Boniface Anyika & Co, Lagos Nigeria Ltd. V Katsina U. D. Uzor (2006)

LAWGLOBAL HUB Lead Judgment Report

NIKI TOBI, JSC

The plaintiff is the appellant in this appeal. The defendant is the respondent. They had a business relationship. It was the clearing of goods. The respondent is a Clearing Agent. The appellant is the owner of the goods. The case of the appellant is that it imported 400 surgical orthopaedic chairs into the country and employed the respondent to clear the goods. It paid the sum of N12,500.00 inclusive of N300.00 transportation fee to the respondent. The respondent did not deliver the goods as agreed. Upon demand for the goods, the respondent concocted a story that the goods were seized by customs officials. The case of the respondent is different. As a Clearing Agent, he was contracted by the appellant to clear its container purportedly containing 400 surgical chairs. Upon examination by the Board of Customs and Excise, the goods were found to be ordinary chairs, which are prohibited. Customs Officials seized the goods and auctioned them to Messrs Nnawo Enterprises in 1988. The appellant, though aware of the sale of the goods by customs officials, filed an action. That is the case of the respondent. The appellant sued the respondent and other. It sued for “damages and conversion in the sum of N5,641,600.00 being exchange rate for US $68,000.00 paid for, or a return of 400 units of orthopaedic surgical chairs converted by the Defendants as well as the sum of N12,500.00 paid for clearing goods.” At the trial, some of the respondents originally sued by the appellant had their names struck out of suit. The learned trial Judge gave judgment to the appellant. He found the defendant liable in conversion. The appeal of the respondent to the Court of Appeal was upheld. Judgment against the respondent was set aside and the claim dismissed. It is against that decision that the appeal has come to this court. Briefs were filed and exchanged. The appellant formulated the following single issue for determination: “Whether a case of conversion was made against Defendants by the Plaintiff”.” The respondent formulated the following four issues for determination: PAGE| 2 “(1) Whether the appeal is competent in view of the fact that the grounds of appeal are grounds of mixed law and fact and no leave was sought by the Plaintiff/Appellant. (2) Whether the Appellant pleaded and established facts upon which the Defendant/Respondent can be found liable for the tort of conversion. (3) Whether Exhibit P4 the document tendered by Plaintiff/Appellant’s witness showing that the goods were contraband and was (sic) sold to Nnawo Enterprises supports the contention of the Appellant that the goods were not contraband. In view of the fact that the document emanated from the Department of Customs and Excise, the body charged with the duty of inspecting goods imported into Nigeria. (4) Whether there was any evidence or inference of collusion between the Defendant/Respondent and Board of Customs and Excise in relation to the Plaintiff/Appellant’s forfeited cargo with regard to Exhibit P4 – P4J.” Learned counsel for the appellant, F.R.A. Williams (Jnr.) submitted that a case of conversion was made against the respondent. He cited Ihenacho V. Uzochukwu (1997) 2 NWLR (Pt. 487) 257 at 268. Relying on paragraphs 9, 10 and 11 of the Further Amended Statement of Claim, learned counsel submitted that when the paragraphs are viewed together with the document copied at pages 98 and 99 of the Record, it will be clearly seen that all the material facts necessary to establish the conversion have been established. He argued that the document can only come into existence if the imported goods are released to the Clearing Agent and that if the goods were contraband, a seizure Note would have been issued instead. Relying on the evidence of PW2, and other evidence before the court, learned counsel submitted that the evidence before the court confirms that on 7th January, 1988, the imported goods were released to the respondent. He contended that the Court of Appeal arrived at a wrong decision, particularly when that court took Exhibit P4 at face value. He urged the court to allow the appeal. Learned counsel for the respondent, Mr. A.M. Makinde, submitted on Issue No. 1 that as the three grounds of appeal are grounds of mixed law and fact, the appellant ought to have sought the requisite leave. Failure on the part of the appellant to seek leave, counsel contended, renders the appeal incompetent. He cited section 233 (3) of the 1999 Constitution and the following cases: