Elijah Oladeji Kosile V Amuba Olaniyi Folarin (1989)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C.

On the 23rd of January, 1989, this Court heard this appeal and dismissed it, but reserved reasons for the judgment till to-day. I now give my reasons.

By a writ of summons dated the 25th day of February, 1974, the plaintiff claimed against the defendant as follows:

“1. The plaintiff’s claim is for the return of the plaintiff’s Commercial vehicle registration No. WC4102. or its value of N2,400.00, which was wrongfully seized and detained by the defendant from the plaintiff’s driver on or about the 21st day of May, 1972, at Ile-Ife. The defendant has refused to return the said vehicle to the plaintiff inspite of plaintiff’s repeated demands.

The plaintiff also claims from the defendant the sum of N20.00 per day for loss of income as a result of the wrongful seizure from the aforesaid date of seizure until possession is delivered.

The plaintiff further claims the sum of N1,000.00 as general damages for wrongful seizure and detention of the said vehicle.”

Pleadings were filed and exchanged, after which the matter was set down for hearing.

The facts are brief. Between March and August, 1971 the plaintiff, a transporter, hire-purchased from the defendant three motor vehicles under the agreements, Exhs. E, F and G. When the plaintiff ran into difficulties without honouring his hire purchase obligations, the parties entered into an agreement, Exh. B dated January 4, 1972, in place of the original hire purchase agreement. Under Exh. B the price of the vehicles was to be paid by agreed monthly instalments of N400.00 per month, but upon default, the whole amount would become due and recoverable by legal action. One of the vehicles was involved in an accident and the engine of another vehicle knocked, leaving the plaintiff with only motor vehicle No.WC4102, the subject of this suit. As the plaintiff could not pay as agreed under Exh. B, the defendant, on the 21st of May, 1972, seized the vehicle No.WC4102. At the trial, the main issue as to the liability of the defendant was whether Exh. B was an agreement for sale under the Sale of Goods Law. The learned trial Judge, Agbaje Williams, J. (as he then was) held:

“I hold that Exh. B was not a sale under the Sale of Goods Law, Cap. 113. It was a mere relaxation of the strict terms of the hire purchase agreements (Exhibits “E” , “F” and “G”), which relaxation is not intended under clause 12 of each of the Exhibits to prejudice or affect the strict rights of the parties: Animashaun v. C.F.A. (1960) L.L.R. 151. I agree with the learned counsel for the Defendant that there was no consideration to ground it in any case in law: U.T. C. v. Walter Hauri (1940) 6 W.A.C.A. 148. There is no quasi-estoppel or promissory estoppel here, for that may only be used as a shield, not as a sword – see per Lord Cairns in Hughes v. Metropolitan Rly. Co. (1874-80) All E.R. Rep. 187………”

Then, as I said, he dismissed the plaintiff’s claim with costs. On appeal to the Court of Appeal, Ibadan Division, coram: Uche Omo, Dosunmu, and Omololu-Thomas, JJ.C.A., the appeal was allowed: Their Lordships, per Thomas, J.C.A. held:

“In this case the learned trial Judge ought to have considered the full effect of the unequivocal terms of Exhibit B along with the stipulations of Exhibits E,F,G. There is provided in the agreement Exhibit B a term not only that any default in the instalmental repayment makes the whole amount payable, but also that the amount becomes recoverable by legal action.”

Later he continued’

“The existence of Exhibit B in the form it appears, seems to me to suggest that the parties intended to extinguish or oust the original contract of Hire Purchase in its entirety, and substitute a new agreement of sale. Grounds 1 and 5 therefore succeed. (Refer to Morris v. Baron (1918) A.C. 1 at p. 18 & 19).”

