Chief Paul Ordia V. Piedmont (Nigeria) Ltd. (1995)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, J.S.C. 

The appellant bought two galvanised steel barges from the liquidator of a company that constructed the bridge on Ethiope River. That was in 1978, and the two barges were moored near the new bridge. By the time the plaintiff sought to take delivery of the barges he discovered they had been taken away by the defendant to Ologbo where the defendant put them to use. The plaintiff then instituted an action to recover the barges at Sapele in the High Court of the former Mid-Western State but his action was dismissed. He then appealed to the Supreme Court where by consent judgment it was ordered as follows:

“(a) The plaintiff/appellant shall pay to the defendant/respondent the sum of N900.00 being the present price agreed to by the parties in respect of both barges constituting the subject matter of appeal.

(b) After payment of the said amount of N900.00 by the plaintiff/ appellant to the 2nd defendant/respondent, the 2nd defendant/respondent shall permit the plaintiff/appellant to take possession of the said barges and remove same for his own use and benefit.

(c) The plaintiff/appellant shall pay to the 2nd defendant/respondent the cost of this appeal assessed at N500.00.”

The plaintiff/appellant promptly complied with the above judgment by paying the sum of N1,040.00 into the defendant/respondent’s account (i.e. N900.00 and cost of N500.00) which the respondent refused to accept by sending a cheque for the same sum back to him on 9th April, 1976. The appellant then paid this same sum into the Registry of the High Court in respondent’s favour but despite notice to this payment, the respondent still refused to collect the sum. The appellant then demanded the return of the barges as ordered by the Supreme Court but this demand was not heeded. This led to the suit that found its way from the High Court through the Court of Appeal to this court.

The High Court entered judgment in favour of the plaintiff on the issue of liability for not handing over the barges to the appellant, finding in conversion rather than in detinue. He awarded N2,000.00 as damages for loss of use for four days detention. Against the award of damages the plaintiff/appellant appealed to the Court of Appeal which dismissed the appeal; he has thus with leave appealed to this court. One of the reasons why the Court of Appeal dismissed the appeal was that the evidence of the cost of each barge or its replacement was not before the court and that Exhibit P1, a quotation for a new barge from the boat builders was not properly before the court. The appellant therefore in support of his grounds of appeal formulated the following issues for determination:

“1. Were the learned Justices of the Court of Appeal right to affirm the judgment of the learned trial Judge assessing and awarding damages on the basis of plaintiff’s case being founded on conversion which their Lordships held to be wrong

2. Were the learned Justices of the Court of Appeal right in their view that the plaintiff did not prove strictly the value of the barges to which the plaintiff is entitled
3. Having found that plaintiff’s Claim is based on detinue, were the learned Justices of the Court of Appeal right to say that the plaintiff did not appeal against the failure to order return of the barges when there was no such failure”

Court of Appeal adverted to the issues between the parties when it held:

“Where, however, the learned Judge appear to have gone wrong, in my respectful view, was when he decided that appellant’s action was more in the nature of conversion rather than detinue. It is crystal clear from appellant’s claim that he based his action on detinue and not on conversion.” By Supreme Court judgment in suit SC/384/74 “Exhibit B2″ the appellant was entitled to the ownership and possession in respect of the two barges and pay N900 to the respondent. Notwithstanding the plaintiff paying this amount to the defendant, the latter impudently refused handing over ownership …” See Page 156 Line 39 to Pages 147 Lines 1-10.”

There was a marked distinction between the first action which went to Supreme Court from High Court when there was no intermediate appellate court and the present action now in issue. The previous action was based on conversion but once the Supreme Court entered the consent judgment alluded to earlier the present action has taken a new turn. Detinue is based on history of development of Common Law. It is based on the defendant’s wrongful detention of plaintiff’s chattel, with the evidence of defendant’s refusal to deliver up the chattel on demand by the plaintiff. The redress is not strictly for the wrong but for the return of the chattel or its value; and since the second half of last century the loss of use of the chattel [See common Law Procedure Act 1852 for the transformation that took place in the issue of detinue]. Detinue is now an action only in tort for failure to deliver up the plaintiff’s chattel and it entails claim for the return of the chattel or its value and damages for its detention.

