I. B. Ogunsola & Anor V. Taiye Ibiyemi (2007)

LawGlobal-Hub Lead Judgment Report

JOHN AFOLABI FABIYI, J.C.A.

This is an appeal against the judgment delivered by Popoola, J. on 31st March, 1998 while sitting at the High Court of Justice, Ilaro in Ogun State of Nigeria. Therein, the Plaintiff was awarded a total sum of N367,500 as damages against the defendants while the 2nd defendant’s counter-claim was dismissed in its entirety.

On 8th March, 2007 when this appeal fell due for hearing, the appellants, who were duly served, failed to show up in court. As well, they were not represented by counsel. Since briefs of argument were filed by the parties, the appeal was deemed as argued vide Order 6 Rule 9(5) Court of Appeal Rules, 2002.

As manifest in paragraph 29 of the amended statement of claim, the plaintiff’s claims read as follows:

“(a) An order for the delivery up by the defendants to the plaintiff of the plaintiff’s Mitsubishi Gallant Car Registration No. OG 4062 YA with its original particulars; wrongly detained by the 1st defendant or its value of N300,000.00 (Three hundred thousand Naira).

(b) One hundred and seventeen thousand five hundred Naira (N117,500.00) being damages for the loss of use of the motor car at the rate of Five hundred naira (N500.00) per day from Tuesday the 26th of July, 1994 to Wednesday the 26th day of April, 1995 and thereafter at the rate of five hundred naira (N500.00) per day till possession of same is delivered to the plaintiff or till judgment.”

In its amended statement of defence and counter-claim, the 2nd defendant counter-claimed as follows:

“(a) The sum of N115,449.41 being principal and accumulated interest as at 31/12/96 and interest at the rate of 12% per annum until the debt is liquidated or alternatively;

(b) An order for the sale of the vehicle and for the return of the remaining amount, if any, to the plaintiff after deducting the amount being owed.”

Upon the completion of pleadings, the plaintiff testified and called two witnesses. On the part of the defendants, one witness adduced evidence. It is at this point apt to assemble the evidence adduced on both sides of the divide, albeit, briefly. The plaintiff at the material time was a customer of the 2nd defendant bank. The 1st defendant was the 2nd defendant’s manager. The plaintiff took an overdraft of N40,000 from the 2nd defendant in addition to the amount he had in his account to enable him purchase a motor vehicle. He bought a vehicle with Reg. No. OG 4062 YA which, within two weeks of purchase, had mechanical fault. He approached the 2nd defendant for additional overdraft to enable him carry out necessary repairs. The 1st defendant, instead of advancing further overdraft to the plaintiff, requested him to hand over the vehicle and the particulars to him so that he could take it to Lagos for repairs on behalf of the plaintiff. He handed over the vehicle and the particulars to the 1st defendant. The plaintiff later wanted to have the vehicle returned to him but his request was turned down. The defendants, on their own, used the vehicle as a taxi and changed the colour from Lagos hackney colour to brown. The plaintiff, through his solicitor, wrote a letter of demand for the return of his vehicle but it was not released to him. The letter of demand is Exhibit A.

The plaintiff later borrowed the sum of N6,200 from one Ologbonori and made a promissory note so as to convince the 2nd defendant to release the vehicle to him. But instead of releasing the vehicle to the plaintiff, the defendants paid the loan on behalf of the plaintiff to Ologbonori.

The plaintiffs vehicle and the particulars were handed over to the defendants between April and May 1994. The overdraft was due to mature for payment in August 1994. The defendants refused to release the vehicle when overdraft had not matured for payment. The defendants never demanded for payment from the plaintiff.

The vehicle was only released to the plaintiff on 3/6/97 by order of court. The plaintiff testified that he would have earned N500.00 daily from 26/7/94 to 26/4/95. He admitted owing the 2nd defendant the sum of N51,200 under cross-examination. P.W.2 and P.W.3 gave evidence of the efforts made to get the plaintiffs vehicle released to him after the colour had been changed to brown.

On behalf of the defendants, D.W.1 testified that the plaintiff owed the 2nd defendant the sum of N115,449.411 being overdraft plus accrued interest. The defendants never demanded for payment of the debt before they filed their counter-claim. Through D.W.1, the vehicle particulars procured by the 1st defendant were admitted as Exhibits J-J1. He attempted to tender the plaintiffs statement of account but same was rejected based on a sustained objection.

