WEMA BANK PLC v. MR. PHILIP AJAH
(2019)LCN/13356(CA)
In The Court of Appeal of Nigeria
On Friday, the 24th day of May, 2019
CA/OW/400/2017
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
WEMA BANK PLC – Appellant(s)
AND
MR. PHILIP AJAH
(Trading under the name and Style, “PHILIP AJAH STORES”) – Respondent(s)
RATIO
WHAT CONSTITUTES A CLAIM IN DETINUE
The parties are ad idem as to what constitutes a claim in detinue, and have placed reliance on the case of Aminu Ishola Investment Ltd Vs Afri Bank Nig. Plc (2013) NSCQR 717; Amico Const. Co. Vs Actec International Ltd (2015)17 NWLR (Pt.1487), and Enterprise Bank Ltd Vs Deaness Florence Bose Aroso & Ors (2014)3 NWLR (Pt.1394) 256, where the ingredients to establish a claim in detinue were stated, as follows:
1) That the claimant is the personal owner of the property/chattel in question;
2) And has immediate right to possession of the property/chattel;
3) That the defendant is in actual possession of the property/chattel;
4) That the claimant has made proper demand on the defendant to deliver up possession of the property/chattel to him; and
5) The defendant has, without lawful excuse, refused or failed to deliver up the property/chattel to him ? Claimant. PER MBABA, J.C.A.
WHEN A DETENTION IS SAID TO BE WRONGFUL
A detention is not wrongful unless the defendant?s possession is adverse. Accordingly, for an action in detinue to succeed, the defendant must have shown a definite intention to keep the chattel in defiance of the plaintiff?s rightful claim thereto and this is usually manifested by proving a demand by the plaintiff, and a refusal by the defendant to return or deliver the chattel to the plaintiff. When, however, the refusal is conditional, a case of withholding the chattel against the will of the plaintiff is not necessarily established, provided the condition is reasonable and not a mere device to put off the plaintiff.? Per Iguh JSC. See also Chigbu Vs Tonimas Nig. Ltd & Anor. (2006) LPELR ? 846 (SC); Enterprise Bank Ltd. Vs Aroso (2014)3 NWLR (Pt.1394) 256; Enterprise Bank Ltd. Vs Akadiri (2018) LPELR ? 4432 (CA); Mothercat (Nig) Ltd. & Anor. Akpan (2019) LPELR ? 47158 (CA). PER MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This Appeal emanated from the decision of Abia State High Court in Suit No. A/36/2013, delivered on 19th July, 2017, by Hon. Justice Onuoha A.K. Ogwe, wherein the learned trial Judge entered Judgment for the plaintiff (now Respondent), with the follows orders:
“(a) An order for Defendant to return the original copies of the claimants shop OBLG/AIM/B2/, (b) OBLG/AIM/B8, (c) ME7 and PE18 forthwith to Claimant.
b) Defendant shall pay over the N64,000.00 forth with to claimant
c) Defendant shall pay general damages of N20,000.000.00
d) Cost assessed at N100,000.00 to claimant.? (See page 161 of the Records of Appeal)
The plaintiff, trading under the name and style of Philip Ajah Stores, had sued the Defendant (now Appellant) on 12/2/13, seeking the following:
?Wherefore the claimant is indemnified and claims as follows:
?a) The Sum of N120,064,000.00 (One Hundred and Twenty Million, Sixty Four Thousand Naira), being special, aggravated and general damages, arising from the unlawful conduct of the defendant in seizing the
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original copies of the title deeds to the Claimant?s 4 shops and frustrating all the claimant?s efforts to use the said title deeds to either seek loan facilities from other sources or even sell the same to raise funds for his business.
b) An order for the defendant to return the original copies of the title deeds to the claimant?s shops Numbers:
(i) OBLG/AIM/B2/2 and
(ii) OBLG/AIM/B8/20, at Ariaria International Market Aba.
(iii) ME 7 & PE 18 at Aba Shopping Centre, Aba.
Particulars of Special Damages
The sum of N64,000.00 (Sixty Four Thousand Naira) collected by the Defendant from the claimant as valuation fees and which the defendant purported to return in her letter to the claimant dated the 5th day of July, 2012 but without enclosing any money, save a photocopy of a cheques.
Particulars of Aggravated Damages
a) The claimant as a result of the conduct of the defendant was frustrated as the defendant denied the claimant of access to the original copies of the title deeds to his four shops to enable the Claimant either to use same to secure loan facilities from other institutions or even
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sell the same and raise money for the sustenance of his business
b) The conduct of the defendant and its subsequent consequences of closing other options through which the Claimant could raise funds has adversely affected the distributorship position of the claimant with Warm Spring Waters Nig. Ltd, the Claimant having failed to meet up with his financial obligations with his said customers and suppliers.
c) The conduct of the defendant in this regard is malicious, wicked and pre-meditated and in disregard of the claimants rights.
d) The defendant having refused to grant the facilities to the claimant had no reason withholding the claimants title deeds till date and refusing all entreaties both oral and in writing to have the same returned to the claimant.
