Horst Sommer & Ors. V. Federal Housing Authority (1992)
LawGlobal-Hub Lead Judgment Report
OMO, J.S.C.
The plaintiffs/appellants claimed in the High Court of Lagos the sum of N1.5 million as damages for wrongful seizure and conversion of plant, machinery and equipment, in the premises of the defendant/respondent, which they claimed to belong to them.
The case of the plaintiffs/appellants is that these plants, machineries etc, were ordered by them and leased to the contractors of the defendant/respondent in the development of the Festac Village, known as Condotte Garbodi (Nigeria) Limited. The defendant/respondent, on the other hand, contends that the aforementioned equipments were purchased from mobilization funds given by them to the said contractors: and brought on the contract site within the Festac Village, where they used them for their work. Following their failure to fully perform their contract and pursuant to agreement between them and their contractors, ownership of the assorted equipments on the site passed on to it. It is admitted by the parties that the equipments have since been disposed of by defendant/respondent.
After hearing the parties and counsel on their behalf, the learned trial Judge decided that the plaintiffs/appellants (hereinafter) called “appellants” simpliciter) had proved their case on a preponderance of evidence led and awarded them N 1.million as value of the equipments seized by the defendants/respondents (referred to simply as “respondent” hereafter). He also awarded the appellants the sum of N200,000.00 as “probable profit which could have been made by them”. And N1.000 as costs.
The respondent, not satisfied with that judgment filed an appeal in the Court of Appeal against same. 7 issues were set out in its brief for determination by it (as appellant) as follows:-
(1) Did the Appellant award road construction project to Condotte Garbodi (Nigeria) Ltd. later known as Afro-Atlantic Devco (Nigeria) Limited as per Exhibit “6” the contract Document
(2) Did the Plaintiffs/Respondents show any documentary evidence of the ownership of the disputed equipments, etc., as listed in the Statement of Claim
(3) In as much as the disputed equipments, plants etc., were assorted and of different kinds and models, was there any documentary evidence e.g. invoices, receipts, showing the different prices tendered by the Plaintiffs/Respondents to authenticate the value of the disputed goods since the Plaintiffs/Respondents claim was based on special damages which in law must be strictly proved
(4) Were the Plaintiff/Respondents in the light of Exhibit “E” written by 3rd Plaintiff/Respondent Shareholders/Managing Director/Chairman in the company known as AFRO-ATLANTIC DEVCO (NIGERIA) LIMITED hitherto known as Condotte Garbodi (Nigeria) Limited to which the Appellant awarded and executed a road construction project
(5) For whom was the disputed equipments etc., bought and invoiced to or was there any hiring agreement of the disputed equipments, etc, between the Appellant and Respondents
(6) There was no averment in the Statement of Claim about any hiring agreement and no specific reference was made to any written hiring agreement.
(7) Were Exhibit “H” and “J” which were admitted in evidence and which were not specifically pleaded by the Respondents and especially Exhibit “H” which Counsel for the Respondents relied upon in his address in discrediting the 2nd witness for the Appellant who was at the material time of this action the Managing Director of Afro-Atlantic Devco (Nigeria) Limited (Vide Lines 5-6 pages 65 of the Record) when he was giving evidence for the Appellant in the Lower Court, (My addition: properly admitted)
The appellants, as respondents in the Court of Appeal, resolved the issues for determination into five, which they also set down thus:-
(1) Whether the court below ought to have given judgment for the value of the assorted goods itemized in the Plaintiffs’ Statement of Claim when their respective prices were not specifically pleaded and proved.
(2) Whether the award of N200,000.00 in addition to the award of the value of the goods was justified
(3) Whether the Respondents were members or directors of the contractor company
(4) Whether the judgment is against the weight of evidence.
(5) Whether, having regard to the state of the pleadings, the Respondents ought to have been allowed to lead evidence concerning (a) their status in the contractor company and (b) the want of permission by the Federal Ministry of Finance for them to hold shares.”
In support of its appeal in the court below the present respondent made the following submissions_
(i) that the finding of the trial court as to the value of the goods and profits expected, awarded the appellants (as plaintiffs), was speculative and not supported by the evidence led.
(ii) that the court wrongly put the onus on the respondents (as defendants) to produce evidence to show that the appellants were directors of Afro-Atlantic Devco (Nigeria) Limited (a successor to Condone Garbodi (Nigeria) Limited) without giving due attention and weight to the letter Exhibit E in which the 1st and 2nd appellants were designated Chairman and Director respectively of the said company.
