Bala Ahmed V. Umaru Mohammed (2009)
LawGlobal-Hub Lead Judgment Report
AYOBODE O. LOKULO-SODIPE, J.C.A.
This is an appeal against the judgment delivered on 30th May, 2006 by the High Court of Justice, Niger State (Appellate Division) (coram: Hon. Justice Jibrin N. Ndajiwo – C.J and Hon. Justice Christopher I. Auta) in APPEAL NO. NSHC/MN/3A/2005 – BALA AHMED V. UMARU MOHAMMED. The said High Court will hereinafter be simply referred to as “lower court”. The lower court in its judgment dismissed the appeal of the Appellant.
The facts of this case as can be gathered from the record of appeal are that the Appellant before the lower court (and who is equally the Appellant before this Court) as plaintiff commenced the instant case on appeal before the Upper Sharia Court of Niger State holden at Minna. The Upper Sharia Court will hereinafter be simply referred to as “the trial court”). The Appellant’s particulars of claim before the trial court as set out at pages 1 – 2 of the Record read thus: –
“The Plaintiff claim (sic) against the Defendant is for the Sum of N450,000.00 being special and general damages for the act of the Defendant to detain (sic) the Plaintiffs (sic) vehicle a Baby Starlet Reg. No. AA 633 KUT on the 26th July, 2003. The Plaintiff claims the return of the vehicle to the Defendant forthwith. The plaintiff on or about the 25th of July, 2003 received a letter Signed (sic) by the Defendant asking the plaintiff, who is his subordinate to bring his car to his house. He lured the plaintiff who duly drove his car and all the documents of the car to the Defendant’s house. On getting there on the 26th July 2003 the Defendant impounded the car and the particulars. The car is still in the Defendant (sic) house to date. The Plaintiff uses the car for commercial purposes where he earns N3,000.00 per diem. Since the car was Seized (sic) and detained by the Defendant unilaterally, it has been in his custody between 26/7/2003 to 4/10/2003 a period of 100 days. At the rate of N300,00k (sic) the plaintiff has lost the use of the car at a cost of N3000,000.00 (sic). The plaintiff spent the sum of N50,000.00 for suits, the sum of N50,000.00 as legal fees and N50,000.00 for travelling and other expenses totaling N50,000.00 and claims same from the Defendant. Where of (sic) the plaintiff claims N450,000 special damages, N100,000.00 general damages plus substantial costs.
Dated the 24th October 2003.”
Learned counsel for the Respondent before the trial court having disclosed that the case was for trial de novo, further informed the trial court that the Respondent denied the Appellant’s claim and that the Respondent has counter-claimed because of this.
In the proof of his case before the trial court the Plaintiff (now Appellant), called four witnesses and also testified in his own behalf.
The Defendant (now Respondent) did not testify in his own behalf but called one witness in the proof of his case before the trial court.
Having stated in its judgment to the effect that not all persons are competent and compellable witnesses under Shariah, the trial court decided to attach no weight to the evidence of the Plaintiff (i.e. Appellant) and PW 2. In this regard, the trial court specifically said that a plaintiff cannot be a witness for himself under Shariah and also that in Shariah a non-Muslim cannot give evidence in a case involving Muslims. Dwelling on the evidence of other witnesses in the case and Exhibits, particularly Exhibit C – which is a letter of Undertaking signed by the Plaintiff and witnessed by DW1 – Suleman Abduliah, the trial court said thus at pages 34 – 35 of the Record: –
” Exhibit C which is the letter of undertaking which was signed by the plaintiff and witness (sic) by Suleman Abduliah D.W. 1. might be of great help to this court, if counsel to the plaintiff ascertain (sic) the handwriting of the plaintiff before this court as the defendant allege that the plaintiff wrote it voluntary (sic) while plaintiff refuses (sic) this but only sign (sic) it under duress, crying. This court is in doubt as to who write (sic) Exhibit C And (sic) there is no evidence besides, that of the plaintiff that he sign (sic) the Exhibit under duress. This court therefore find (sic) it difficult to reach a conclusion as to whether the plaintiff voluntarily submitted his vehicle to the defendant or not. But there is no doubt that by the evidence before this court, the plaintiff used his vehicle for commercial purpose. As in this country, the private vehicle (sic) are used as commercial and makes (sic) as kabu-kabu in some part (sic) of this country. The plaintiffs case count (sic) on this Exhibit c. Having consider (sic) the earlier evidence before me, I have ordered for the immediate release of the vehicle of the plaintiff to him. Also considering the relationship of the parties, this court has given the plaintiff, looking at his condition to offset the balance of the Defendant, the sum of N189,185.00 within five months. He should be paying installmental (sic) at the end of every month staring (sic) from the end of this month March 2005.”