The learned trial judge was properly addressed by the learned counsel for the parties. In his considered reserved judgment, the learned trial judge found that a case in detinue was made out by the plaintiff against the defendants. He awarded the sum of N117,500 for loss of use of the vehicle from 26/7/94 to 26/4/95 and another sum of N250,000 for unlawful detention of the vehicle during the same period – 26/7/94 to 26/4/95.

The 2nd defendant’s counter-claim was dismissed in its entirety on the ground that no prior demand for payment was made before the initiation of the counter-claim. Curiously, at page 131 lines 30-32 of the transcript record of appeal, the learned trial judge found as follows:

“However, the plaintiff has admitted owing the defendant N51,200.00 and this is the amount I find as a fact the plaintiff is actually owing the defendants.”

The defendants felt unhappy with the stance posed by the learned trial judge and have appealed to this court. The Notice of Appeal filed on 23/4/98 was accompanied by seven (7) grounds of appeal.

The relief sought from this court is to allow the appeal and set aside the decision of the lower court and allow the counter-claim of the second defendant.

On page 4 of the appellants’ brief of argument, five issues distilled for determination of the appeal read as follows: ,

“A) Whether the evidence before the lower court disclosed detinue and whether there was proper evaluation of the said evidence by the lower court.

B) Whether special damages awarded were proved as required by law.

C) Whether the amounts of N250,000.00 awarded for unlawful detention and N117,500 awarded for loss of use were proper and whether they did not amount to double compensation.

D) Whether the lower court was justified dismissing the 2nd defendant’s counter-claim.

E) Whether there is need in law for a demand to be made by the 2nd defendant for payment of the overdraft taken by the plaintiff before a court action can be taken by the 2nd defendant.”

On behalf of the respondent, the three issues couched for the due determination of the appeal read as follows:

“(i) Whether the learned trial judge was right in finding for the plaintiff in his action for detinue.

(ii) Whether there is evidence in support of the damages awarded in favour the plaintiff by the learned trial judge.

(iii) Whether the counter-claim of the 2nd defendant for the payment of the overdraft by the plaintiff was not thereby premature for failure to make a formal demand before action and if so, what is the appropriate order?”

On pages 4-5 of the respondent’s brief of argument, preliminary objection was raised as to the propriety of grounds 1, 3, 4, 5 & 6 of the grounds of appeal wherein error in law and misdirection were alleged at the same time. The learned counsel for the respondent touched on the point before the main appeal was heard. That is how it should be. It is equally incumbent upon me to determine same at this point in time. For ease of reference and adequate consideration, the stated grounds with their particulars are reproduced as follows:

“1. That the learned trial judge erred in law and misdirected himself on the facts when he treated a Community Bank as a Conventional Commercial Bank.

PARTICULARS

1. Granting of loan/overdraft to customers in a Community Bank require (sic) no detailed formalities as in Commercial Banks.
2. The practice and operation of Community Banks as regards borrowing and recovering same differs from that of Commercial Banks.
3. That the learned trial judge erred in law and misdirected himself on the facts when he dismissed second Defendant’s counter-claim.

PARTICULARS

1. The plaintiff admits liability for the principal sum borrowed of N56,000 (sic) both in his pleadings and evidence.
2. The second Defendant is by custom entitle (sic) entitled to charge I interest on the principal sum as the plaintiff agreed to this.
3. The learned trial judge erred in law and misdirected himself on the facts when he awarded damages for loss of use and N500.00 per day for a very long period of time.

PARTICULARS

1. There is evidence that the vehicle is a secondhand one whose value must have depreciated.
2. There is evidence that it was mechanically faulty a week after its purchase and the plaintiff has been unable to repair same.
3. The court did not advert its mind to the decision of the Supreme Court in Paul Ordia v. Piedmint (Nig.) Ltd. (1995) 2 NWLR (Pt.379) 516 and Oseyomon v. Ojo (1997) 52 L.R.C.N. 2068 as regards principles for the award of loss of use in cases of this nature.
4. That the learned trial judge erred in law and misdirected himself when he awarded the sum of N250,000.00 for unlawful detention of the plaintiff’s vehicle.

PARTICULARS

1. The plaintiff had no claim for unlawful detention for N250,000.00.
2. The Court is not a donor of charity and will only give what is asked.
3. That the learned trial judge erred in law and misdirected himself when he held the second defendant liable for loss of use.

PARTICULARS

1. There was no declaration that the seizure by the second defendant was unlawful such declaration having not been sought by the plaintiff in his claim.”