Particulars of General Damages
Mental stress, psychological trauma and the overall embarrassments caused by the defendant to the claimant as a result of this unwarranted seizure of his title deeds, from the month of April 2010 till date.
Wherefore the claimant claims as per writ as follows:
a) N64,000? as special damages
b) N20,000,000.00 (Twenty
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Million Naira) as aggravated damages.
c) N100.000.000.00 (One Hundred Million Naira) as general damages
Total claim N120.064,000.00 (One Hundred & Twenty Million, Sixty Four Thousand Naira)?
(See page 15 to 17 of the Records of Appeal).
After hearing the case and considering the evidence and the addresses of Counsel, the trial Court held for the Plaintiff (Respondent herein).
Dissatisfied, Appellant appealed, as per the Amended Notice and grounds of Appeal, filed on 18/1/18, raising eight (8) grounds of Appeal ? (A to H). Appellant filed its Brief of argument on 18/1/18 which was also deemed duly filed on 10/7/18. He donated four (4) issues for the determination of the Appeal, as follows:
1) Whether the lower Court was right in law, when it held that the Appellant was liable to refund N64,000.00, being a non refundable fee, paid by the Respondent to Mr. Jide Taiwo an estate valuer (Grounds C,E,F, & H)
2) Whether by the pleadings and evidence led in support, the Respondent have established enough proof that the Appellant unlawfully detained his document and loss of earning on preponderance of
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evidence to warrant the lower Court to deliver judgment in his favour (Ground D)
3) Whether the lower Court was right in law when it held that the Respondent was entitled to damages for detinue. (Grounds A & B)
4) Whether the decision of the lower Court in this case conform with principle of law regulating proper and correct, evaluation and appraisal of evidence (Ground G)
Appellant also filed a Reply brief on 10/8/18, in response to the Respondent?s Brief, filed on 24/7/18, wherein he (Respondent) adopted the 4 issues distilled by Appellant for the determination of the Appeal.
?Arguing the Appeal, on 8/4/2019, learned Counsel for Appellant, George Asogwa Esq; (who settled the Brief), on issue 1, said that the condition for the grant of the Bank guarantee to the Respondent was made known to him and he admitted this fact in his letter to the Bank (Appellant) on 15/10/17; he said that the conditions and/or banking practice for the grant of Bank guarantee includes the valuation of the materials and payment of a non-refundable Valuation fee to the Estate Valuer by the Customer (Respondent); he said that was an admitted fact by
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the Respondent. He relied on Agu Vs CBN (2016) LPELR ? 41091 CA, and on paragraph 8 of the statement of defence, where the fact of the amount being a nonrefundable fee, was pleaded. Counsel also relied on the finding of the trial Court, that the money was paid to the Estate valuer and that, by banking practice, the money was not the refundable, whether or not Bank granted the facility (See page 158 of the Records). Counsel therefore found it curious, that the same judge later held that he did not see any evidence that the Bank made this fact known to the Claimant!
?Counsel added that the documents in contention accompanied the Respondent?s application for the Bank guaranty loan facility; that there was no agreement that if the facility was refused, the N64,000.00 deposit would be retuned along with the documents, forwarded, and so it was wrong for Respondent to refuse to the collection of his title documents, unless they were returned with the title documents. He (Counsel) also argued that Appellant was not a privy to the contract of valuation between the Respondent and the Estate Valuer, who collected the N64,000.00 nonrefundable deposit from
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Respondent; he said that the Estate Valuer, Mr. Jide Taiwo, was not a staff of Appellant. He relied on the case of Idufueko Vs Pfizer (2014)12 NWLR (Pt.1420)96 SC, to the effect that:
?The general principle of law is trite and well settled that only parties to an agreement or a contract can enforce same, thus a person who is not a party thereto cannot sue (or be sued) even if the contract was entered into for his benefit and purports to confer on him the right to sue or be sued.?
He also relied on Reichie Vs NBCI (2016)8 NWLR (Pt.1514) 294 SC:
?An action in contract can only be sustained against a person who has privity of contract, in the instant case, there was no privity of contract between the Appellant and Respondent, and that situation could not be transformed merely because the borrowed money from the Appellant was paid to the Respondent.?
?Counsel said though the valuation report was made for the benefit of the Appellant, it does not mean that Appellant was a party to the contract of valuation between the Respondent and the valuer (Jide Taiwo). He added that the fact that Appellant, due to the refusal
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of the Respondent to collect his documents unless the documents were returned with the money, offered to refund the valuation fee paid by Respondent to the valuer, cannot make the contract of valuation enforceable against the Appellant.
On issues 2 and 3, argued together, Counsel said the answers to them are definitely in the negative; he referred us to the meaning of action in detinue and listed what must be proved, to succeed, relying on the Black?s Law Dictionary, 9th Edition; which defines it as:
?A common law action to recover personal property, wrongfully taken or withheld by another?.
A claim in detinue, Counsel said, relied onAminu Ishola Investment Ltd Vs Afri Bank Nig Plc (2013) NSCQR 717 at 741, where it was held:
?It must be clearly stated that in an action for detinue, the gist of the action is the unlawful diversion/detention of the plaintiff?s chattel, which he has immediate right to possess, after the plaintiff has demanded its return.?