The Plaintiff (now Appellant) being aggrieved with the judgment of the trial court appealed to the lower court by a Notice of Appeal dated 2nd March, 2005 and filed on 4/3/2005. Three further grounds of appeal were filed pursuant to leave in that regard granted by the lower court on 24th April, 2006. (See pages 36; 42 – 43 and 40 – 41 respectively of the Record).
At the hearing of the appeal before the lower court on 24/4/2006, Femi Fajemirokun, Appellant’s counsel re-numbered the original grounds of appeal as grounds 4 and 5; while the three further grounds of appeal were renumbered as grounds 1, 2 and 3 respectively. He thereafter argued only grounds 1 and 2 of the appeal as renumbered and at the conclusion of his submissions before the lower court; he expressly stated that he was abandoning grounds 3, 4 and 5 of the grounds of appeal.
Before the lower court, one Benjamin Attah appeared for the Respondent. He replied to the submissions of learned counsel for the Appellant on 25/4/2006.
For this purpose, learned counsel formulated and argued two Issues. The issues are: –
- Whether the trial court was right under Islamic Law to reject evidence of certain witnesses.
- Whether the appellant did prove the case at the lower court to warrant the award of damages to him in the light of exhibit C and his indebtedness to the respondent.
The lower court delivered its judgment on 30th May, 2006. As earlier stated, the lower court dismissed the appeal.
The Appellant being dissatisfied with the judgment of the lower court appealed to this Court pursuant to leave granted by the lower court on 23/6/2006. The Appellant’s undated Notice of Appeal was filed on 6/7/2006.
(See pages 68 – 69 of the Record). The said Notice of Appeal contains 5 grounds of appeal. They read thus: –
“1. The lower court erred in law for failure (sic) to properly and adequately evaluate the evidence on the record before it.
PARTICULARS OF ERROR
The lower court failed to consider the testimonies of the witnesses that testified before it.
- The lower court erred in law when it held that the appellant did not make out a case of detinue.
PARTICULARS OF ERROR
The claim before the lower court was one of detinue but the court in its wisdom held that “the question of detinue could not therefore arise in this case”.
- The learned lower court erred in law by making a case not canvassed before it for the parties.
PARTICULARS OF ERROR
The lower court was wrong to hold that the submission of the vehicle to the respondent was a pledge and once a pledge always a pledge and he could not get the vehicle back.
- The lower court erred in law for failure (sic) to decide whether the trial court was right under Islamic law to reject the evidence of certain witnesses.
PARTICULARS OF ERROR
The lower court was urged but did not oblige, to pronounce on the propriety of the trial judge to reject (sic) the testimonies of some witnesses.
- The lower court erred in law to hold (sic) that the appellant is not entitled to damages.
PARICULARS OF ERROR
The lower court held that the appellant did not prove or establish
this case to warrant the grant of any damages.”
In compliance with the Rules and practice of this Court, parties filed and duly exchanged briefs of argument. The appeal was entertained on 24/9/2009.
Femi Fajemirokun of counsel for the Appellant and Benjamin A. Adokwu of counsel for the Respondent respectively, relied on and adopted Appellant’s brief of argument filed on 12/3/2007 and Respondent’s brief of argument dated 21/9/2007 and deemed as properly filed on 3/12/2007.
Four Issues are formulated for the determination of the appeal in the Appellant’s brief of argument. The Respondent likewise formulated four Issues for the determination of the appeal in his brief of argument. The Issues formulated for the determination of the appeal in the Appellant’s brief of argument read thus: –
“1. Whether the lower court properly reevaluated the evidence of the Parties – Ground 1
- Whether the learned justices of the lower court were correct to hold that the appellant has not prove (sic) a case of detinue and therefore not entitled to any damages (ground (sic) 2,5)
- Whether the lower court was right to have decided the case on an issue that was not before it and on Exh. C which is not a ground of appeal by either party – Ground 3
- Whether religious sectional difference could be a ground for rejection of evidence Ground 4”
The four Issues formulated for the determination of the appeal in the Respondent’s brief equally read thus: –
“1. Whether or not the lower court properly re-evaluated the evidence of the parties.
- Whether there is unlawful seizure of the appellant (sic) Baby Starlet Car with Registration No. AA 633 KUTA by the Respondent or same was pledged by the Appellant.
- Whether or not Exhibit C was not properly before the Lower Court that will warrant the judgment of the court based on it.
- Whether ground 4 of the Notice of Appeal or issue No. 4 is competent before this honourable Court since same is complaining against the decision of the trial court.”