Since the Supreme Court entered the consent judgment the plaintiff has been entitled to the return of the barges. He made the demand for their return which was ignored by the defendant. His action, rightly, is in detinue. Nowadays it is even possible to ask for specific return of the chattel if it is still in possession of the defendant rather than its value, and damages for its detention [See for example the analysis in General and Finance Facilities Ltd VS. Cooks Cars (Romford) Ltd. (1963) 1 WLR 644, 650.] But more appropriately it is up to the plaintiff to decide which course to follow among the following:

1. value of chattel and damages for its detention. The value of the chattel is as proved at the time of judgment in trial court and the onus is on the plaintiff to prove the value. He is also to show by evidence the damage suffered by the detention.
2. the return of the chattel and damages. In this case the judgment on proof of the detention is for the return of the chattel and damages for its retention.
3. for the return of the chattel or its value as assessed, and damages for its detention. This seems to be the best form of action for if the chattel has otherwise been removed from jurisdiction or hidden away and out of sight of the sheriff there is no alternative other than a distraint for the value of the chattel as assessed plus of course damages for its detention.

The Court of Appeal having resolved the issue as that based on detinue curiously erred by dismissing the appeal of the plaintiff. Conversion as distinct from detinue attracts damages in the form of value of chattel up to the time of conversion; in detinue it is as at the date of judgment. Trial court refused to award damages for detention of the chattels for more than four days believing and so holding that the action was based on conversion. Court of Appeal rightly in my view held the action was in detinue but it failed to proceed on the appropriate assessment of damages. The Court of Appeal erred in this regard.

The next question is whether the Court of Appeal was right in holding that the plaintiff did not prove strictly the value of the barges. Court of Appeal relied on the English case of Hali v. Barclay (1937) 3 All ER 620, 623 that when goods in issue are not readily available in the market the claimant is entitled to the cost of replacement of the good. The only evidence of the plaintiff on the value of the barges (which certainly are not readily available in the market) is that of Julius

Olofinsao who tendered Exhibit P1. quotation for the building of similar barges if ordered through Thermosteel Nigeria Limited. It is pertinent to reproduce part of this witness’ testimony, to wit.

“Our line is a specialised one. I see Exhibit P1. It was signed by the Managing Director Mr. Guido Zamblere. I did not sign Exhibit P1. I know him very well. He is my Chief Executive. The said Managing Director is trained in this special field. He is still in the service of the Company in this country.”

Earlier this witness testified that he actually prepared Exhibit P1. There was objection to the tendering of Exhibit P1 the defendant relying on S. 90(3) Evidence Law of then Bendel State. The objection was overruled. The main purport of the objection is that Exhibit P1 was signed by Mr. Zamblere and thus he was the maker and not Mr. Olofinsao; that extrinsic evidence cannot be used to contradict what is glaring on the document. Section 90 provides for admissibility of certain facts e.g. a statement in document, if the maker is called as a witness. The contention here is that Exhibit P1 was not signed by Mr. Olofinsao (P. W.1) and thus he was not the maker and as Mr. Zamblere was not called as a witness Exhibit P1 was inadmissible. It is clear that the respondent made too much over the Exhibit P1 in relation to P.W.1. P.W.1(Olofinsao) said he made the document for Mr. Zamblere, his Managing Director to sign. Evidence Act in Section 90 (4) provides:

“(4) For the purposes of this section a statement in a document shall not be deemed to have been made by a person unless the document or material part thereof was written made or produced by him with his own hand or was signed or initialled by him or otherwise recognized by him in writing as one for the accuracy of which he is responsible”.

Mr. Olofinsao (P.W.1) stated clearly in cross-examination and in his evidence in chief that he was responsible for the accuracy of Exhibit P1 as he prepared it for his Managing Director to sign. Exhibit P1 was in response to an inquiry and request, for quotation for two barges identical to the ones in issue. It did not seem P.W.1 prepared it for purpose of litigation; the suggestion was even never made to him in cross-examination. In the realm of company’s administrative practice it is not unusual for the Managing Director to sign documents on behalf of the company when such documents are produced by his subordinates. That is the purport of Section 90 (4) Evidence Act. Exhibit P1 was properly admitted in evidence. The Exhibit put the value of a similar barge at N315,530.00 that evidence remains uncontradicted. That was the value at the time of the action and at the time of the judgment. See Odulaja V. Haddad (1973) 11 S.C. 357, 362; Okeke V. Obidife (1965) NMLR 113, 115; Yesufu Na Maduga v. Hamza Mohammed Kofar Bai (1987) 3 NWLR (Pt.62) 635, 642. Since the trial court admitted Exhibit PI the defendant never made any attempt to contradict its contents and the value placed by plaintiff on each barge has remained unchallenged. Obi Obembe v. Wemabod Estates Ltd. (1977) 5 S.C. 115, 140.