Counsel said it is not in controversy, that the Respondent deposited his title document with the Appellant in a bid to secure a bank guarantee,
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but when the bank guarantee failed, due to insufficient collateral, the Respondent, angrily, refused to collect his title documents and further gave condition for collecting the documents, that they must be accompanied by N64,000 being the deposit he paid for cheque/valuation of the collateral. Counsel relied on the case of Amico Const. Co. Ltd. Vs Actee Int?l Ltd. (2015), 17 NWLR (Pt. 1487) CA 146, on what a plaintiff must prove to succeed in a claim in detinue, namely:
1) That he is the owner of the property or chattel in question.
2) That he has immediate right to possession of the property/chattel;
3) That the Defendant is in actual possession of the property or chattel;
4) That he has made proper demand on the defendant to deliver up the property or chattel to him;
5) That the Defendant has, without lawful excuse, refused to failed to deliver up the property or chattel to him.
Counsel also relied on Enterprise Bank Ltd. Vs Deaness Florence Bose Aroso & Ors (2014) 3 NWLR (Pt.1394) 256.
Counsel said the Respondent in this case failed to fulfill the last two conditions; that the crux of the matter
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was that he had not made proper demand for the documents; that the Respondent only made conditional demand that the documents must be returned, together with the money deposit he made; he said that Appellant made several attempts to return the documents to Respondents, but he refused to collect/accept the documents, until same was accompanied with the money deposit. He referred us to the evidence of Appellant?s witness, on page 120 of the Records of Appeal as well as paragraphs 18 ? 32 of the statement on oath by Appellant?s witness. He said that the Respondent had admitted the said depositions in the letter of 15/10/2010 sent to the Appellant ? page 27 of the Records; he added that that evidence was not challenged at the trial. He relied on CBN Vs Okojie (2015)14 NWLR (Pt.1479) 231 SC.
Counsel said the trial Court was wrong, when it held that the Respondent was entitled to damages; he said that the Respondent had not proved his case on the preponderance of evidence to be so entitled, and relied on A.G. Bayelsa Vs A.G. Rivers State 92006)18 NWLR (Pt.1012) 596; and Section 133(1) of the Evidence Act.
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He relied on the case of NDIC Vs Ette (2016)8 NWLR (Pt.1514) CA 345 at 371, on the principle guiding award of damages. Counsel said the trial Court had based the award it made on loss of business profit, without considering the fact that anticipated profit is in the class of special damages, which must be specifically proved. He relied onWema Bank Vs Arison Trading Engineering Co. Ltd & Anor (supra); A.G. Oyo State & Anor. Vs Failakes Hotels Ltd & Anor (Pt.2) 12 SCNJ I. He said that the Respondent did not prove the loss of business/earning/profit as required by law to warrant the award of the general damages.
He relied on Omotosho Vs Saka (2015) All FWLR (Pt.782) 1684 CA to call us to interfere with the award by the trial Court. See also Ohunhur Vs Irever (2015) 1 NWLR (Pt.1439)192 CA; Wema Bank Vs Oloko (2015) All FLWR (Pt.778) CA 980 at 985; Attah Vs IGP (2015) All FWLR (Pt.805)108.
Counsel also added that, assuming the Respondent was entitled to general damages (which it did not concede) that what was awarded was manifestly and unreasonably too high.
?On issue 4, whether the decision of the trial Court conformed with the principle relating to proper
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and correct evaluation of evidence, Counsel answered in the negative. He said that the Court has a duty to properly evaluate and appraise the evidence before to it, and to ascribe probative value to it, and where that is not done, the appellant Court can intervene. He relied on UBA Plc. Vs Lawa (2015)14 NWLR (Pt.1497) 203 at 228 -229 (CA); he added that the decision of Court must be founded on the evidence before the Court, with no room for speculation.
Again, Counsel said there was sufficient evidence to show that Respondent refused to collect the documents after the ill-fated guaranty application, but the trial Court failed to consider/evaluate that evidence, to come to proper conclusion. He relied again on UBA Plc Vs Lawa (supra) on the need for the Appellate Court to intervene or interfere where there is no proper evaluation of evidence.