The appeal will be decided upon the Issues formulated in the Appellant’s brief of argument but not necessarily in the order in which the Issues were treated by the parties in their respective briefs of argument. Issues 3 and 4 respectively, will be treated first as they relate to evidence which the lower court should have evaluated in coming to its decision; while Issues 1 and 2 which in effect question the correctness of the decision of the lower court based on the evidence on Record will thereafter be treated together.
ISSUE 3
The complaint of the Appellant under Issue 3 is to the effect that the lower court was wrong to have decided the case before it upon an issue that was not before it; and on Exhibit C which was not a ground of appeal by either of the parties.
Dwelling on this Issue, learned counsel for the Appellant in the main submitted that the lower court should not have considered Exhibit C which relates to the issue of pledge. In this regard Appellant’s counsel said that the issue of pledge was not raised in any of the grounds of appeal before the lower court. He submitted to the effect that the Respondent’s counsel who did not have a cross-appeal could not have raised the issue as he did. To buttress his submissions, learned counsel for the Appellant referred to the grounds of appeal contained in the Notice of Appeal before the lower court.
Learned counsel submitted that grounds of appeal must relate to the decision of a court and should be a challenge to the validity of the ratio decidendi in the judgment. That a ground or grounds of appeal represent an appellant’s complaint or complaints in respect of a decision of the court given against him and which decision he conceives as being wrong. The cases of Musa v. Faruk (2004) 23 WRN 30 at 34; and Ajayi v. Ashipa (2004) 46 WRN 35 at 40 were cited in aid. Appellant’s counsel submitted to the effect that the role of a respondent who does not cross-appeal is limited to supporting the decision appealed against. That such a respondent does not have unrestrained or unbridled freedom of raising issues for determination which have no relevance to the grounds of appeal filed. Learned counsel further submitted that when an appellate court in the course of hearing an appeal forms the opinion/impression that the court below made some errors which ought to have been appealed against, but which were not, then the appellate court in question must show aloofness and refuse to be drawn into correcting such errors not appealed against. The cases of Ezukwu v. Ukachukwu (2004) 46 WRN 1; and Bhojsons Plc v. Daniel-Kalio (2006) All FWLR (312) 2038 at 2041 were cited in aid.
The Respondent dealt with the substance of Appellant’s Issue 3 under his own Issue 3 which raised the question as to whether or not Exhibit C was properly before the lower court and constituted evidence upon which the said court could base its judgment. Learned counsel for the Respondent made the point that Exhibit C was tendered by the Respondent through DW1 and that the said Exhibit which is an Undertaking signed by the Appellant was made an issue before the lower court. That Exhibit C was a deciding factor the lower court relied upon in arriving at a just decision as to whether or not a case of detinue had been properly made out by the Appellant. Learned counsel further submitted that reliance on the said Exhibit C by the lower court has not occasioned any miscarriage of justice.
The Appellant as plaintiff decided to institute his claim/case for detinue before the trial court which as earlier stated is an Upper Sharia Court. It is clear from the Record that the trial court applied evidence as applicable under Sharia to the case brought by the Appellant despite the nature of the claim.
The Appellant never appealed against this to the lower court. What he appealed against having regard to ground 1 of the two grounds of appeal argued before the lower court was the declaration of PW 2 as an incompetent witness (whose testimony carried no weight) by the trial court on the ground that a non-Muslim cannot give evidence in a case involving Muslims under Sharia.
The claim of the Appellant before the trial court has already been re-produced in this judgment. The Respondent not only denied the claim of the Appellant before the trial court but the record also show that he counter-claimed against the Appellant for the balance of money owed him in respect of Agro-Chemical products he supplied to the Appellant.
The Respondent adduced evidence through a lone witness – DW 1; in the proof of his case denying the claim of the Appellant as well as his counterclaim.
It was this witness that tendered Exhibit C. The witness testified as to how Exhibit C, came to be made by the Appellant. Indeed it was the evidence of DW 1 that he signed and dated the said Exhibit as a witness. Exhibit C was admitted without objection from the Appellant’s counsel. Appellant’s counsel also never challenged the Exhibit in any manner whatsoever under cross-examination. The content of the said Exhibit is re-produced in the judgment of the lower court. In this regard see pages 57 – 58 of the Record where the lower stated thus: –
“Now, on the colossal consideration and perusal of the main case and the accompany (sic) evidence thereto, the question that comes to our mind is whether there was a case of dentinue before the lower court as per the Writ of Summons. (sic) Before it. To appreciate the situation it is necessary to state the brief facts of the case. The plaintiff/appellant was indebted to the defendant/respondent in the sum of N189,185.000 being the cost of supply of chemical. In this letter of undertaking addressed to the defendant/respondent dated 26/7/2003 he stated in the letter:
‘I am hereby writing (sic) letter of undertaking to day (sic) been (sic) 26/7/2003. I have submit (sic) my motor car registration No. AA 633 KUT, Engine NO. 01581891E, Chassis No. 7000150265 to Mr. Umar M.I owe him N189,185.00 for the chemicals supply (sic) to me for sale. I am to balance him, I wish to pay him within three weeks from today or forfeit the vehicle.