(iii) that the judgment of the trial court is against the weight of evidence because, inter alia,
(a) there was no basis for the finding that the preponderance of evidence favoured the appellants
(b) no pieces of evidence supporting the conclusion were highlighted by the appellants
(iv) that documents and issues not pleaded were relied upon; and important documents disregarded vide Exhibits C, C1 and D. and the issue finally relied upon, to wit, that the equipments were leased to the firm of Condone Garbodi (Nigeria) Limited, was not pleaded.
(v) that evidence in rebuttal led by the appellants should not have been allowed, since they did not file a reply vide paragraphs 8 and 10 of the amended statement of defence.
The appellants (as respondents in the court below) countered –
(i) that there was available evidence of the 1st plaintiff as to the value of the goods, which was not challenged by the respondents under cross-examination. The court believed that evidence and its decision cannot therefore be faulted.
(ii) that Exhibit H, which is an agreement between the appellants and indigenous contractors shows that the plants and machinery agreed to be bought by the appellants is worth “approximately N1 million”.
(iii) that P.W.1 in his testimony assessed the equipments as N904,897.81k (almost N1 million)
(iv) that the N20,000 awarded is justificable on the basis of a bank interest on capital seized
(v) that whether 1st and 3rd appellants signed any document as Chairman and Director of Afro-Atlantic Devco (Nigeria) Limited, Exhibit H shows that they can only become directors of the company and property in the equipments in issue pass to the company after and if the Ministry of Finance gives them necessary clearance. The court was right to hold that no such clearance was given.
(vi) that on the submission that the fact of non-membership of the company by the appellants and evidence of rebuttal was wrongly allowed.
(a) the issue was pleaded; facts adduced being mainly, in support; alternatively, the court can allow an amendment to plead the necessary facts; but
(b) that the court is bound to consider the issue of appellants operating without the prior approval of the Ministry of Finance because it involves the question of illegality”.
In its judgment, the Court of Appeal allowed the appeal of the present respondents (as appellants). It set aside the judgment of the High Court and dismissed the claims of the respondents (as plaintiffs). It is against this judgment that the appellants (plaintiffs and respondents in the two courts below) have appealed to this court.
The appellants set out in their brief (paragraph 1.3) the reasons why the Court of Appeal set aside the judgment of the High Court in their favour as follows;-
(i) the plaintiffs did not establish that they were the owners of the plant, machinery and equipment;
(ii) the plaintiff did not prove the identity of the said plant, machinery and equipments;
(iii) the plaintiffs were not the exclusive owners of the plant. Machinery and equipments because their witness admitted under cross-examination that he (the witness) and Condoue Garbodi purchased the plant, machinery and equipments on 50-50 basis;
(iv) (a) the court below was wrong to have put the value of N1m on the plant, machinery and equipment and (b) the prices and dates of purchase of each of the 21 various plants and machinery set out in paragraph 6 of the Statement of Claim are material facts which should have been pleaded;
(v) even if Condotte Garbodi were not the true owners the defendant cannot be held liable for conversion since they took the goods in good faith pursuant to the term of the contract between it and Condotte Garbodi; and
(vi) the award of N200,000.00 in favour of the plaintiff is unjustified”.
In the submission of the appellants the only question for determination is “whether all or any of the grounds mentioned in paragraph 1.3 (my note: set out above) afford valid grounds or ground for setting aside the judgment of the High Court”. The respondent preferred to rely on the issue(s) which the Court of Appeal posed for determination. Per Kolawole J.C.A.
“The main question for determination in this appeal ………………..is whether the plaintiffs proved the case which they presented on the pleadings”
Four sub-issues were then identified under this main issue which are –
(i) Who were the owners of the Plants, Machineries and Equipments claimed by the Plaintiffs
(ii) What were these plants, machineries and equipments
(iii) What was the value of these equipments and;
(iv) What was the probable profit which the plaintiffs would have made on these equipments if they were let out assuming that the goods were plaintiff’s goods.”
The first four and the sixth sub-issues for determination as set out by the appellants are coterminous with the four issues raised by the respondent. Although the appellant’s fifth sub-issue was not set out by the respondent, it was considered by the Court of Appeal and in respondent’s brief, and will therefore be determined in this judgment.