Learned counsel for the respondent I maintained that the above reproduced grounds of appeal are incompetent as they offend the provision of Order 3 rule 2(2), Court of Appeal Rules, 2002 in that they allege error in law and misdirection without reference to passages of the judgment in which such error or misdirection occurred. He asserted with force that the said grounds of appeal are also incompetent for alleging error in law and misdirection at the same time. He cited Obi1jimba Amajideogu & ors v. Odogabi Unonaku (1988) 2 NWLR (Pt.78) 614 at 621-622; Global Transport Oceanic Co. S. A. v. Free Enterprises Ltd. (2001) FWLR (Pt.40) 1706 at 1718; Anadi v. Okoli (1977) NSCC (Vol. 2) 117 at 120.

Learned counsel submitted that since the said grounds of appeal allege error in law and misdirection at the same time, it is not certain whether the particulars given relate to error in law or misdirection. He referred to Paul Nwadike v. Cletus Ibekwe (1987) 4 NWLR (Pt. 67) 718 at 744. Learned counsel urged that the stated grounds of appeal be struck out.

Learned counsel further submitted that by reason of the incompetent grounds of appeal, all the issues formulated by the appellants touching on the incompetent grounds will also be incompetent. He cited Union Bank of Nigeria Ltd. v. Simon Osezuah Danor (1997) 2 NWLR (Pt. 485) 28 at 42-43. He opined that an issue for determination must be distilled from a competent ground or grounds of appeal. He urged that issues A, B & C in the appellants’ brief of argument be struck out as they were based on incompetent grounds of appeal.

In the appellants’ reply brief, it was submitted that all the grounds complained about, have particulars attending to them. He cited the case of Umoru v. Zibiri (2003) 11 NWLR (Pt. 832) 647 at 652. He felt that the stated grounds are competent and the issues formulated from them are also competent.

The stated grounds in the appellants’ notice of appeal complained of error in law and misdirection. In each ground, particulars were given of the alleged misdirection in both issues of law and fact. Order 3 rule 2(2) of the Court of Appeal Rules, 2002 provides:

“If the grounds of appeal allege misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.”

Considering a similar preliminary objection touching on the application of Order 8 rule 2(2) of the Supreme Court rules with identical provision with the above stated rule in Umorli v. Zibiri (supra) at page 658, Kalgo, JSC pronounced as follows:

“A misdirection is itself an error as entails following a ‘wrong direction’. It can also be of law or fact. It is also common ground that you almost always apply the law to a certain set of facts. i In this case, the appellants have given particulars; some containing issues of facts and some containing issues of law each in an attempt to satisfy the requirement of Order 8 r. 2(2) (ibid). I have carefully examined the 3 grounds of appeal and find that grounds 1 and 2 are in compliance with 0.8 r. 2(2) 1…”

I must here note it that in Paul Nwadike v. Cletus Ibekwe (supra) at p. 744, the apex court therein observed as follows: “A ground of appeal cannot be an error in law and a misdirection at the same time. By their nature one ground of appeal cannot be two. The word ‘misdirection’ originated from the legal and constitutional right of every party to a trial by jury to have the case which he had made, either in pursuit or in defence, fairly submitted to the consideration of the tribunal.”

I have carefully examined grounds 1, 3, 4, 5 and 6 of the grounds of appeal with particulars attending to them and find that they are in compliance with Order 3 rule 2(2), Court of Appeal Rules, 2002. This must be so as I am bound by the stance in Umoru v. Zibiri (supra). There seems to be no hard and fast rule. The position appears fluid. Grounds of appeal in an appellate court playa role similar to pleadings in a trial court. See Union Bank of (Nig) Ltd. v. Simon Osezuah Danor (supra) at 42-43. A court will ordinarily allow parties to ventilate their complaints without inhibition. In short, the preliminary objection to the stated grounds of appeal is hereby overruled.

Arguing issues A, B and C it was contended on behalf of the appellants that there was no wrongful detention of the respondent’s vehicle and as such, no detinue was proved. The appellants maintained that Exhibit ‘A’ which was not complied with was issued when the overdraft had not been repaid; and still remains unpaid.

Learned counsel for the appellants submitted that special damages must be particularized in the pleading. He observed that there is no claim in the amended statement of claim for the sum of N250,000.00 awarded for unlawful detention which in any event, amounts to double compensation in view of the other sum of N117,500 awarded for loss of use of the vehicle during the same period. He strongly felt that special damages for unlawful detention leading to the award was most irregular. He cited the cases of Odumosu v. African Continental Bank (1976) 2 FNR 229 at 230; Union Bank of Nig. Plc. v. Emiola (2001) 12 SCNJ 74 at p.88.