In a nutshell, they held that the contract of sale, Exh. B, extinguished the earlier hire purchase agreements and so the defendant was wrong to have seized the vehicle. They therefore, allowed the appeal, with costs. On the question of damages, they held:

“On the question of damages dealt with under Ground 4 of the Grounds of Appeal, by the wrongful seizure and detention of the vehicle, the Defendant had acted in breach of the terms of Exhibit B, and as the evidence as to loss suffered by the Appellant has not been rebutted or contradicted he is entitled to judgment for the return of the vehicle or its value, N2,400.00, and for the loss of use of the vehicle up to the date of judgment of the lower court in the sum of N20.00 per day. The Appellant is not entitled to any general damages since to award, this will amount to double compensation in view of the damages awarded already (Shell-BP Petroleum Development Coy. vs. Jammal Engineering (Nigeria) Ltd. (1974) 4 S.C. 33).”

The defendant, hereinafter called the appellant, has appealed to this Court on only:

“PART OF THE DECISION COMPLAINED OF

The award of damages for loss of use of the vehicle up to the date of judgment in the High Court i.e. from 21st May, 1972, to 16th July, 1976, (1,516 days) at N20.00 per day – N30,320.00.”

The plaintiff shall hereinafter be referred to as the respondent.

Both parties filed their respective briefs of argument. The issues for determination in the appeal were set out by the appellant in his brief thus:

“(a) Having recognised that the action arose from a contract of sale see paragraph 3 on page 135 of the Record), should the Court of Appeal not have considered the failure of the Respondent to take reasonable steps to mitigate his loss in the award of damages for loss of use

(b) Has the Court of Appeal not failed to consider that loss of earnings is special damage which should be strictly proved, having regard to its finding (see page 137 of the Record) that as the evidence to loss suffered by the Appellant (now Respondent) has not been rebutted or contradicted he is entitled to judgment for the loss of use of the vehicle up to the date of judgment of the lower court in the sum of N20.00 per day”

(c) As the vehicle was not an irreplaceable article, should the Court of Appeal not have treated it as a constructive total loss and award its value at the date of seizure (i.e. N2,400.00) as the measure of damages”

I must pause here to make some observations on these issues as framed. From the “Part of the decision complained of’ set out above, it appears to me that issues numbered (a) and (c) cannot properly arise in this appeal. Counsel will do well to always remember that the grounds of appeal and issues for determination are limited to and circumscribed by the PART OF THE DECISION COMPLAINED OF. Any ground or issue outside the statement of “part of the decision complained of’ is a useless surplusage.

The first issue is also objectionable on other grounds. In the first place, the question of failure to mitigate damages is being raised for the first time in this Court. It is true that a plaintiff has a duty not to increase the damages recoverable by him by his own voluntary and unnecessary act: See Admiralty Commissioners v. SS. Amerika (1917) A.C. 38. It is also true that the law imposes on him a duty to do all in his power to minimise his loss, otherwise anything which must be ascribed to his failure to do so is not recoverable from the defendant; See British Westinghouse Co. Ltd. v. Underground Electric Railways Ltd. (1912) A.C. 673. But that duty is to act reasonably: Payzu Ltd. v. Saunders (1919) 2 K.B. 581. As it is always a question of fact whether a person has acted reasonably or not, it is always necessary to raise the issue of the duty to mitigate and failure to discharge that duty on the pleadings so that the court of trial could go into it and thereafter express its opinion as to whether or not the plaintiff would, on the facts of the particular case, be adjudged to have reasonably breached that duty. This Court has made it clear a number of times that before a point not raised in the courts below could be entertained in this Court it must be satisfied that it is a substantial point of law and that no evidence could have been given which, if it were raised in the court below, would have affected the decision. See Shonekan v. Smith (1964) 1 All N.L.R. 168, at p.173; Akpene v. Barclays Bank of Nig. Ltd. & Anor. (1977) 1 S.C. 47. See also Kate Ent. Ltd. v. Daewoo Nig. Ltd. (1985) 2 N.W.L.R. (Part 5) 116. Adegbaiye v. Loyinmi (1986) 5 N.W.L.R. (Part 43) 655.