On the first sub-issue, whilst the trial judge held that the appellants had proved ownership of the equipment alleged wrongly seized and converted by the respondents, the Court of Appeal came to a contrary decision. The averment in their pleadings by the appellant is that all the equipment ordered out in the name of Condotte Garbodi (Nigeria) Limited belonged jointly to the three of them. In its answer the respondent claimed they belonged to their contractor Condotte Garbodi who brought same to the Festac Village for the execution of the contract awarded to them. They were subsequently impounded in compliance with the decision of the Federal Government, following (as evidence revealed) the failure of the contractors to perform. Appellant’s evidence in support of their pleadings on this sub-issue turned out to be very contradictory, mainly on two grounds. Firstly, whilst the pleadings had averred that the equipments belonged to the three appellants, in his testimony the 1st appellant first stated that they belonged only to two of them – the 1st and 3rd appellants, Secondly, and under cross-examination, the same 1st appellant said the three appellants and Condotte Garbodi “owned the equipments upon a fifty-fifty basis and were partners in the financing of them”. These are most damaging admissions. Appellant’s counsel has submitted that “there must have been a misunderstanding of the effect of the evidence of the witness due to the practice of the court in recording answers of witness without having recorded the question asked.” In other words, that the witness did not mean to say what he is recorded as saying. His further argument in support of this submission is entirely speculative and not supported by the record. This Court is bound by the record of the proceedings before it and it cannot depart therefrom; certainly not on the basis of speculation. Until such a time as electronic recording is introduced into the proceedings of our courts in this country, we will have to rely on the evidence as recorded manually by the courts. Tedious though the practice may be it has so far stood us in good stead, and cannot be allowed to be doubted on the basis of speculation. Counsel for the appellant must be fully aware that to challenge the record, an affidavit has to be filed, which was not done in this case. It is also interesting to note that this speculation on the basis of which we have been invited to give a different meaning to the evidence recorded was not advanced in the Court of Appeal.
Furthermore, the onus of proof on this crucial sub-issue is clearly on the appellants yet they did not tender any documents to support their pleadings/testimony that (a) they in fact (or some of them), paid for the equipments. This is important in view of the evidence of the respondent that mobilization fee to the tune of N938.64 7.50 was paid to Condotte Garbodi to enable it order equipments for the contract, (b) 1st appellant personally guaranteed the equipments and (c) the customs fees were paid from a loan received from U.B.A. Exhibit H, the agreement between Condotte Garbodi and the appellants, as will be shown later in this judgment, cannot be of any assistance to the appellants in this connection.
The case of the appellants as to proof of ownership was finally destroyed when the 1st appellant testified that the equipment, which were bought in the name of Condotte Garbodi, got to the Festac Village site on the basis of a lease agreement between the appellants and that contracting company. Not only was the issue of leasing not pleaded, but no document was produced in support thereof. This sub issue cannot certainly be decided purely on the Court of trial’s disbelief of the evidence of D. W.2 (the reasons for which were not stated), especially as the learned trial judge gave no consideration whatsoever to Exhibit E, a letter dated 18/12n5, signed by the 3rd appellant confirming that the permission of the Ministry of Finance had been obtained for the 1st and 3rd appellants to take over 60% share of the company as foreign investors”, thus confirming the evidence of D.W.2 – Mr. Otoki – that the appellants were directors and co-owners of Condotte Garbodi. The decision of the Court of Appeal that the exclusive ownership by the appellants of the equipments in issue was not proved must therefore be and is hereby confirmed. This also disposes of sub-issue 3.
With regard to sub-issue 2, i.e. proof of identity of the goods alleged converted, appellants counsel has sought to show firstly, that the 1st appellant instructed counsel to write to the respondent claiming the equipments in issue, and that the full list of these equipments was set out in that letter which was tendered and admitted in evidence as Exhibit A. Secondly, that in his testimony in court the 1st appellant gave evidence of the list of equipments when he testified that –
“The three of us claimed the machineries set out in paragraph 6 of our Statement of claim ………………………………………………”(Note: Italics mine.)
I have compared the list of equipment in Exhibit A and paragraph 6 of the Statement of Claim, and they are the same. In my view the combined effect of these two documents, is that the appellants have succeeded in establishing the identity of the goods alleged converted. No further evidence need be led especially since there was no dispute as to the fact that the “said plants etc” were brought to the respondent’s site at the Festac village (vide paragraph 4 of the amended statement of claim at p.46 of the record of proceedings). The finding of the Court of Appeal on this sub-issue is therefore wrong and the appellants succeed thereon.