He urged us to resolve the issues for Appellant and allow the appeal. On his part, the Respondent?s Counsel, L.O. Otti Esq, on issue 1, referred us to paragraph 6 of the statement of claim by the Respondent, wherein he said:
?The said manager (of Appellant) informed the Claimant that he would
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at the end of the investigation and evaluation pay the sum of N64,000 (Sixty Four Thousand Naira) to one Mr. Jide Taiwo whom the Manager, invited to their office as their valuer and to which demand the claimant also complied with. The Wema Bank cheques No.00001351 written in the name of Mr. Jide Taiwo and handed over to the Manager is hereby pleaded and will be relied upon at the trial.?(page 10 of the Records)
He said that the Appellant admitted the above paragraph in its pleading, paragraph 4, when it said:
?The defendant admits paragraph 6 of the statement of claim to the extent that the claimant was informed of the need for him to produce valuation report from a reputable firm as a condition precedent to the consideration of his request for a credit facility? (Page 45 of the Records)
Counsel also referred us to paragraphs 30 and 33 of the statement of defence by Appellant, where the Appellant said that:
in response to paragraph 21 of the statement of claim, that in order to amicably resolve the matter and promote harmonious banking relationship with the claimant, it offered to refund the
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contentious sum of N64,000 to the claimant? The defendant further avers that its officers had several telephone conversations with the claimant wherein the claimant was informed that the bank has now issued a cheque in the sum of N64,000.00. (Pages 47 ? 48 of the Records)
Thus, that Appellant had admitted the special damages and so that fact needed no further proof. He relied on Ogbonna Vs Ogbuji (2014) 6 NWLR (Pt.1403) 205; Alahassan & Anor Vs Ishaku (2016)258 LRCN 73. To the effect that what is admitted requires no further proof.
Counsel said the trial Court, therefore, made the correct findings, when he said:
?I therefore find as a fact that the defendant did not return the documents, despite series of demands for their return. Also, despite promising in writing to refund the N64,000, the defendant failed to do so.? Pages 159 & 160 of the Records.
?On issue 2, Where the Respondent had established enough proof that Appellant unlawfully detained his documents, and loss of earning, on the preponderance of evidence, Counsel answered in the affirmative. Counsel said that there was evidence that the
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Respondent made demand for the return of his documents, immediately after the refusal of the Bank guarantee, but Appellant ignored the demand. The Respondent then wrote Exhibit H on 15/10/2010; that on 27/7/2011, the Respondent?s solicitor wrote Exhibit J to press home the demand, and this was further ignored by Appellant, who continued to seize and detain the documents. On 4/4/2012, the Respondent, again, wrote Exhibit K as ?My Last Resort?, which did not also attract any reaction from the Appellant; he said that, surprisingly, in July, 2012. Appellant wrote Exhibit L to Respondent, titled REFUND OF VALUATION FEE, and only enclosed a photocopy of the alleged cheque purportedly made in favour of the Respondent, without enclosing the money, showing a calculated attempt to frustrate the Respondent; that in the said Exhibit L, Appellant said nothing about the return of the title documents of the Respondent.
Thus, Counsel said, the trial Court was right in its findings, that the Respondent had proved detinue, as Appellant did not return the documents despite the series of demands in Exhibit H, J and K. He relied on the case of CBN VS NDIC
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(2016) 5 NWLR (Pt.1498).
On proof of loss of earnings, Counsel referred us to Exhibit B ? a letter of introduction from Warm Spring Water Nig. Ltd, pleaded, which showed that he was a mega distributor of the company product and needed increased facility of N6,000.000.00 to enable him maintain his position in Aba and other locations, within Abia State; he said that the failure to release his said documents, created great hardship to him in his business, as it did not only stop him from using the documents, to seek funds from other financial institutions, but also prevented him from personally selling the shops and raising funds for his business. Counsel said that the institutions and people who wanted to buy the shops demanded for the original copies of the documents. He referred us to pages 13,15,16 and 160 of the Records. He said that the DW1 had admitted under cross examination, that Appellant still had the title deeds of the 4 shops of the Respondent in its possession, as at 2017, after the demand, since 2010.
Counsel relied on the case of Agbanelo Vs UBN (2000) 77 LRN 1140; Linton Ind. Trading Co. (Nig.) Ltd. Vs CBN (2015) 4 NWLR (Pt.1448)
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94, on prima facie proof of negligence by a bank ? when it shirks its responsibility and failed in its duty of care, after presenting itself as being professionally competent and skilled to execute certain obligations.
On issue 3, whether the trial Court was right to hold that Respondent was entitled to damages, Counsel answered in the affirmative. He relied on the principles, in the case of Enterprise Bank Ltd Vs Aroso (2014)3 NWLR (Pt.1394) 256, on the ingredients to prove detinue, which Counsel said is on all fours with the case, at hand. Counsel said the five conditions in the Enterprise Bank Ltd. Vs Aroso case (supra) were satisfied in this case, at hand, that the property (the title documents) in issue are those of the Respondent, who had immediate right to their possession, but Appellant was still in actual possession of same, despite the several demands for their return by the Respondent. He referred us to the findings of the trial Court on pages 159 and 160 -161 of the Records to the above effect.
Counsel further relied on FMF Ltd. Vs Ekpo (2004) 2 NWLR (Pt.856)100, on the meaning and nature of general damages; that the law presumes it
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to flow from the wrong complained of; that it needs not be specifically pleaded, and arises from inference, and is awarded at the discretion of the trial Court. See also First Inland Bank Vs Jeks (Nig.) Ltd. 2014 16 NWLR (Pt. 1434).
On issue 4, whether the decision of the trial Court conformed with the principle of law relating proper and correct evaluation of the evidence. Counsel answered in the affirmative. Counsel said the Appellant, while arguing, distorted the facts, while also relying on facts and issues that were not pleaded; he said that it is trite, that address of Counsel cannot take the place or evidence of pleading; that any legal defence of counsel should be raised in the pleading, not in address of Counsel. He relied on Ayorinde Vs Sogunro (2012)11 NWLR (Pt. 1312) 460.