In the instant appeal the duty which the appellant is imputing to the respondent is that of buying another vehicle in order to mitigate his loss. It would have been necessary for the learned trial Judge to consider whether he was in a position financially to do so. The inescapable impression from the totality of the evidence before the court is that he was so impecunious that he could not do so. He could not even pay the agreed instalments: that was the origin of the problem which led to this litigation. The law will never impose upon or impute unto a man a duty that will prove impossible for him to perform. Moreover, the appellant is required under the provisions of Order 6 rule 5 of the Supreme Court Rules, 1985, to have sought leave to raise such a new point before he includes it in his brief.

But he did not. For these reasons, I need to consider only issue number two which was the only issue argued in this appeal. “Issue” number (c) is not an issue but argument. On the single arguable issue, the learned counsel for the appellant submitted that for the court of trial to award N20.00 per day for loss of use for a period of more than four years is grossly gratuitous.

He submitted that having been awarded N2,400.00 as market value of the vehicle as at the date of seizure, the respondent was only entitled to such further sum as would compensate him for loss of earnings during the period reasonably required for procuring another vehicle. In support he cited the cases of – Kerewi v. Odegbesan (1965) 1 All N.L.R. 95; S.C.O.A. Ltd. v. R. O. Ogana (1958) W.R.N.L.R. 141, at p.144; and Bakare & Anor. v. V.A. Jakh (1969) N.M.L.R. 262. In his submission, it was not enough for the respondent to just say in his evidence that he was making N20.00 per day. As he did not give evidence as to his running expenses he was not entitled to the award as he could be-only entitled to net income.

In his reply, the learned counsel for the respondent submitted that the respondent proved his entitlement to the damage. Respondent, he pointed out, gave lucid evidence on the point and this was not challenged or contradicted. It was therefore rightly accepted. He cited the cases of Boshali v. Allied Commercial Exporters (1961) 1 All N.L.R. 917 at p.921; Ugwe Ukoha & Ors. v. Golden Okoronkwo (1972) 1 All N.L.R. (Part 11) 100, at p.105;

Obi Obembe v. Wemabod Estates Ltd. (1977) 5 S.C. 115 at p.139/140; Incar Nigeria Ltd. v. Adegboye (1985) 2 N.W.L.R. (Part 8) 453; Odulaja v. Haddad (1973) 1 All N.L.R. (Pt.2) 191. He pointed out that in a claim for detinue the plaintiff is entitled to recover the chattel or its value as well as damages for its detention: Adefunke v. Ikpehai (1958) W.R.N.L.R. 33.

The first point I wish to make is that the learned counsel for the appellant has totally misapprehended the principle which governs the issue of measure of damages in actions for detinue. Apparently, he has confused it with the measure of damages in actions for conversion. It must be clearly stated that in an action for detinue the gist of the action is the unlawful detention of the plaintiff’s chattel, which he has an immediate right to possess, after the plaintiff has demanded its return. So, a successful plaintiff is entitled to an order of specific restitution of the chattel, or, in default, its value, AND also damages for its detention up to the date of judgment. See: Rosenhal v. Alderton & Sons Ltd. (1946) K.B.374, C.A.

As for the period relevant for the assessment, the principle is sufficiently summarized by the head-note in the report, at pages 374-375. It states:

“In an action of detinue, the value of the goods to be paid by the defendant to the plaintiff in the event of the defendant failing to return the goods to the plaintiff must be assessed as at the date of the verdict or judgment in his favour and not at that of the defendants refusal to return the goods, and the same principle applies whether the defendant has converted the goods by selling them or has refused to return them for some other reason.”