A.C.B. V. Obmiaimi Brick and Stone and Sons Ltd (1993) 5 NWLR (Pt. 294) 399 and Adeyemi V. Y.R.S. Ike Oluwa and Sons Ltd (1993) 3 NWLR (Pt. 309) 27 Learned counsel contended on Issue No. 2 that the object of pleadings is to state accurately the issue for trial. He cited Oduka V. Kasumu (1968) NMLR 28 While still on the pleadings of the appellant, counsel submitted that the pleaded facts in the Further Amended Statement of Claim did not make the respondent liable for the tort of conversion as he never at any point have either custody or control of the appellant’s imported goods nor committed any act that is inconsistent with appellant’s title to the goods. He cited Fouldes V. Willioughby (1841) M and W540; Ojini V. Oluwa (1998) 1 SCNJ 20. He also submitted that the Bill of Entry, Traffic Managers Special Cargo Pass, Tally Way Bill No. 55617 obliterates respondent’s liability for conversion. On Issue No. 3, learned counsel submitted that Exhibit P4 which emanated from the Office of Deputy Director of the Department of Customs and Excise in charge of enforcement is a confirmation of the fact that the goods imported by the appellant were contraband. He said that Exhibit P4 speaks for itself. Taking Issue No. 4, counsel still made reference to Exhibit P4 and submitted that the respondent is neither an agent of the 3rd defendant nor Nnawo Enterprises and that there is no evidence on record nor can any inference of collusion by the respondent be made from available evidence. He urged the court to dismiss the appeal. I have examined the grounds of appeal and I do not agree with the submission of learned counsel for the respondent. Accordingly, Issue No. 1 fails. Pleadings are averments by the party which he claims to be the facts of the case. As far as the party is concerned, the facts pleaded have the content and the strength to give him judgment in case. In the case of the plaintiff, the pleadings without more, can only give him judgment where the defendant admits the claim or relief. In a case where the defendant joins issues with the plaintiff in his Statement of Defence, the content and strength of the pleadings by way of Statement of Claim must be tested by the court in the light of oral evidence. This is because the Statement of Claim being court process, does not have the mouth to talk in court. This is where parol or oral evidence of the witness becomes important and plays a vital role in the truth searching process of the court. It is the duty of the witness to goad the docile Statement of Claim by ventilating in open court, the averments contained therein. In the absence of such evidence, the Statement of Claim is moribund and remains useless in the court’s file in a contested case. There is yet another aspect and it is this. The oral evidence must be accurate in the sense that it brings out the facts as averred in the Statement of Claim. In other words, the oral evidence must dance to the same music as in the Statement of Claim. Where the oral evidence does not bring out the facts. In the statement of Claim or where there is material contradiction, the court is entitled to hold and will hold that the plaintiff did not prove his case. Here the court uses the Statement of Claim as the reference point because that is where the facts of the case originally germinate. So much of the law on pleadings. Let me go to the pleadings relied upon by learned counsel for the appellant. They are paragraphs 9, 10, and 11 of the Further Amended Statement of Claim. Let me quickly read them. “9. The Plaintiff was never notified that the said goods were seized by the Customs Department for being contraband goods, as is their usual practice. 10. The Plaintiff avers that a Traffic Manager’s Special Cargo Pass No.6180 dated 7.1.88 was issued in respect of the said consignment of goods. From the Traffic Manager’s Special Cargo Pass, it can be PAGE| 4 seen that the Customs Department issued a receipt No. 483476 of 4.1.88. Attached herewith and marked Exhibit BF1 is a copy of the Special Cargo Pass. 11. Further to paragraph 10 above, Plaintiff is aware that the Customs & Excise Department allowed the said goods into Nigeria without seizing them from the Tally WayBill No. 55617 dated 7.1.88′ Learned counsel relied on the evidence of PW2 who said at page 86 of the Record: “After these documents are submitted to the Import Control Officer, they are then taken to the Lugate Officer to the A/C Section of Customs to Studying Seat, to the Bill Examiner to Outgate to Warehouse or where the container is. After this, there if the NPA examination of the goods by Security