Counsel said the trial Court had done its duty of evaluating the evidence and ascribing probative value to them, before reaching its conclusive. He cited pages 158 to 159 of the Records as proof. He relied on the case of Kolawole Vs C.A.O. (Nig.) Ltd. (2016)13 NWLR (Pt.1529) 274. Counsel also relied on Anekwe Vs Nweke (2014) 234 LRCN 34 to State what evaluation of
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evidence entails:-
?the consideration of each set of evidence given by the parties, the determination of the credibility of the respective witnesses and the ascription of probative value to the evidence evaluated Mogaji Vs Odofin (1978)3-4 SC 65.
Counsel also referred us to page 158 of the Records, on the evaluation by the trial Court of the special damages, which he said Appellant had admitted. He urged us to hold that the lower Court had discharged its duty, creditably, in the appraisal and evaluation of the evidence by the parties to reach its decision. He relied on the case of Faleye Vs Dada (2016) 762 LRCN 38, and urged us to resolve the issues against Appellant and to dismiss the appeal.
In his Reply Brief, Appellant denied admitting the N64,00.00 (Sixty Four Thousand Naira) special damages, nor entering into contract of valuation with the Respondent; he said that it rather offered to refund that money for amicable resolution of the matter to promote harmonious banking relationship with Respondent.
He argued again that the Respondent did not make effective demand for the documents and relied on the case
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of Oladeji Vs Diamond Bank Plc. (2017) LPELR ? 43308 CA on what constitutes effective demand in detinue; that his demand insisted on the condition that refund of the N64,000.00 be made, together with the return at the documents. The Reply brief was mostly a rehash of the Appellant?s brief, which is not what a Reply brief is meant to do.
RESOLUTION OF THE ISSUES
I shall consider this Appeal on the 4 issues donated by the Appellants for the determination of the Appeal which were adopted by the Respondent. In doing so, I shall take the issue 1, separately and issues 2, 3 and 4, together, as they are related, questioning the evaluation of the evidence by the trial Court to reach its conclusion.
?The facts of this case, as summarized by the Respondent, show that the Respondent had requested from Warm Spring Water Nigeria Limited for an extension to him of an increased credit facilities of Six Million Naira (N6,000,000) and the Company demanded that the claimant should procure a bank guaranty from a reputable bank in Nigeria for the purpose. The Respondent therefore applied to the Appellant for the bank guaranty, and the Appellant?s
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Branch Manager at Aba demanded for securities for the said grant. The Bank demand made the Respondent to surrender his title deeds in respect of his 4 shops in Aba to the Appellant. The Respondent was also informed by Appellant that there would be investigation and valuation of the shops and that the Respondent would at the end of the said investigation pay the sum of N64,000.00 (Sixty Four Thousand Naira) to one Mr. Jide Taiwo, Appellant?s accredited Valuer. The said Mr. Jide Taiwo was also invited by the Appellant to the Appellant?s office at Aba and a cheque written in his name (Jide Taiwo) was handed over to the Branch Manager of the Appellant, who in turn handed same over to Jide Taiwo (Page 10 of the Records).
?The Aba Branch Manager of Appellant, in company of others the said Manager introduced as coming from the office of Jide Taiwo, were subsequently led by the Respondent to the two shops of the Respondent for the valuation at the Aba shopping Centre. On the next visit to the Appellant?s Manager, he told the Respondent that Appellant had agreed to grant him the guarantee facility, but on the ground that the Respondent would
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provide additional security. This made the Respondent to submit the title deeds of his two other shops in Ariaria International Market, Aba, to Appellant. After investigation and Valuation of the two other shops, the Appellant failed to honour her earlier undertaking ? but had collected the original title deeds of the Respondent?s property in respect of the 4 shops, and the sum of N64,000.00.
The Respondent needed the facilities to retain his business distributorship status in Aba, and so the failure had a serious negative effect on the Respondent?s business. The Respondent therefore demanded for the return of his title documents and for the refund of his N64,000.00. He wrote letters ? Exhibits H, J, and K and waited for over 2 years for the return of the said title documents, to no avail. Appellant wrote Exhibit L in July, 2012 purporting to refund the N64,000.00, but failed to enclose the money or cheque thereof. It also failed to say anything about return of the Respondent?s title documents.
?Appellant had made a spirited arguments that the N64,000.00 was a non-refundable deposit, paid by the Respondent for the
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valuation of his shops, and was paid to a 3rd party, Mr. Jide Taiwo, who carried out the evaluation, and so the Respondent was not entitled to refunds from Appellant, who was not a party or privy to the contract of the valuation between the Respondent and Jide Taiwo.
I do not think all that arguments by the Appellant hold any substance, in the face of the admission by Appellant and the promise to refund the said amount to Respondent, upon failure of the consideration. See paragraphs 30 and 31of the statement of defence on pages 47 ? 48 of the Records of Appeal.