Learned counsel for the respondent maintained that the learned trial judge was right in finding for the respondent in his action for detinue. He observed that the respondent took an overdraft from the 2nd appellant to purchase a vehicle with Reg. No. OG 4062. Soon after the purchase of the vehicle, it developed mechanical fault. The respondent requested for further overdraft to enable him repair the vehicle. The 1st appellant requested for the vehicle particulars with a promise to help the respondent carry out repairs in Lagos. The vehicle and its particulars were handed over to the 1st appellant who, after repairs, refused, to return it to the respondent when overdraft had not matured for payment. The colour of the vehicle was changed by the appellants who used it as taxi. The respondent caused Exhibit ‘A’ to be written to the appellants for the release of the vehicle but they failed to return the vehicle to the respondent.

Learned counsel submitted that in an action in detinue, the plaintiff must establish wrongful detention of his chattel by the defendant as well as a demand and the refusal to return the chattel. He cited Christopher Udechukwu v. Isaac Okwuka (1956) SCNLR 185 at 191; Chief J. K. Odumosu v. African Continental Bank Ltd. (1976) N.S.C.C. (Vol.10) 635 at 638.

Learned counsel submitted that the decision of the lower court was right in finding for the plaintiff in detinue. He felt that there is evidence to support the damages awarded by the court including the sum of N250,000.00 for unlawful detention of the vehicle.

Detinue has been defined in Black’s Law Dictionary, eighth edition at p. 481 as a common law action to recover personal property wrongfully taken by another. A claim in detinue lies at the suit of a person who has an immediate right to the possession of the goods against a person who is in actual possession of them and who, upon proper demand, fails or refuses to deliver them up without lawful excuse. The plaintiff may desire the specific restitution of his chattel and not damages for their conversion.

It is clear to me that when the overdraft given by the appellants to the respondent had not matured for payment, the 1st appellant tricked the respondent to hand over his vehicle and the particulars – Exhibit J-J1 under the guise that he wanted to help the respondent to repair it in Lagos. The appellants changed the colour of the vehicle after repairing it and used it as taxi. Such appears dirty and unconscionable. The respondent requested for the return of his vehicle. The appellants refused to budge. Even when Exhibit ‘A’ was written to the appellants for the return of his vehicle which was wrongfully detained, the appellants still refused to act in the right direction. It will amount to an eye wash to find that an action in detinue had not been established by the respondent with the scenario depicted above. The lower court was right when it found for the respondent in his action for detinue. The appellants detained the vehicle; unlawfully and deliberately refused to deliver it to the respondent after its repairs despite the demand made for its return.

Generally, a claim in an action in detinue is not for damages but for the return of the chattel wrongfully detained or its value as assessed. Damages, if proved to have been sustained will, in addition to an order of delivery of the chattel, be awarded. See Odunosu v. African Continental Bank Ltd. (Supra) at p.638.

I have earlier in this judgment reproduced the respondent’s claims at the lower court. He did not claim the sum of N250,000 for unlawful detention of his vehicle from 26-7-94 to 26-4-95. He only asked for the return of his vehicle or its value and N500.00 per day for loss of use of the vehicle from 26-7-94 to 26-4-95. The learned trial judge awarded N250,000 for unlawful detention of the vehicle which was not claimed. For the same period, he awarded the sum of N117,500.00 for loss of use of the vehicle.

A judge has no vires to award that which was not claimed by a party. This is because he is not a Father Christmas. And the court is not a charitable organization. Refer to Egonu v. Egonu (1978) 11-12 SC 111, 113; Babatunde Ajayi v. Texaco Nig. Ltd. (1978) 9-10 SC 1 at 27; Etim Ekpenyong v. Inyang Nyong (1975) 2 SC 71 at 80.

Apart from the above position of things, the amount of N250,000 awarded for unlawful detention, in my considered opinion, equates to double compensation in view of the sum of N117,500 awarded the respondent for loss of use during the same period. Such will be putting the respondent in a position to unnecessarily mine gold. In short, the sum of N250,000 awarded for wrongful detention which was not claimed and which portends like striking gold with semblance of double compensation must be set aside. And I hereby so order.

The appellants appear to be contesting the award of N117,000 at N500.00 per day during the period in which they detained unlawfully the respondent’s vehicle. I am of the opinion that it does not lie in their mouths to complain. After all, in an unabashed fashion, they converted the respondent’s vehicle to a taxi and used it for commercial purpose to their own benefit during the material time. It represents damages for the unlawful detention of the vehicle between 26-7-94 and 26-4-95. The respondent pleaded loss of use of the vehicle and damages in the sum of N500.00 per day. He testified in respect of same and the learned trial judge accepted same. I cannot see my way clear in tampering with same. The award of the sum of N117,500.00 for loss of use was based on a firm ground. It is accordingly sustained.

