondent(s)