In paragraphs 29 to 35 of the statement on oath by Eseke Emmanuel (DW1), Appellant?s witness, had said:
29) The situation mentioned in paragraph 20 of the statement of claim persisted owing to the insistence of the claimant and the refusal by the defendant to refund the valuation fee of N64,000.00.
30) That the defendant in order to amicably resolve the matter and promote a harmonious banking relationship with the claimant, offered to refund the contentious sum of N64,000.00 to the claimant.
31) That this is actually gratuitous and not an entitlement of the
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claimant as in normal banking practice the customer applying for a facility bears all the costs incidental to same irrespective of whether the facility was ultimately granted or not?
33) That I had several telephone conversations, with the claimant wherein the claimant was informed that the bank has now issued a cheque in the sum of N64,000.00? (See pages 113, 117 of the Records of Appeal).
The above averments (evidence) were also deposed to by Samuel Atotuomah, and others, who opted to testify for the Appellant (See pages 55 to 56 and 80 to 85 of the Records of Appeal).
I have not seen, anywhere in the Records, where Appellant specified or pleaded and/or produced evidence that the alleged N64,000.00, paid by the Respondent to Appellant?s agent (Mr. Jide Taiwo), was meant to be a non-refundable deposit for valuation of his property for eligibility for the Bank guaranty. Appellant rather argued that the amount was paid for service (valuation) rendered to Respondent by the Valuer – Jide Taiwo.
I do not think Appellant can seriously claim that the payment of the N64,000.00 to Mr. Jide Taiwo was a separate contract
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between the two (Respondent and the said Jide Taiwo) and that Appellant was neither a party nor privy to it. I rather think the N64,000.00 was part of the conditions by Appellant for the respondent to secure the bank guaranty, and that Mr. Taiwo was simply one of the agents of the Appellants, employed by Appellant, to verify and make valuation on the Respondent?s collateral, meant to secure the Bank guaranty. Appellant cannot therefore disown Mr. Taiwo, after fronting him and deriving benefit from the service by the said Jide Taiwo, and declined the bank guaranty to the Respondent. After all, ?a Privy is a person having a legal interest with another in any matter, or property? See Black?s Law Dictionary, 9th Edition, page 1320; Ndulue & Ors Vs Obinaguoha & Ors (2013) LPELR ? 22576 (CA).
See also the case of COTECNA INTERNATIONAL LTD. VS CHURCHGATE NIG. LTD. & ANOR. (2010) LPELR ? 897 SC on the meaning of agent, which is one who acts on behalf of another party (principal) and binds that other party by words or action:
?An agent is one who is authorized to act for or in place of another ? a
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representative. The term agent therefore includes any person who acts for another in the capacity of deputy, steward, rent collector or trustee. Readily coming to mind are instances of mercantile agent, del credere, sole agent, a broker, a commissioned agent, banker, receiver, agent provocateur etc.? Per Adekeye J.S.C.
I think, I can safely add a ?Valuer? to the above list, who acts as a commissioned agent to the bank, to place value on the property the bank seeks to do business with. Appellant, in my view, merely struggled, in vain, to push its agent, Mr. Jide Taiwo, whom it selected as its approved valuer to verify and place value on its customer?s property, to the Respondent! I think Appellant later discovered the futility of that and then owned up responsibility, touching the collection of the N64,000.00 and so admitted to refund the same, both in writing and orally. Surprisingly, it (Appellant) failed to keep its promise, and rather resorted to what looks like some tricks in Exhibit L ? writing a letter which purported to refund the said N64,000.00, but did not, and only enclosed a photocopy of a cheque thereof!
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I resolve the issue one against the Appellant.
I had opted to take the issues 2, 3 and 4, together. Did the Respondent plead and lead evidence to establish detinue and loss of earnings to be entitled to damages as awarded by the trial Court, and did the trial Court properly appraise and evaluate the evidence to reach its conclusion?
The parties are ad idem as to what constitutes a claim in detinue, and have placed reliance on the case of Aminu Ishola Investment Ltd Vs Afri Bank Nig. Plc (2013) NSCQR 717; Amico Const. Co. Vs Actec International Ltd (2015)17 NWLR (Pt.1487), and Enterprise Bank Ltd Vs Deaness Florence Bose Aroso & Ors (2014)3 NWLR (Pt.1394) 256, where the ingredients to establish a claim in detinue were stated, as follows:
1) That the claimant is the personal owner of the property/chattel in question;
2) And has immediate right to possession of the property/chattel;
3) That the defendant is in actual possession of the property/chattel;
4) That the claimant has made proper demand on the defendant to deliver up possession of the property/chattel to him; and
5) The defendant has, without lawful
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excuse, refused or failed to deliver up the property/chattel to him ? Claimant.
Whereas, Appellant had argued that the Respondent failed to fulfill the last two requirements above (4 and 5), the Respondent, on his part, submitted that all the above requirements were satisfied by him at the trial.
In paragraph 5.5 of the Appellant?s Brief, it said:
?The Respondent in this Appeal has failed to fulfill the last two conditions. The crux of the matter here is ?that he has not made a proper demand? In Wema Bank (supra) the Court held that for the claimant in an action for detinue to succeed, ?The Defendant should therefore not have any reasonable justification for keeping or detaining the chattel? See FBN Vs Songonuga (2007)3 NWLR (Pt.1021) P.230.