As for the third issue for the appellant the Court of Appeal was of the view that there ought to be an appeal against failure of trial court to make an order for return of the barges. It is clear trial court ordered only the payment for value of the barges plus four days damages for their detention. It is to be observed that the appeal to Court of Appeal, and to this court, is on inadequacy of damages. Once Court of Appeal found the matter to be an issue not in conversion but in detinue, it ought to have proceeded by virtue of section 16 Court of Appeal Act to make the order the trial court ought to have made had it found in detinue, i.e. the value of the chattels and damages for their detention.

With greatest respect to counsel for the respondent, I cannot find anything in the grounds of appeal and issues for determination in the appellant’s brief of argument that are inconsistent with each other. A lot was attempted to be made out of this proposition but certainly not justified by the facts of this case. As for concurrent findings of the two lower courts, they are based on law not on facts as the issue was whether this matter was in conversion or in detinue. Elf vs. sillo ( 1994) 1 NWLR (Pt.350) 258, 263 refers to concurrent findings of facts only and it is not relevant to this case. So are several similar cases cited but not having any bearing on the present case. Issue of law can be raised at any stage.

In an action like this, where chattel is withheld by defendant from the plaintiff, the action in detinue is for either the return of the chattel plus damages for its retention; or the value of the chattel plus damages for its retention. Thus the defendant even cannot deprive the plaintiff of his right to damages for detention of the chattel simply because he was not earning anything from its use. [See NO.7 Steam Sand Pump Dredger (Owners) vs Greta Holme (Owners). The Greta Holme (1897) A.C. 596 for Lord Halsbury’s speech]. In the present case the plaintiff merely showed by pleadings what was likely to be his earning per day on each barge and without more; this was speculative evidence. By normal principle of pleadings the plaintiff without more would have been entitled to his claim once his averment is untraversed or unrebutted by evidence. In a case in detinue, however, the court will award what is reasonable as damages for retention of the chattels by the defendant. The measure of damages in detinue therefore has always been the value the chattel (if unreturned or lost) and the damages for its detention. Each case is determined by its facts and special circumstance as it is still an uncharted field Strand Electric etc CO. v. Brisford Ltd (1952) 1 All ER 796,799. But all along, the principle is that in a claim for damages, whether in tort or in contract the plaintiff recovers only what he has lost; this is subject to the rule of remoteness. Thus where the defendant has deliberately refused to deliver up the chattels and in the process has continued to make profit by its retention, he will pay the plaintiff damages which will be substantial; this is not the case here. But where the plaintiff has chance to mitigate his damages, the court will give what is reasonable in the circumstance. See Liesbosch, Dredger v. Edison 5.5. (1933) A.C. 449; Slater v. Hoyle & Smith (1920) 2 K.B. 11. There is no question here of the defendant being presumed to hire the barges from the plaintiff because the defendant seemed to have disposed of the barges earlier ..

In all civil matters where damages have been suffered the complainant must try in earnest to mitigate his loss. Once the plaintiff discovered he could not recover the barges despite the consent judgment at the Supreme Court, having sent the N900.00 and N500.00 ordered in that judgment to the defendant and the defendant refusing to accept the money and at the same time refusing to release the barges to the plaintiff, he ought to have taken steps to mitigate his loss. It is in the light of this that I find one hundred and eighty days (six months) as reasonable period for the plaintiff to have adjusted himself to the fact that the barges could not be returned to him and for him to mitigate his loss.

I therefore find merit in this appeal. I set aside the decision of Court of Appeal which dismissed the appeal before it. I allow this appeal and make the following orders in consequence:

1. The defendant/respondent to pay N315,530.00 for each barge, making a total of N631,060.00 for the two barges as at the date of judgment at the trial court.
2. The defendant/respondent to pay N500.00 per day for one hundred and eighty days being damages for retention of the barges that being a reasonable period within which the appellant ought to have concluded mitigating his loss as a result of the detention of the barges. This amounts to N90,000.00.
3. I award N 1,000.00 as costs in this court N300.00 as costs in the Court of Appeal and the costs awarded by the trial High Court is reinstated.

BELLO, C.J.N.: I have had the advantage of reading in advance the lead judgment of my learned brother, Belgore, J.S.C. I agree. I also allow the appeal and set aside the judgment of the Court of Appeal affirming the award of damages by the High Court. Judgment shall be entered for the plaintiff/appellant in the sum of N631,060 being the cost for the replacement of the barges and in addition in the sum of N90,000 for the loss of their use for six months.