(signed)’.
The exhibit C arose from exhibit 1 whereby the defendant/respondent had intimated the plaintiff/appellant about the impending audit on his account. That this request for the production of the vehicle to our mind was to serve as a shield for the audit reports.”
It has been stated before now, that the Appellant abandoned grounds 3 – 5 of his grounds of appeal before the lower court at the hearing of the appeal before the said court.
The second ground of appeal Appellant’s counsel argued before the lower court, accused the learned trial Judge of failing to consider the Plaintiff/Appellant’s main claim and of not deciding the case in his favour having regard to the overwhelming evidence before him. (Underlining supplied by me for emphasis).
It was in responding to the grounds of appeal argued before the lower court, particularly ground 2 of the said grounds that Respondent’s counsel formulated Issue 2 before the said court and which reads: “whether the appellant did prove the case at the lower court to warrant the award of damages to him in the light of exhibit C and his indebtedness to the respondent.”
I am of the considered view that it is gross misconception on the part of Appellant’s counsel to argue that the issue of Exhibit C could not be raised by Respondent’s counsel save he cross-appealed, in the light of ground 2 of the grounds of appeal argued before the lower court, as well as the totality of evidence before the trial court (and which evidence the Appellant’s counsel conceived as entitling the Appellant to judgment). All that Issue 2 raised by Respondent’s counsel before the lower court, brought to the fore, is whether the Appellant was entitled to judgment as claimed, in the light of Exhibit C which was properly before the trial court. I have stated that Exhibit C was properly before the trial because its admissibility was not challenged in any of the grounds of appeal before the lower court. Issue 2 raised by the Respondent’s counsel was tailored to the real and crucial issue raised and argued in ground 2 of the Appellant’s grounds of appeal before the lower court. See FADLALLAH & ORS V. NIGERIA AMERICAN MERCHANT BANK LTD (2007) All FWLR (Pt. 385) 530. The submission of Respondent’s counsel that Exhibit C had always been in issue in this case right from the trial court cannot be faulted. The issue of Exhibit C, remained an issue before the lower court at the time it entertained the appeal of the parties.
The filing of pleadings is not applicable in the trial court. Technicalities therefore have no place in the adjudication of cases before the said court.
Indeed the attitude of appellate courts when confronted with the decision of courts such as that of the trial court is to carefully scrutinize the entire record of proceedings to ascertain the subject matter of the case and the issues raised therein. Appellate courts are enjoined not to rely on the form of action but the substance of the claim as the dominant factor. See UMORU V. AKINYEDE (2007) All FWLR (Pt. 355) 468.
The lower court did not manufacture Exhibit C. The lower court having taken cognizance of the Exhibit simply ascribed a name to the transaction which the said Exhibit created i.e. “pledge”. It is preposterous for the Appellant to say that the lower court raised the issue of pledge suo motu simply because the court gave the appropriate nomenclature to the transaction Exhibit C created.
It is equally preposterous for the Appellant to want to restrict the lower court to the consideration of evidence adduced by him alone in coming to a decision as to whether or not he has proved the case he brought to court.
The lower court is duty bound to consider the totality of the evidence (including documentary evidence such as Exhibit C) before it.
From all that has been said before now, I therefore neither find the lower court to have decided the case before it on an issue that was never raised before it, nor to have wrongly acted on or countenanced Exhibit C. Issue 3 is accordingly resolved against the Appellant.
ISSUE 4
Issue 4 questions the rejection of evidence by the trial court on the basis of religion.
Dwelling on this Issue, Appellant’s counsel submitted in the main that the rejection of the evidence of PW 2 – Andrew Doma (a Christian) by the trial court on the ground that in Shariah a non-Muslim cannot testify in a case involving Muslims was a denial of fair hearing to the Appellant. This is particularly so as it was glaring from the testimony of the said PW 2 that he was the only person that told the trial court how the Respondent detained the Appellant’s vehicle as well as the efforts the Appellant made to secure the release of the vehicle in question. Learned counsel cited the cases of Haruna Mai Aiki v. Dankadi Maidaji (2004) FWLR (Pt. 188) 1026 at 1027 as deciding that the evidence of a non-Muslim is acceptable against a Muslim and reliable except where there is proven enmity of worldly affairs. Appellant’s counsel further submitted that the failure of the two courts below to consider the testimony of PW 2 has occasioned a miscarriage of justice. This Court was urged to invoke its powers under Section 16 of the Court of Appeal Act, 1976 and Order 2 (1) of the Court of Appeal Rules 2002 for the purpose of doing justice in the case.