The Claimant/Respondent made a conditional demand that his collaterals must be returned with the money he paid to Jide Taiwo for valuation. Our submission is the Respondent has not made a proper demand in fulfillment of paragraph (e) above.?
?Of course, I have already held, as per the issue one, that the Respondent was entitled to the refund of
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the N64,000.00, the consideration therefore having failed, especially as the Appellant had accepted to refund the money. Thus, the demand for the refund was legitimate, and should have been treated or taken, separately, from demand for the return of the documents.
But did the Respondent post the refund of the N64,000.00 as a condition for collecting his title documents from the Appellant? Put differently, did the Appellant returned the title documents of Respondent?s shops to him and he refused to collect them, insisting they be returned together with the N64,000.00?
I have not seen any evidence by Appellant to support that submission by Appellant, that Respondent refused to collect the title documents, unless the N64,000.00 was refunded with the documents. Rather, the Respondent had pleaded and produced Exhibits H, J and K, being letters written by the Respondent to Appellant on 15/10/10, 27/7/11 and 4/4/12, respectively, pressing for the return of his title documents, upon refusal of Appellant to grant the Bank guarantee to him. See pages 27, 28 and 29 of the Records of Appeal.
?The Exhibit H was title ?My Ordeal With WEMA BANK PLC,
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ABA?. It states (in part):
The ordeal come as a result of my negotiation with the Bank officials on the issue of securing Bank guarantee for my business. The bank manager being familiar to me introduced me to Mr. Jide Taiwo as the broker. And Mr. Jide Taiwo in turn introduced himself to me as well. We engaged pleasantry?s (sic) and he gave me condition of what to do and bring as collaterals. He maintained that the collaterals should be available before the exercise will commence. After the instructions, I forwarded my shops particulars and Wema Bank Cheque of (N64,000.00) Sixty Four Thousand Naira only to him. Sir, after 4 months of the exercise, and nothing seemed to be happening, they came to me asking that I should start running or operating the account with the Wema Bank before they can effect the guarantee certificate to me.
Sir, my worry is that they are shifting from where we started or from what we agreed upon. They want to do another thing to the contrary; we never discussed running any account in the Bank. I don?t know Mr. Jide Taiwo if not through the manager. Please I am pleading that you should use your
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good office(sic) tell the Aba branch manager to return my money N64,000.00 and my particulars M/S Philip Ajah Stores to me.
He reserves the right to keep his guarantee papers for himself while he returns my money and particulars to me.? Underlining mine).
That letter was written by Respondent and addressed to the Area Manager, Wema Bank Plc, Trans-Amadi ? Port-Harcourt, Rivers State, Nigeria, and copied to the Branch Manager of Wema Bank, Aba.
Exhibit J was written by Respondent?s Solicitor, L.O. Oti Esq, of Kelechi Chambers 24, Milverton Avenue, Aba, Abia State and addressed to the Manager, Wema Bank, Aba. In the letter dated, 27/7/11 the Solicitor, Oti Esq, said (among other things):
?It is in the light of the above that we now demand that you cause the above mentioned title deeds and as well as the cash sum of N64,000.00, inclusive of general damages in the sum of N100.000.000 (One Hundred Million Naira) to be returned and paid to our client on or before the expiration of thirty clear Days from the date of the service of this letter on you.?
?The Exhibit K, dated 4/4/12, was signed by the
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Respondent and addressed to the Managing Director, Wema Bank Plc, No. 54 Marina, Lagos Headquarters. It was titled. ?MY LAST RESORT.? Paragraphs 3 to 5 thereof state:
In fact, Sir, I am constrained to write you this letter with hope that you will help solve the matter.
Please be informed that WEMA Bank Officials Aba Branch are withholding the particulars of my 4 shops and a whopping sum of (N64,000.00) Sixty Four Thousand Naira, cash
Again, I want to remind, you that you are my last resort; where I fail to achieve my objective; my next option will be to go to Court to seek justice.?
Appellant had chosen to treat the three letters with levity and disrespect of silence for about 2 years. But on 5/7/2012, Appellant wrote Exhibit L, addressed to the Respondent, saying:
REFUND OF VALUATION FEE
?We refer to your letter dated April 4, 2012 requesting for the release of your shop particulars and refund of N64,000.00 (Sixty Four Thousand Naira) being payment for the valuation of these shops.
After a thorough investigation with all parties concerned and series of discussions
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held by representatives of the Bank with you, we wish to inform you that the Bank has agreed to refund the sum of N64,000.00 (Sixty Four Thousand Naira), the amount paid for valuation. Attached is our Bank Cheque for the above stated sum.
Kindly indicate your satisfaction with our settlement and your acceptance of this cheque by signing the relevant section on the acknowledgment copy.