Issues D and E relate to the outright dismissal of the counter-claim. Appellants’ counsel submitted that such was wrong in law since part of the claim was admitted. He felt that the lower court should have given judgment in favour of the 2nd appellant for the sum of N51,200 admitted by the respondent. He cited the cases of Mosheshe G. Merchants Ltd. v. Nigeria Steel products Ltd. (1987) NWLR (Pt. 55) 111; Nneji v. Nigeria Steel Products Ltd. (1987) 1 NWLR (Pt.55) 111; Nneji v. Chukwu (1988) 3 NWLR (Pt.81) 184.

Learned counsel submitted that the dismissal of the counter-claim for failure to make a demand for payment of the overdraft was wrong. He cited the cases of N. Joachionson v. Swiss Bank (1921) 3 K.B. 110; Johnson v. Odeku (1967) 3 A.L.R. 282. He opined that the counter-claim filed and served on the plaintiff was a sufficient demand which makes the counter-claim a valid action. He urged that the decision of the lower court in dismissing the counter-claim should be set aside.

Learned counsel for the respondent maintained that since the 2nd appellant had not demanded for the repayment of the overdraft, the counterclaim was premature. He cited Angyu v. Malami (1992) 9 NWLR (Pt. 264) 242 at 252; Oluseye Johnson v. A. S. Asobari (1968) 1 ANLR (2nd Ed.) 657 at 662. He felt that the counter-claim cannot take the place of actual demand notice.

Learned counsel felt that the evidence of the plaintiff in which he admitted under cross-examination that he owed N51,200 goes to no issue as it was not pleaded by the parties.

To my mind, the respondent, on this point is attempting to cling tenaciously onto a straw. The issue which led to his own action in detinue originated from the overdraft of N51,200 which he took from the 2nd appellant. That is the principal sum procured by him to enable him purchase the vehicle which was detained and which I culminated in his action in detinue. In paragraph 23 of the Reply to Statement of Defence of the 2nd defendant and defence to counter-claim, the respondent said ‘the defendants have prevented him from punctual repayment of the overdraft due to their overzealousness in arresting the means of the said payment. He was then cross-examined and he admitted under oath that the principal sum of N51,200.00 overdraft was still outstanding. This is a peculiar case where the borrower admitted the real amount granted to him as overdraft. A formal demand for payment before the counter-claim was filed may appear superfluous. The respondent knows that he is owing the amount. And he owned up. I cannot surmise the rationale for the demand notice being canvassed by him. I see nothing sacrosanct or immutable in a demand notice in the prevailing circumstance. If he thinks that the law is an ass, he should be made to appreciate that those who operate it are not donkeys.

The respondent admitted owing the principal sum of N51,200 advanced to him as overdraft. The trial court, without much ado, should have entered judgment for the 2nd appellant in that sum. See Mosheshe G. Merchants Ltd. v. Nigeria Steel products Ltd. (supra) 111. It was utterly wrong for the trial court to have dismissed the counter-claim in its entirety after finding on page 131 lines 30-32 of the transcript record of appeal as follows:

“However the plaintiff has admitted owing the defendant N51,200.00 and this is the amount I find as a fact the plaintiff is actually owing the defendants.”

Having found as above, the outright dismissal of the counter-claim was, in my opinion, based on technicality.

The days of technicality are gone. Substance is now the vogue. Judgment should have been entered for the part of the debt admitted by the respondent. See Nneji v. Chukwu (supra) 184. Justice should be done to both sides of the divide. The respondent should pay to the 2nd appellant the amount admitted by him. The lower court’s order dismissing the counter-claim in its entirety is set aside.

In its place, judgment is hereby entered in favour of the 2nd appellant against the respondent in the sum of N51,200.00 being unpaid principal overdraft advanced to him; admitted as outstanding.

In conclusion, this appeal is allowed in part. The respondent is only entitled to the sum of N117,500 for loss of use of his vehicle which was unlawfully detained by the appellants. I note that the said vehicle has already been released to him. The respondent shall pay the sum of N51,200.00 to the 2nd appellant being the amount of the principal overdraft admitted as being owed by him.

With the above, I hereby draw the curtain. In the circumstance of this appeal, I feel that each side should takecare of his/its own costs. I order accordingly.

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Other Citations: (2007)LCN/2384(CA)