The argument of appellants’ counsel on the fourth sub-issue is sufficiently succinct to be set out verbatim as follows:-
“2.8 Monetary Value of the Plant etc: In his lead judgment KOLAWOLE J.C.A took the view (that) as the plaintiffs merely gave evidence of the value of all the goods and not that of each individual item, it was not proper for the court to accept that evidence of value and no adverse inference ought to be drawn from the failure of defence counsel to cross-examine the witness who testified about the value. See page 410 line 5 to page 413 line 8. With all due respect to the learned Justice, it is not easy to see how he could have entertained the view he took when the case of Akinbiyi v. Anike (1959) WNLR 16 was before him and actually cited in his judgment. That case and the authorities therein cited were all diametrically opposed to the view taken by the learned Justice.”
In the appellant’s statement of claim not only were the prices of each of the 21 items not stated, but the total value of these items was not given. All the appellants did in paragraph 6 of the statement of claim was to aver that
“6. The plaintiffs in consequence lost the value of the goods, namely N1,000,000.00 and was deprived of the profits ………………………….”
(Note: Italics mine)
Particulars
A. At the Festac site of Messrs Condotte Garbodi
- Mack Truck HD 68554 Ch. No. RD 6855416
- Honschell Mixer Truck Eng. No. 11938 Ch. N1 No. 152699.
- ……………………………..
- to 9 ………………………..
- Diesel Tank 5000 galls with pump.
B. Outside the Festac Site
- Barreiros Mixer Truck Eng. No. 04127306
- to 10 ………………….
II. Low-bed trailer”
After considering the submissions of counsel, the learned Justice of Appeal held that
“In my judgment the price and dates of purchase of each of the 21 various plant and machineries set out in paragraph 6 of the Statement of Claim are material facts which should have been specifically pleaded. This was not done and so the learned Judge was in error to have said that because the first respondent was not cross-examined on the issue of the vague of 1 million Naira judgment should be entered for the Respondent.”
Counsel for the appellant here relies on the case of Akinbiyi v. Anike (1959) WNLR 16 in submitting that the learned Justice of Appeal was wrong in his finding. In that case the respondent had counter-claimed for her goods detained in the appellant’s house. She prepared and tendered a list of the items involved stating the price of each item. This list was admitted in evidence without any objection from the appellant’s counsel who did not cross-examine the respondent challenging the authenticity of the said list either as to the items involved or the prices of each item therein stated. In appeal against the judgment for the respondent for the full amount on the list as claimed, it was contended inter alia that the Magistrate erred in awarding the total amount on the list in the absence of proof. In dismissing the appeal, the learned appellate Chief Justice, stated as follows:-
“Now although the appellant was served with a counter-claim on which the respondent claimed the return of her goods valued at 3200, and though she further served a copy of Exhibit G again on the appellant, and though she tendered exhibit in evidence she was not cross-examined as to the goods on Exhibit G nor as to the price listed against the separate articles. It was the duty of appellants counsel at the trial to cross-examine the respondent as regards the goods she claimed on Exhibit G and to cross examine as to the value. His failure to do so amounted to an admission of their correctness.”
The learned Magistrate has, therefore done nothing wrong in assessing the value of the goods at the unchallenged value placed on them by the respondent. (Note: Italics mine)
The obvious differences between the case presently on appeal. And Akinbiyi v. Anike (supra) are that (a) whereas the value of each item claimed was set out in the latter case, no such value was stated in this case (b) Akinbiyi’s case began in the Magistrate court and pleadings were then not filed. In the present case pleadings were filed and issues were joined requiring strict proof of the items alleged converted. This therefore required that evidence not only of the total value should be given, but also of the value of each item claimed, so as to show how the total value was arrived at. Akinbiyi v. Anike (supra) is therefore clearly distinguishable from the case presently on appeal. The case of Perestrello v. United Paint Co. Ltd. (1969), A.E.R. 479 cited and relied on by the learned Justice on Appeal is really more apposite. Although that was a case of a breach of contract, damages was claimed and the issue whether damages pleaded was “general or “special” arose. The Court therein held inter alia that the nomenclature does not necessarily decide the issue, and that the need to particularize arises whenever it is necessary for the defendant to know what case he has to meet. In the present case, without the value of each item being set out, as stated earlier, how the estimated total value was arrived at by appellants cannot be known to the respondent. It is usual to state of such damages that they are in the nature of special damages. The need for evidence of value of each item is made more imperative in this case by the fact that the evidence as to the total value given was at best speculative (or estimated), to wit, “was about N1,000.000:’ This even means that the total value claimed was not proved.