Indeed in that case, the plaintiff recovered an increase in the value of the goods subsequent to the failure of the defendant to return the goods when demanded. Inspite of the statement by the English Court of Appeal in Sachs v. Miklos (1948) 2 K.B.23, at p.38 suggesting that the measure of damages in detinue and conversion is the same – a statement that has been criticised and not followed (See Clark & Lindsell: On Torts (13th Edn.) para. 1152)- the true position is that an action for conversion is a purely personal action which results in pecuniary damages only reckoned at the time of the conversion whereas an action in detinue partakes of the nature of an action in rem for the restitution of the goods and damages, reckoned at the time of the judgment. See on these Clark & Lindsell on Torts (13th Edn.) para. 1151, 1152, 1153and 1180. Thus the case of Eunice Adefunke v. D. Ikpehai (1958) W.R.N.L.R. 33, at p.34 was rightly decided, per Hedges, J. The learned counsel for the appellant was therefore wrong when he contended that the respondent was only entitled to the value of the motor vehicle at the time of the seizure and such further sum as to compensate him for his loss during the period reasonably sufficient for him to purchase another motor vehicle. I have already stated that the issue of mitigation was not before the court. Incidentally none of the cases relied upon by learned counsel for the appellant for his submission, namely: Bakare & Anar. v. Jalkh (supra), Kerewi v. Odegbesan (supra) and S.C.O.A. Ltd. v. Ogana (supra) was a case of detinue. It is dangerous to confuse the measure of damages in a case of detinue with that of conversion or other torts on trespass to goods. The next question raised by the appeal, as argued, is: did the respondent prove the item of special damage which he claimed and which was awarded to him by the Court of Appeal What are the facts

Now, part of the respondent’s claim in the High Court runs thus:

“The plaintiff also claims from the defendant the sum of N20.00 per day (or loss of income as a result of the wrongful seizure and detention of the said vehicle.”

In paragraph 9 of the statement of claim the respondent pleaded further as follows:

“At the material time the plaintiff as a professional transporter had only these three vehicles and when two of them broke down, the plaintiff depended and still depends on the earnings realized from the only one remaining vehicle No.WC 4102 for his trade and for the maintenance and up-keep of himself and his family and for the discharge of his obligations under the afore-mentioned Agreement. The average net income accruing from the said vehicle alone was N20.00 a day.”

Thus he averred that it was net income. This was merely denied in paragraph 3 of the statement of defence.

In his evidence the respondent testified inter alia as follows:

“At the time the defendant seized the vehicle WC 4102, I was realizing at least N20.00 per day.”

The respondent was not cross-examined on this, even though he was cross-examined at length on other issues. No evidence to the contrary was called either. The Court of Appeal, after reversing the High Court decision, noted that the above evidence was neither rebutted nor contradicted and awarded the sum of N20. 00 per day till the date of the High Court judgment to the respondent as loss of use. I have already stated that in law, if the respondent proved his entitlement to the award, he was entitled thereto till the date of judgment.

I must observe that the respondent’s case was that N20.00 a day was his net income. His evidence was to the effect that he was making at least this sum of N20.00 everyday. I take it that to say that he was making at least N20.00 per day was another way of saying that it was his minimum or net income. The outstanding question is whether, on the above facts, the Court of Appeal was right to have held that he proved the item of special damage. In this regard, I must hear in mind the statement of principle by this Court, per Coker, J.S.C., in Oshinjinrin & Ors. v. Alhaji Elias & Ors. (1970) 1 All N.L.R. (Part 1) 153 at p. 156, where he stated:

“Undoubtedly the rule that special damages must be strictly proved applies to cases of tort. In effect the rule requires anyone asking for special damages to prove strictly that he did suffer such special damages as he claimed. This however does not mean that the law requires a minimum measure of evidence or that the law lays down a special category of evidence required to establish entitlement to special damages. What is required is that the person claiming should establish his entitlement to that type of damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head, otherwise the general law of evidence as to proof by preponderance or weight usual in civil cases operates.”