Agents and Customs officers. The goods are then released to the Agent. When the container is found to contain contraband goods, the Agent will be arrested and Customs will issue a Seizure Note.” I am in some difficulty to appreciate why learned counsel relied on the evidence of PW2. While I agree that PW2 gave evidence of customs practice and the clearance of goods at the port, I do not see where the evidence he gave is pleaded, particularly the last sentence that counsel seems to rely upon. And that sentence reads: “When the container is found to contain contraband goods, the Agent will be arrested and customs will issue a Seizure Note” The law is elementary that parties are bound by their pleadings and facts not pleaded go to no issue. See Adejumo V. Ayantegbe (1989) 3 NWLR (Pt. 110) 417. Awoyegbe v.Ogbeide (1988) 1 NWLR (Pt. 73) 695; Aguocha V. Aguocha (1986) 4 NWLR (Pt. 37) 566; Akeredolu V. Akinremi (1989) 3 NWLR (Pt. 108) 164; Anyanwu V. Iwuchukwu (2000) 15 NWLR (Pt. 692) 721. The question is this: Was the above evidence pleaded? Where did the appellant plead the arrest of the respondent? Where did the appellant plead the issuance of a Seizure Note? Both counsel dealt with Exhibit P4. It is the Traffic Manager’s Special Cargo Pass. Learned counsel for the appellant submitted that Exhibit P4 can only be in existence if the imported goods are released to the Clearing Agent. Learned counsel for the respondent submitted that the exhibit attests to the sale of the goods to Nnawo Enterprises by the 3rd defendant. I have carefully examined the Further Amended Statement of Claim and I cannot place my hands on the submission of counsel in respect of the Traffic Manager’s Special Cargo Pass, Exhibit P4 A-J. The role of counsel in the litigation process is clear; so too the role of the parties. Counsel, being the expert of the law, supplies his expertise to edify the facts of the case with a view to procuring judgment for his client. He cannot supply the facts, which exclusively belong to his client. All he can supply is the law and the law only. Counsel can only submit on the law to vindicate the facts already before the court. He cannot introduce facts on his own. In view of the fact that none of the two witnesses for the appellant gave evidence “that Exhibit P4 can only be in existence if the imported goods are released to the Clearing Agent”, this court rejects the evidence emanating from counsel. This is because counsel is not competent to give evidence in a case he appears for a party as counsel qua advocate. PAGE| 5 And that takes me to the submission of learned counsel for the respondent on the exhibit. In my view, it is a submission of law, being a submission on the legal position or strength of the exhibit and it is that the exhibit attests to the sale of the goods to Nnawo Enterprises. Is counsel correct? Does Exhibit P4 A-J vindicate his position? I think so. Exhibit P4 A-J is a form. It is printed and like most forms, there are spaces to be completed in handwriting. It is addressed to N. P. A Gate Police. In front of the words “N. P. A Gate Police” and between “Nigerian Ports Authority and Traffic Managers Special Cargo Pass” (all printed) is written in handwriting the following “Owner- Nnawo Nig. Ltd.” In the Description Marks column is written in handwriting the “Containers No. Customs Receipt No., Chairman’s Letter No, and R. T. C. Receipt No.” whatever that means. From the above particulars in Exhibit P4, I am in agreement with learned counsel for the respondent that the goods were sold to Nnawo Nigeria Enterprises The above apart, the Custom’s Receipt at page 94 of the Record issued to Nnawo Nigeria enterprises and Exhibit P4 at page 100 of the Record clearly show that the goods were sold to Nnawo Nigeria Enterprises. The above apart, paragraphs 8 and 12 of the Further Amended Statement of Claim seem to admit that the goods were sold. The paragraphs read: “8. The Third Defendant through its Department, the Anti-Smuggling Task Force, was responsible for selling the said consignment of goods at an auction for N5, 500.00. 