The Respondent reacted to Appellant’s Issue 4 under his own Issue 4 which questioned the competence of this Court to hear and determine ground 4 of the Appellant’s grounds of appeal which learned counsel to the Respondent submitted is complaining against the decision of the trial court and not that of the lower court.
Relying on the provision of Order 43 of the Niger State High Court (Civil Procedure) Rules 1987, Respondent’s counsel submitted to the effect that only the High Court of Niger State has the exclusive jurisdiction to hear and determine appeals from the decisions of District Courts, or Upper Sharia Courts. Learned counsel further submitted to the effect that ground 4 of the grounds of appeal is a direct complaint against the decision of the trial court, before this Court, and that it is not proper and that this Court in the premises is not competent to hear an appeal straight from the Upper Sharia Court.
Section 240 of the 1999 Constitution was cited as conferring jurisdiction on this Court to hear and determine appeals from High Court of a State. This Court was urged to strike out the Issue 4 formulated by the Appellant and the cases of Adio v. State (1986) NWLR (Pt. 24) 581 and Harriman v. Harriman (1987) 3 NWLR (Pt. 60) 244 were cited in aid.
In the Appellant’s brief of argument, Issue 4 formulated therein is shown to have been derived from ground 4 in the Notice of Appeal by which the appeal was lodged in this Court. The said ground of appeal and the Issue derived therefrom are again set out for ease of reference. They read thus: –
“GROUND 4
The lower court erred in law for failure (sic) to decide whether the trial court was right under Islamic law to reject the evidence of certain witnesses,
PARTICULARS OF ERROR
The lower court was urged but did not oblige to pronounce on the propriety of the trial court to reject the testimonies of some witnesses,”
The two grounds of appeal which Appellant’s counsel argued at the hearing of the appeal before the lower court and the particulars of the said grounds of appeal read thus: –
“I. The learned trial Court erred in law for disregarding the testimony of one Andrew Doma and thereby came to a wrong decision resulting in a gross miscarriage of justice.
PARTICULARS OF ERROR
Andrew Doma testified as the star witness of the appellant (pg.17 line (sic) of record) but the learned judge in his wisdom held thus:
“The Plaintiff present (sic) five witnesses(s) to establish his case against the defendant. Among these five witnesses two are not competent witness (sic) in Sharia, A plaintiff could not be a witness for himself under Sharia while a non Muslim can not give evidence in Sharia for a case involving Muslims …………………. Therefore no weight shall be attached to the testimonies of PW 2 Andrew Doma and PW 4 Bala Ahmed”.
II. The learned trial judge erred in law for failure (sic) to consider the main claim of the plaintiff/appellant and decide the case in his favour having regard to the over whelming evidence before him.
PARTICULARS OF ERROR
The Plaintiffs (sic) Claim against the defendant is for the sum of 450,000.00k being special and general damages for the act of the defendant to detain (sic) (detinue) the plaintiff’s vehicle a Baby starlet Reg. No. AA 633 KUT on 26th July, 2003.
The learned trial judge made no findings as regards the claim.”
It is my considered view that the complaint of the Appellant as actuated in ground 4 of the grounds of appeal before this Court was clearly raised in ground 1 of the grounds of appeal before the lower court. Indeed it is beyond controversy that learned counsel for the Appellant at the lower court (and who is equally the Appellant’s counsel in this Court) argued ground 1 of the grounds of appeal which complained of the trial court’s disregarding the testimony. of Andrew Doma – PW2, at the hearing of the appeal before the lower court. (See pages 44 – 45 of the Record). In the same vein, learned counsel for the Respondent argued the issue raised by the Appellant’s ground 1 under the first of the two Issues he formulated before the lower court. (See pages 47 – 49 of the Record). It is equally indisputable that the lower court in its judgment never resolved the issue raised by ground 1 of the grounds of appeal before it despite the fact that both learned counsel for the parties duly argued the same.
It is no doubt settled law that an appellate court that is not the final appellate court in respect of the subject matter of an appeal before it, is duty bound to make a pronouncement on all the issues properly submitted to it for adjudication by the parties. See YUSUF v. ADEGOKE (2007) All FWLR (pt. 385) 384; and ETAJATA V. OLOGBO (2007) All FWLR (Pt. 386).