There can be no doubt, from what I said above, that it is a type of special damage to which a successful plaintiff in a case of detinue would be ordinarily entitled. As for whether he, in fact proved entitlement to it I must point out that, as the above dicta in Oshinjinrin’s Case bear out, proof of special damage is not radically different from the general method of proof in civil cases. It is equally proved on a balance of probability. Where the plaintiff pleads the special damage with particularity and gives some evidence of it and the defendant does not challenge or contradict the evidence given, he has discharged, his onus of proof and, unless the evidence is of such a quality that no reasonable tribunal can accept it, it ought to be accepted. This is because where evidence called by the plaintiff in a civil case is neither challenged nor contradicted, his onus of proof is discharged on a minimal of proof. See S.O. Nwabuoku v. P.N. Ottih (1961) 1 All N.L.R. 487. This principle has been applied in proof of special damage by the Privy Council. In Boshali v. Allied Commercial Exporters Limited (supra) at pp. 920-921 it was applied by the Privy Council to restore an award of special damage by a court of trial. It was also applied by this Court in the case of Ukoha v. Okoronkwo (supra). On this principle, it appears to me that the Court of Appeal was right to have accepted that item of special damages as having been duly established in view of the state of the pleading and the uncontradicted and unchallenged evidence to which I have referred above.

For the above reasons I dismissed this appeal with costs on the 23rd of January, 1989, as completely unmeritorious. I have now given my reason for doing so.

OBASEKI, J.S.C.: On the 23rd day of January, 1989, after reading the briefs of argument, studying the record of proceedings and judgment of the Court of Appeal and the High Court and hearing counsel in oral argument in amplification of their briefs, I dismissed the appeal for lack of merit and reserved my reasons for the judgment for delivery today. I now proceed to give them.

However, before today, I had the privilege of reading the draft of the Reasons for Judgment just delivered by my learned brother, Nnaemeka-Agu, J.S.C. The opinions on the issues for determination in this appeal expressed therein are in accord with mine and I hereby adopt them as my own. The claim endorsed on the writ of summons taken out in the High Court was:

(1) for the return of plaintiffs commercial vehicle registration No.WC4102 or its value;

(2) N20.00 per day for loss of income as a result of the wrongful seizure from the 21st day of May, 1972 at IIe-Ife;

(3) N1,000.00 general damages for the wrongful seizure and detention of the said vehicle.

The plaintiff/respondent had bought the vehicle from the defendant/appellant on credit but failed to meet up with the payment of the instalments as they fell due. Consequently, the defendant in the belief that the agreement was a hire-purchase agreement, seized the vehicle from plaintiff’s driver. The defendant did not deny complaint of the seizure of the vehicle but maintained that he sold it to the plaintiff on hire-purchase. The agreement was admitted as Exhibit B.

The learned trial Judge, Agbaje Williams, J., holding that there was no consideration to ground Exhibit B dismissed the claim.

On appeal to the Court of Appeal, the decision was reversed and the plaintiffs claim for the return of the vehicle or N2,400.00 its value. The Court of Appeal also awarded the N20.00 per day loss of profit from 21st May, 1972 to 16th July, 1976. This sum amounted to N30,320.00. The defendant was dissatisfied with the judgment of the Court and hence the appeal to this Court.

The main issue was the issue of construction of the contract document Exhibit B. Exhibit B shows on the face of it that it was a credit sale not hire purchase so the issue of liability was settled against the appellant.

The other issue properly raised is the issue of excessive award of loss of earning based on N20.00 per day. Learned counsel for the appellant was unable to show that the award was made on wrong principle or that there was no pleading or evidence to support the award of N20.00 a day as loss of revenue. The evidence of N20.00 a day given by the respondent was uncontradicted. He was not even cross-examined on it.

What is required of proof of special damages is that the person claiming should establish his entitlement to the type of damages by credible evidence that would convince the Judge that he is entitled to an award under that head. See Osinjinrin & Ors. v. Alhaji Elias & Ors. (1970) 1 All N.L.R. (Part 1) 153 at 156.

In the absence of proper reason why uncontradicted evidence should not be accepted a trial Judge must accept it and act on it; Nwabuoku v. Ottih (1961) 1 All N.L.R. 487.

It was for the above reasons and the reasons given by my learned brother, Nnaemeka-Agu, J.S.C., that I dismissed the appeal.

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SC.35/1985