12. The Plaintiff avers that the purported auction referred to in paragraph 8 took place on 31:12:87 as seen from Exhibit BF2 attached herewith.” The 3rd defendant was the Board of Customs and Excise. By the above admission, it is clear that the respondent had not the custody of the goods. This was known to the appellant at the time the respondent was jointly sued with others for conversion. I regard the admission as admission against interest and the interest is the contention that “the respondent concocted a story that the goods were seized by customs officials.” And that takes me to the tort of conver-sion. Conversion is an act of willful interference, without lawful justification with any chattel in a manner inconsistent with the right of another, whereby that other is deprived of the use and possession of that chattel. The tort of conversion is committed where one, without lawful justification, takes a chattel out of the possession of another, with intention of exercising a permanent or temporary dominion over it, because the owner is entitled to the use of his property at all times. The usual method of proving that a detention is adverse is to show that the plaintiff demanded the delivery of the chattel, and that the defendant refused or neglected to comply with the demand. See Ihenacho V. Uzochukwu cited by learned counsel for the appellant. A cause of action in conversion is based on an unequivocal act of ownership by a defendant of goods of the plaintiff without any authority or right in that behalf. See Ojini V. Ogo Oluwa Motors Nigeria Ltd. (1998) 1 NWLR (Pt. 534) 353. In that case, Belgore, JSC., said at page 363: PAGE| 6 “When a person by deliberate act, deals with the chattel of another in a manner inconsistent with that other’s right whereby he is deprived of the use and possession thereof the tort of conversion is committed. To be liable for conversion, the defendant need not intend to question or deny the plaintiff’s right but it is enough that his conduct on the chattel is inconsistent with the plaintiff’s right.” See also Owena Bank (Nig) Ltd, V. Nigerian Sweets and Confectionery Co. Ltd. (1993) 4 NWLR (Pt. 290) 698. National Bank of Nigeria Limited V. Mobil Oil Nigeria Limited (1994) 2 NWLR (Pt. 328) 534; Danjuma V. Union Bank (Nig) Ltd. (1995) 5 NWLR (Pt. 395) 318; Omidiora V. Ademiluyi (1997) 6 NWLR (Pt. 508) 294; Yusuf V. Mobolaji (1999) 12 NWLR (Pt. 631) 374; Trade Bank Plc, V. Barilux (Nig) Ltd (2000) 13 NWLR (Pt. 685) 483. For the tort of conversion to be committed, the following ingredients must be present and proved: (1) The goods belong to the plaintiff. (2) The goods do not belong to the defendant. (3) The goods are taken out of the possession of the owner, the plaintiff, without lawful justification. (4) The defendant must have the intention of exercising permanent or temporary dominion over the goods. (5) There must be specific demand for the goods by the plaintiff, the owner. (6) That denial must be followed by an unequivocal act of refusal to surrender the goods by the defendant to the plaintiff. The crux of the tort is that the defendant must deal with the goods of the plaintiff in a manner inconsistent with the plaintiff’s right of ownership. In view of the fact that ownership is central to the tort, a plaintiff who cannot prove ownership cannot succeed in an action on the tort of conversion. Demand is also a vital ingredient. There cannot be conversion until the plaintiff formally makes a demand of the goods, followed by a refusal by the defendant to surrender them. That is when the intention of the defendant to deny the plaintiff’s right to ownership of the goods comes to the open. Did the appellant prove the tort of con-version? No. The evidence before the learned trial Judge was that the goods, being contraband, were seized by the Department of Customs and Excise and thereafter auctioned. The moment the goods got to the possession of the Department of Customs and Excise, they were completely out of the possession of the respondent, who was the Clearing Agent. And so, any demand for the goods by the appellant was an exercise in futility. A person can surrender possession of what he has in possession. He cannot surrender possession of what is not in his possession. That is both a factual and legal impossibility. In this case, the raw hands of the law grabbed the goods and there was nothing the respondent could do. He was placed in a most helpless situation as the matter was clearly beyond him. Why should surgical ortho-paedic chairs suddenly metamorphose to ordinary chairs? Who did the magic? Is it the respondent? No. But why should the respondent suffer for no fault of his? And the appellant is not talking about the metamorphosis. Things happen in Nigeria! And what is more, the appellant had knowledge of the intervention of the law through the Department of Customs and Excise. Paragraphs 8 and 12 tell the story about the knowledge of the appellant. In sum, the appeal has no merit and I accordingly dismiss it. It is ordered that the appellant pays costs of N10, 000.00 to the respondent.

SC. 384/2001