The lower court glaringly failed to discharge this duty. The failure of the lower court in this regard is definitely an omission which the Appellant who is aggrieved by the same can appeal against and has indeed appealed against by ground 4 of the grounds of appeal before this Court. Accordingly, I find the Respondent’s counsel to be laboring under a serious misconception of law in arguing that ground 4 of the Appellant’s grounds of appeal before this Court, is a direct complaint against the decision of the trial court. It is not. It is a complaint against an omission made by the lower court in coming to a decision in the appeal before it; and the Issue distilled therefrom is very competent.
The complaint raised by Appellant’s Issue 4 attracted no response on the merit in the Respondent’s brief of argument. This no doubt might be because Respondent’s counsel has himself read the case of Mai-Aiki v. Mai-Daji (2004) FWLR (Pt. 188) 1026 at 1027 wherein this Court amongst others held that “evidence of a non-Muslim is acceptable and reliable against a Muslim except where there is a proven enmity of worldly affairs”.
It is my considered view that the decision of this Court in the Mai-Aiki case clearly shows that the trial court was in grave error in disregarding the evidence of Andrew Doma – PW 2 because he is a Christian and on the ground that a non-Muslim cannot give evidence in Shariah in a case involving Muslims. If the lower court (which is glaringly not the final appellate court in respect of the dispute between the parties) had not defaulted in the discharge of its duty to make a pronouncement on all the issues raised by the parties in the appeal before it, the said court under the doctrine of stare decisis was bound to have applied the decision of this Court in the Mai-Aiki case cited before it. The lower court in that event could not have arrived at any other conclusion but to have held that the trial court clearly erred in law in disregarding the evidence of Andrew Doma – PW2 on the ground that he is a Christian and in the absence of anything or evidence establishing or remotely suggesting that there is enmity of worldly affairs between the said PW 2 and the Respondent.
In the light of all that has been said before now, Issue 4 distilled from ground 4 of the grounds of appeal before this Court (and which raises the self same Issue as the first of the Issues argued before the lower court) is accordingly resolved in favour of the Appellant. Whether the omission of the lower court to have resolved this Issue in favour of the Appellant occasioned a miscarriage of justice will be considered later in the judgment.
ISSUES 1 AND 2
Issue 1 formulated by the Appellant complains about the re-evaluation of the evidence adduced by the parties before the trial court, by the lower court. Issue 2 on the other hand complains against the correctness of the conclusion of the lower court that the Appellant did not prove a case of detinue and therefore was not entitled to damages.
Dwelling on Issue 1, learned counsel for the Appellant submitted to the effect that the quantum of evidence before the lower court which consisted of the testimonies of witnesses before the trial court and documentary evidence sufficiently established a case of detinue against the Respondent and entitled the Appellant to the damages which he claimed. The evidence adduced by the Appellant through each of PWs 1, 2, 3, and 5 was highlighted in this regard. Learned counsel for the Appellant accused the lower court of ignoring the relevant, pungent and straightforward issues raised by the evidence adduced by the Appellant through his witnesses and instead raised suo motu the new issue of pledge which was not raised or circumscribed by the grounds of appeal before it. Learned counsel submitted to the effect that this was a proper case in which this Court is duty bound to embark upon a reevaluation of evidence for the purpose of correcting the error committed by the lower court as the said court clearly failed to re-evaluate or correctly apply the evidence before it on the printed record. The case of Oluwole v. Bakare (2004) 18 WRN 120 at 123 was cited in aid. Also the case of Jolayemi v. Alaoye (2004) 33 WRN 1 at 7 was cited in aid of the submission that the concurrent findings of fact of both the trial and lower courts can properly be interfered with by this Court as special circumstances for doing so, to wit: the perverseness of the findings, in that they are not supported by evidence, has been shown.
ISSUE 2
Dwelling on this Issue, Appellant’s counsel in the main stated that detinue is based upon a defendant’s wrongful detention of the plaintiff’s chattel coupled with the defendant’s refusal to deliver up and restore possession of the chattel following the plaintiff’s demand. That it does not matter whether the wrongdoer obtained initial possession of the goods lawfully, illegally or by seizure provided the claim is not founded on illegal contract. The cases of Zenon Petroleum & Gas Ltd v. Idrisiyya Nig. Ltd (2006) All FWLR (Pt. 312) 2121 at 2122; Seven Up Bottling Co. Ltd v. Adewale (2004) 7 WRN 143 at 151; and Kosile v. Falarin (1989) 3 NWLR (Pt. 107) 1 at 8-9 were cited in aid.