I shall only add a few words on the measure of damages in actions in conversion and detinue. In a judgment by consent delivered on 17th December, 1975 the Supreme Court ordered the defendant/respondent to return the two barges to the plaintiff/appellant and since then the former failed to return either. In consequent thereof, the plaintiff/appellant instituted this suit on 23rd March, 1985 claiming in his Amended Statement of Claim:

(a) An order enjoining the defendant to deliver to the plaintiff the two galvanised steel barges or two identical galvanised steel barges, failing which their value N2,000.000

(b) Loss of use of the said barges since 10/4/76 N525,000.00

In his judgment, the trial Judge correctly stated the principles for the assessment of damages in actions in conversion and detinue as follows:

“It is my view, that the right thus created judgment (Exhibit P2), can be enchored on Detinue, conversion or trespass. These three actions have one common factor that is there must be wrongful interference with the plaintiffs’ goods possession or right to possession. The other incedents are different and the measure of damages are not the same. It is settled, for example, that where the action is founded on detinue, the court may award the loss of use up till the date of judgment since the plaintiff claims for the return of the said goods or the value of the said goods. In such a case, the measure of damage if the goods are of commercial nature, will be based on the market value of the goods so detained up to the time of judgment. But if the action is founded on Conversion, the loss of use if the Goods are of commercial nature or of hiring, the measure of damage will be based on the market price of the goods up to the time of conversion.”

After reviewing the evidence, he concluded that the plaintiff/appellant’s claim was founded on the right created by the consent judgment hinged on conversion and accordingly he awarded to the plaintiff/appellant N8,000.00 as damages for conversion.

“1. The sum of N4,000.00 being the value of the two galvanised barges at N2,000.00 each.

2. The sum of N4,000.00 for loss of use from 5/4/76 to 9/4/76 at N500.00 per day per barge. N4,000.00”

On appeal against the judgment of the trial court, the Court of Appeal held, quite rightly in my view, that the Judge had erred in law in holding the plaintiff/appellant’s claim to have been founded on conversion. Delivering the lead judgment to which Salami and Musdapher, J.C.A., agreed, Ogundare J.C.A., as he was then observed as follows:

“Where, however, the learned Judge appears to have gone wrong, in my respectful view, was when he decided that appellant’s action was more in the nature of conversion rather than detinue. It is crystal clear from appellant’s claim that he based his action on detinue and not on conversion.

By Supreme Court judgment in Suit SC./384/74 “Exhibit B2″ the appellant was entitled to the ownership and possession in respect of the two barges and pay N900.00to the respondent. Notwithstanding the plaintiff paying this amount to the defendant, the latter rather impudently frustrated that judgment by claiming in Exhibit P4 that it had sold the Barges.”

However, the Court of Appeal erred in law in holding that the plaintiff/appellant did not discharge the burden of proof in respect of the value of the barges and in affirming the award of N8,000.00 made by the trial Judge for the following reasons stated by the Court of Appeal thus:

“In the absence of any other evidence as to the value of the goods, the trial court was left with the value to the appellant of N900.00 for the two barges as contained in the judgment of the Supreme Court (Exhibit P1) and the value of N2,000.00 per barge given by the defence as the price for which the respondent alleged it sold the barges. The learned trial Judge chose the figure more favourable to the appellant. It is my view that the learned Judge has been most fair to the appellant notwithstanding his failure to discharge the duty on him to prove the value of the barges at the time of the detinue complained of. Damages for loss of use.

The learned trial Judge awarded the sum of N4,000.00 for loss of use for 4 days at the rate of N500.00 per barge per day. The appellant complained about the award as being too small. While a plaintiff in an action of detinue is entitled to damages for the detention of his goods, damages for loss of use are not, however, recoverable unless the loss of use is consequential on some wrongful damage to the goods. There was no claim for damages for wrongful detention in this case but as the claim for damages for loss of use was not based on any wrongful damage to the barges the award under this head of claim was wrongly made. However, as the respondent did not appeal against the award, it will not be interfered with.”

In his lead judgment, Belgore J.S.C., has fully considered the evidence relating to the cost of replacement of the two barges established by P.W.1 and Exhibit P1. I am satisfied the plaintiff/appellant proved the cost to be N631,060. I also endorse the reasons stated by him that the plaintiff/appellant is entitled to N90.000 for the loss of use of the two barges for a period of six months which under the circumstances of the case is a reasonable period within which the plaintiff/appellant could have replaced them from the time the defendant/respondent failed to comply with the consent judgment.

It is pertinent to emphasize that in an action in detinue, the court may order the return of the chattel and damages for its detention. In the alternative, the court may order as damages payment of the value of the chattel and also damages for the loss of its use. The measure of damages for the chattel is its value or the cost of its replacement at the time of its recovery while the measure of damages for the loss of use is the actual loss suffered by the plaintiff for its detention which depends on the circumstances of each case: see Odumosu v. A.CB. (1976) S.C. 55 and Stitch v. A-G. Federation and Ors. (1986) 5 NWLR (Pt.46) 1007.

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SC.265/1991