Failure to cross-examine to elicit the value of each item or how the total value was arrived at is indeed a commendable act of prudence and wise advocacy by respondent’s counsel. The observations of the Court in Aarons Reefs Limited v. Twiss (lR96) A.C. 273 at p. 283 per Lord Halsbury L.C. are very apt. when he stated thus –
“Some comment has been made upon the absence of cross-examination on the subject. I should have thought for myself that it would have been very much for those who had no means of contradicting anything that was said to cross-examine persons who had, by the hypothesis, not many scruples as to what they might say and that it is wiser (it seems to have been successful) to leave the statements which they chose to make to be adjudged by the jury. I think the result shows that learned counsel who conducted the case for the Defendant were wise in the discretion they exercised”, (Note: Italics mine).
It is convenient to deal with the sixth sub-issue next, i.e. that the award of N200,000.00 in favour of the appellants is unjustified N500,000.00 was claimed by the appellants as “loss and damages estimated” suffered by them. The 1st appellant who testified on this stated,
“I do not want to guess how much would have been realised if I had let (them) out to people. I am claiming the value of these goods.”
Since he could not hazard a guess and would appear to have abandoned that aspect of his claim, there was obviously no basis on which the learned trial judge arrived at the figure of N20,000.00. I agree with the learned Justice of Appeal (Kolawole, J) that-
“He is not permitted to use his own view as to what the probable loss of profit would be when Horst Sommer himself said he could not give any amount”.
The further submission of appellant’s counsel that the Bank rate could be used as a yardstick is also untenable. No authority for any such proposition was adduced.
The further submission that this court should give the appellants the opportunity of establishing the quantum of damages if it takes the view that he is entitled to damages which they failed to establish, for which the case of Ayodele James vs. Mid-Motors Limited ( 1978) 11/12 S.C. 31(74), was relied upon, does not require any serious consideration. Not only have the appellants failed to establish exclusive ownership of the goods but in Ayodele’s case the court below did not assess any damages (because it thought none was payable); and so the Supreme Court sent the case back to the trial High Court for damages to be assessed. In the present case the damages claimed have not been proved, and the only course open to this court is to dismiss same.
As to sub-issue five (v) the complaint that the defence of “good faith” raised by Nnaemeka-Agu, J.C.A. (as he then was) was in fact not pleaded by the respondent is correct. Since it was not pleaded, it goes therefore to no issue; and since it is not the main plank or indeed an important point on which the appellant’s claim was dismissed, it has led to no miscarriage of Justice.
What was however clearly pleaded is estoppel by conduct. In paragraph 9, the respondent (as defendant) pleaded that –
“9. The Defendant will further contend that the plaintiffs either jointly or severally are also estopped by their conduct from purporting to claim any interest in the said disposed plants”
Here again a decision on whether the respondents are estopped by their conduct from maintaining an action of conversion is not necessary for the determination of this appeal. Although pleaded as above, it was not seriously canvassed by either party in their briefs or submissions before the Court of Appeal. The finding should therefore be regarded as an unnecessary comment.
Finally, a few words may be said about the “probative value of Exhibit “H” as appellant’s counsel has put it in paragraph 2.6 of appellants’ brief. As Nnaemeka-Agu, J.C.A. (as he then was) correctly found, it was not pleaded, and so even if it was admitted under cross-examination to discredit D.W.2. it cannot be used for any other purpose.
For the reasons which I have set out hereinbefore in this judgment, this appeal must fail and it is hereby dismissed with costs to the respondent assessed at N1,000.00 only.A. G. KARIBI-WHYTE, J.S.C: I have read in advance the judgment of my learned brother Uche Omo, J.S.C. in this appeal. I entirely agree with his reasoning and conclusion that this appeal should be dismissed. I also hereby dismiss the appeal.
Appellants shall pay costs assessed at N1,000 to the Respondent.S. M. A. BELGORE, J.S.C: To my mind this case was no more than a voyage of discovery. The cardinal principle of our civil litigation is that whoever asserts must offer proof to succeed in his claim. It is impossible on the motley evidence before trial court to find justification that the plants for the execution of the projects remotely belonged to the appellants; the Court of Appeal rightly so held. I agree entirely with the reasoning and conclusions of my learned brother, Omo J.S.C. that this appeal has no merit and ought to be dismissed. I adopt his judgment as mine and I therefore dismiss this appeal with N1,000.00 costs to the respondent.
SC.176/1986