Appellant’s counsel said to the effect that the evidence of PW2 – Andrew Doma established the wrongful detention of the Appellant’s car and refusal of the Respondent to return the same despite repeated demands for the same. The evidence of PWs 3 and 5 learned counsel further said established the entitlement of the Appellant to damages to the tune of N1,290,000.00.
Learned counsel specifically referred to the testimony of the Appellant as recorded on page 24 lines 13 -15 of the Record in support of his entitlement to damages being claimed. This Court was urged to invoke its power under Section 16 of the Court of Appeal Act and Order 3 Rule 2(1) of the Court of Appeal Rules 2002, in considering and determining the damages the Appellant ought to have been awarded.
In responding to Appellant’s Issue 1, learned counsel for the Respondent stated that from the onset the Respondent at the request of the Appellant supplied the Appellant with Agro-Chemical products worth N235, 185.00 and that the Appellant paid the sum of N46,000.00 leaving a balance of N189,185.00 outstanding. That Exhibit 1 which emanated from the Respondent was tendered by the Appellant. That it was by this Exhibit that the Respondent called on the Appellant to bring the pledged Baby Starlet to his house. Learned counsel said further that Exhibit C on the other hand is the Undertaking made by the Appellant pledging the said car to the Respondent for the debt of N189, 185.00. According to learned counsel for the Respondent, the Appellant himself testified to the effect that he collected Agro-Chemicals worth N235, 185.00 from the Respondent and that he paid N46, 000.00 leaving a balance of N189, 185.00. That this was the situation till the time the Appellant requested the Appellant to bring the car which he had pledged and its particulars to enable the Respondent’s company audit his account. That the Appellant complied with the request by parking the vehicle in the Respondent’s premises pending the time he would bring the balance of N89, 185.00 he owed the Respondent and thereafter collect his vehicle. Respondent’s counsel further said that the evidence of DW 1 showed that the Appellant who never denied owing the Respondent requested for the piece of paper on which he wrote his Undertaking – i.e. Exhibit C. Learned counsel for the Respondent said it is settled law that in ascribing probative value to the testimony of a witness, the court considers whether such testimony is cogent, consistent and in accord with reason in relation to other evidence before it. Learned counsel further stated the other factors which a court takes into consideration in the determination of credibility of a witness to be demeanour, personality and reaction to questions and that the determination of the credibility of witnesses is solely within the province of the trial Judge. That the evidence of a witness cannot have any weight where his credibility is in doubt.
Learned counsel for the Respondent submitted that the trial and lower courts respectively, painstakingly apprised and re-evaluated the evidence adduced by the parties in the instant case and arrived at just decisions. Learned counsel further submitted that this Court as an appellate court should not disturb the concurrent findings of the two courts below as there were no special circumstances for doing this. The cases of Engineer Goodness Agbi v. Chief Audu Ogbe (2006) 5 SCNJ 314 at 339 and Ekwunife v. Wayne Ltd (1989) 5 NWLR (Pt. 122) 422 were cited in aid.
Issue 2 formulated in the Respondent’s brief of argument relates to the unlawfulness or otherwise of the seizure of the Appellant’s Baby Starlet vehicle. Respondent’s counsel said to the effect that the settled position of the law is that for an action for detinue to succeed, the plaintiff must prove that the defendant wrongfully detained the plaintiff’s chattel evidenced by refusal of such defendant or his agent to deliver it up upon demand. That detention of a chattel by the defendant can only be wrongful when his possession of the said chattel is adverse. The cases of General and Finance Facilities Ltd v. Cooks Car Rumford Ltd (1963) 2 All ER 314; Anura v. Ebenator Community Bank Ltd (2005) 10 NWLR (Pt. 933) 321 at 342; and Osayemon v. Ojo (1997) 7 SCNJ 367 amongst others were cited in aid.
Learned counsel for the Respondent submitted that the Appellant’s vehicle was impounded by the Respondent pursuant to Exhibit C thereby making the title to the said vehicle to reside in the Respondent until such time when the Appellant paid the money he owed the Respondent. It was further submitted by Respondent’s counsel that the Appellant having signed Exhibit C which he duly understood as well as its legal implication; was bound by the contents of the said Exhibit just as the Respondent. Learned counsel submitted that the Appellant failed to prove a case of detinue.