We apologize for any inconvenience this might have caused you.? (See page 30 of the Records of Appeal)
The letter was signed by Kehinde Adedeji, Service Quality Management and by Kemi Adeniji, Head, Service Quality Management. The Respondent had led evidence to show that the said N64,000.00 cheque was not attached to the letter (Exhibit F) and that Appellant said nothing about returning the title documents to the Respondent.
?It can be seen in the demand letters that the Respondent never stipulated a condition for collecting/accepting the title documents from Appellant and/or the N64,000.00, which he demanded for using the word ?and? to connect the demand for the documents and the N64.000.00. The Respondent did not state, any condition in
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the letters for accepting the return of the said documents.
I think the trial Court made the proper findings on the demand by the Respondent, when it said, on page 159 of the Records:
?The 1st letter claimant wrote to Defendant demanding his documents and the refund of the money was on 15/10/2010 (Exhibit H). There was no reply by Defendant. Claimant?s solicitor wrote on same issue on 27/7/2011 (Exhibit J). There was also no reply. Claimant wrote again on 4/4/12 direct to the M/D of Defendant which he termed his ?last Resort? (Exhibit K).
On 5/7/2012, after 3 months, Defendant replied only as to the N64,000.00 and the letter made no mention of the documents. Yet the Bank knew the importance of the documents in facilitating claimant?s business, even in the light of Exhibit B written by the Company he was distributing its products. Even with Exhibit L, the cheque was not given to claimant for the refund. This was the only letter from Defendant to claimant in two years of claimant demanding the return of his documents? I hold that the Bank has not discharged the onus on it that it returned or made a serious
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effort at returning the documents and claimant resisted it. By the Counsel?s definition and contention, Claimant has proved detinue
Of course, the above findings have not been challenged or appealed against by Appellant. It is, therefore, surprising that Appellant is again, arguing, on appeal, that the Respondent did not make effective demand for the documents, or that he made conditional demands. Whatever Appellant meant by that, it is obvious that the Respondent had satisfied all the conditions or requirements to establish his claim in detinue, as found by the trial Court. See the case of J.E. Oshevire Ltd Vs Tripoli Motors (1997) LPELR ? 1584 SC; (1997)5 NWLR (Pt.503)1, where the Supreme Court said:
?The gist of liability in detinue is the wrongful detention of the plaintiff?s chattel by the defendant after the plaintiff has made a demand for its return. Without proof of wrongful detention on the part of the defendant, a claim in detinue cannot arise. A detention is not wrongful unless the defendant?s possession is adverse. Accordingly, for an action in detinue to succeed, the defendant must have
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shown a definite intention to keep the chattel in defiance of the plaintiff?s rightful claim thereto and this is usually manifested by proving a demand by the plaintiff, and a refusal by the defendant to return or deliver the chattel to the plaintiff. When, however, the refusal is conditional, a case of withholding the chattel against the will of the plaintiff is not necessarily established, provided the condition is reasonable and not a mere device to put off the plaintiff.? Per Iguh JSC.
See also Chigbu Vs Tonimas Nig. Ltd & Anor. (2006) LPELR ? 846 (SC); Enterprise Bank Ltd. Vs Aroso (2014)3 NWLR (Pt.1394) 256; Enterprise Bank Ltd. Vs Akadiri (2018) LPELR ? 4432 (CA); Mothercat (Nig) Ltd. & Anor. Akpan (2019) LPELR ? 47158 (CA).
In my view, it is obvious the trial Court dutifully and properly appraised and evaluated the evidence before coming to its decision. Appellant was not complaining against the quantum of damages awarded by the trial Court, but was rather saying that the Court was wrong to award the special damage of N64,000.00 and to award for loss of earning, which Appellant said was not proved.
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I think Appellant’s argument seeking to fault the award of Twenty Million Naira (N20,000,000.00) general damages was faulty, predicating it on non-proof of loss of earning. The trial Court had noted that the Respondent had sought the guaranty from Appellant to secure N6,000.000.00 (Six Million Naira) business, which he lost; that the unlawful seizure of Respondents title documents lasted from 2010 to date, of the judgment (and even to date); that if Appellant had meant well it would have mitigated the losses.
In my view, those were valid basis to justify the award of N20,064,000.00 (Twenty Million and Sixty Fourth and Naira) awarded to the Respondent as special and general damages. The Respondent, infact, did not need to prove loss of profit to be entitled to the award of general damages, in the circumstances, as general damages normally flows, automatically, from the wrong(s) done by the Defendant to the plaintiff, and need not be pleaded of proved. See Ogbonna Vs Ogbonna (2014) LPELR ? 22308 CA; Eseigbe Vs Agholor & Anor. (1993) LPELR ? 1164 SC Eneh Vs Ozor & Anor. (2016) LPELR ? 40839 SC.
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I cannot find any merit in this appeal and so resolve all the issues against the Appellant and dismiss the appeal, with cost of the Hundred Thousand Naira (N100,000.00) against Appellant, payable to the Respondent.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
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Appearances:
GEORGE ASOGWA, ESQ.For Appellant(s)
L.O. OTI, ESQ.
For Respondent(s)
Appearances
GEORGE ASOGWA, ESQ.For Appellant
AND
L.O. OTI, ESQ.For Respondent