Detinue is the wrongful detention of the plaintiffs chattel by the defendant after the plaintiff has made a demand for its return. A claim in detinue cannot be sustained without proving wrongful detention on the part of the defendant. Accordingly for an action in detinue to succeed adverse possession of the chattel by the defendant must be established and in this regard the defendant must be shown to have a definite intention of keeping the chattel in defiance of the plaintiffs rightful claim thereto. This is usually manifested by proving a demand by the plaintiff and refusal by the defendant to return or deliver the chattel to the plaintiff. It is however pertinent to note that where a refusal is conditional, a case of withholding the chattel against the will of the plaintiff is not necessarily established provided that the condition is reasonable and not a mere device to put off the plaintiff. See CIVIL DESIGN CONSTRUCTION NIGERIA LTD V. SCOA NIGERIA LTD (2007) All FWLR (Pt. 363) 1 (SC); NIGERIA PLC V. BOSE STORES LTD (2007) All FWLR (pt. 393) 163 (CA); and SHELL PETROLEUM DEVELOPMENT CO. OF NIGERIA V. OKONEDO (2007) All FWLR (Pt. 368) 1104 (CA).
Appellant’s counsel has submitted that the lower court did not re-evaluate the evidence of the parties on printed record properly.
Even though the lower court did not make a specific pronouncement in relation to ground 1 of the grounds of appeal before it, and which ground questioned the discountenancing of the evidence of PW2 by the trial court, it is in my view still glaring that the said lower court in its judgment clearly evaluated the Appellant’s case vis-a-vis the evidence on record. The lower court having taken due cognizance of the Appellant’s claim and having correctly set out what the Appellant must prove to succeed in respect of the claim for detinue, found to the effect that the Appellant’s claim has no basis in the light of Exhibit C. (see pages 58 – 59 of the Record).
I have earlier said in this judgment, that Exhibit C was properly before the trial court and a fortiori, the lower court. In any event it is to be noted that the Appellant never challenged or questioned the admissibility of the said Exhibit in any manner whatsoever before the lower court. Appellant’s counsel in his submissions relied solely on the evidence adduced by the witnesses called by the Appellant (the testimony of PW 2 inclusive) in claiming that the Appellant established his case of detinue. Appellant’s counsel would appear to have conveniently ignored Exhibit C – documentary evidence which the Appellant never impugned. It is now settled law that documentary evidence being permanent in form is more reliable than oral evidence and it is used as a hanger to test the credibility of oral evidence. See C.D.C. NIGERIA LTD V. SCOA NIGERIA LTD (supra) and EZEMBA V. IBENEME (2004) All FWLR (Pt. 223) 1786.
Suffice it to say that despite the evidence of PW 2 whom Appellant counsel has dubbed as the Appellant’s star witness, I simply do not see how the lower court could reasonably have arrived at any conclusion save that the Appellant’s claim in detinue has no basis in the light of Exhibit C. The evidence of PW2 is at pages 17 – 19 of the Record. The witness did not accompany the Appellant to the Respondent’s house when he (i.e. Appellant) took the vehicle there. PW 2 therefore cannot give evidence as to what happened between the Appellant and the Respondent at the Respondent’s house. True it is that PW 2 testified that he accompanied the Appellant to demand for the vehicle on a number of occasions but that the Respondent refused to return the same. However it is not demand by the Appellant for his vehicle and refusal of the Respondent to return the same alone that would establish the claim of detinue given the facts of this case as presented by the Respondent and which find credibility in Exhibit C. Before the refusal of the Respondent to return the vehicle could sustain a claim in detinue, the Appellant ought to establish that he paid the debt he owed the Respondent and in respect of which he pledged his vehicle and that despite this the said Respondent has refused to return the vehicle in question. That is all I understand the lower court to be saying when it stated in its judgment at page 59 thus: –
“In the case at hand the appellant had no immediate possession of the vehicle because he had by exhibit C surrendered the vehicle to the respondent. The submission of the vehicle to the respondent was a pledge and once a pledge always a pledge and he could not get the vehicle back until after redemption. The question of detinue could not therefore arise in this case.”
I find the conclusion that the question of detinue could not arise in this case given Exhibit C reached by the lower court to be eminently correct. Also the conclusion reached by the lower court that the Appellant who did not prove or establish his case in detinue was not entitled to damages is unassailable. The failure of the lower court to specifically make a pronouncement on ground 1 of the grounds of appeal argued before it, glaring has not occasioned any miscarriage of justice. There is no special circumstance therefore for this Court to interfere with the concurrent findings of the two courts below dismissing the claim of the Appellant.
From all that has been said, Issues 1 and 2 are accordingly resolved against the Appellant.
In conclusion and despite the success of Issue 4, this appeal fails as the non-pronouncement by the lower court on ground 1 of the grounds of appeal argued before it has not occasioned any miscarriage of justice.
Appeal is accordingly dismissed and the judgment of the lower court delivered on 30/5/2006 is upheld.
Costs of N50,000.00 is awarded against the Appellant and in favour of the Respondent.
Other Citations: (2009)LCN/3454(CA)
