Messrs Wiedemann And Walters (Nig.) Ltd V Mojibola Oluwa And Ors (1968)

LawGlobal-Hub Lead Judgment Report

LEWIS, J.S.C.

In suit No. LD/383/65 in the Lagos High Court Sowemino J., on the 31st day of March, 1966 gave judgment with costs for the plaintiff against the second defendant in terms that ‘the articles two EBA concrete miters and one steel cutter be returned on or before the 4th of April, 1966 to the plaintiff by the second defendant and general damages of £300 against the second defendant company,” and at the same time dismissed the plaintiff’s claim against the first and third defendants. Against that decision the second defendant has appealed solely in respect of the award of £300 general damages, as the goods detailed were returned immediately after the judgment

The plaintiff’s writ was in the following terms:-

“The defendants detained from the plaintiffs the plaintiffs’ goods and chattels that is to say:

.2 EBA Concrete Miters

.1 steel Cutter

The plaintiffs claim a return of the said goods and chattels or their value, and £43 per week from the 21st day of June 1965 for their detention and use. And an injunction to restrain the defendants, their agents/or and servants from continuing to use the above-named plaintiffs goods and chattels.”

and after setting out the facts on which he relied in this statement of claim then concluded with the words “whereof the plaintiff’s claim as per writ of summons.”

Now the point taken by Mr. Alokolaro for the appellant on this appeal is that the plaintiff’s claim was in detinue for the return of the goods, 2 EBA concrete miters and one steel cutter, or their value and that he had not specifically claimed dam-ages as his writ read “ and £43 per week from the 21st day of June, 1965 for their detention and use.” As damages were not as such claimed counsel submitted that the court must Interpret these words as a claim for special damages and on that basis he then submitted that the learned trial judge found they had not been proved when he said:-

“With regard to the claim for £43 for the use of the machinery by the third defendant company, although it was not so specified, no evidence has been led as to how the plaintiff arrived at the amount of £43 rent per week. If the claim for use is a claim in general damages for wrongful detention by the second defendant that would have been understandable. But I take it in this case that the use by the third defendant of the concrete mixers and the steel cutter was made possible by the second defendant company and they must be held responsible for any claim which I would regard as general damages for the tort of wrongful detention.”

In his submission therefore as the claim was limited to special damages and had failed the learned trial judge was wrong to go on to deal with and award general damages of £300, when they were not claimed.

The Issue therefore before us is, what was the plaintiff claiming? Mr. Masha for the plaintiff/respondent submitted that the claim was for damages in general. The important point is to decide what the writ as it stood was claiming and to do this one must bear in mind that it was clearly in detinue as the claim was for the re-turn of the goods or their value and this was followed by the words in issue “and £43 per week from the 21st day of June 1965 for their detention and use” Now in General and Finance Facilities Ltd. v. Cooks Cars (Romiord) Ltd. (1963) 1 WLR. 644 Diplock L.J. (as he then was) at page 650 set out the three different forms that a judgment in an action in detinue may take and in that case Pearson LJ. (as he then was) at page 647 said:-

“Plaintiffs’ counsel sought to attack the assessment mainly on the following grounds: .. (2) that the assessment of the damages should have included a reasonable hiring rent for the crane on the ground that the defendants had made use of it after the demand and refusal in May, 1961… (Ground (2) fails, be-cause there was, so far as appears from the notes, no evidence that the defendants had made any use of the crane after May, 1961, or indeed at any time.. It is not unfair to bear in mind that the plaintiffs in their statement of claim had claimed £2,000 for the value of the crane and £1,320 for loss of hire. On the evidence that was an absurd claim.”

It seems clear to us therefore that in the context of detinue what the plaintiff here was claiming, after the refusal of the second defendant to allow the goods detained to be returned, was damages by way of consequential loss for the use of the goods, as use of the goods by the third defendant with the authority of the second defendant was not disputed in the evidence, and this was put forward by the plaintiff on the basis of a rental of £43 per week. It was not suggested that there was an agreed contract to pay that amount and the plaintiff called no evidence to show how such figure was arrived at but in our view it was, though it ought of course to have been stated in the writ, in fact a claim for damages.

In Ezeani v. Ejidike [1964] 1 All N.L.R. 402 this court at page 405 commented on the form that claims for general damages often took and indicated that in conversation apart from the market value of the goods there may be damages for con-sequential loss if not too remote. The basis of assessment of damages in detinue is however in our view helpfully set out in Strand Electric AND Engineering Co. Ltd. v. Brisford Entertainments Ltd. (1952) 2 O.B. 246 where Denning L. J. (as he then was) said at page 254.

“If a wrongdoer has made use of goods for his own purposes, then he must pay a reasonable hire for them, even though the owner has in fact suffered no loss. It may be that the owner would not have used the goods himself, or that he had a substitute readily available, which he used without extra cost to himself.

Nevertheless the owner is entitled to a reasonable hire. If the wrong-doer had asked the owner for permission to use the goods, the owner would be entitled to ask for a reasonable remuneration as the price of his permission. The wrongdoer cannot be better off because he did not ask permission. He cannot be better off by doing wrong than he would be by doing right. He must therefore pay a reasonable hire. This will cover, of course, the wear and tear which is ordinarily included in a hiring charge.; but for any further damage the wrongdoer must pay extra. I do not mean to suggest that an owner who has suffered greater loss will not be able to recover ft. Suppose that a man used a car in his business, and owing to its detention he had to hire a substitute at an increased cost he would clearly be able to recover the cost of the substitute. In such cases the plaintiff recovers his actual loss. 1 am not concerned with those cases.

I am here concerned with the cases where the owner has in fact suffered no loss, or less loss than is represented by a hiring charge. In such cases if the wrongdoer has in fact used the goods he must pay a reasonable hire for them. Nor do I mean to suggest that a wrongdoer who has merely detained the goods and not used them would have to pay a hiring charge. The damages for detention recoverable against a carrier or a warehouseman have never been measured by a hiring charge. They are measured by the loss actually sustained by the plaintiff, subject, of course, to questions of remoteness. They are like cases of Injury to a ship or a car by negligence. If it is put out of action during repair the wrong-doer is only liable for the loss suffered by the plaintiff. (See the principles set out in The Susquehanna (1926) A.C. 655, and many other cases).

The claim for a hiring charge is therefore not based on the loss to the plaintiff, but on the fact that the defendant has used the goods for his own purposes. It is an action against him because he has had the benefit of the goods. It resembles, therefore, an action for restitution rather than an action of tort. But it is unnecessary to place it into any formal category. The plaintiffs are entitled to a hiring charge for the period of detention, and that is all that matters.”

This being so it follows in our view that notwithstanding that the plaintiff has claimed £43 per week for the use of the goods his claim does not stand or fall on proof of that amount but it is the duty of the court in assessing the damages he has suffered to determine what is a reasonable amount of hire for the goods for the period concerned.

The value of the goods here was given in evidence as £700 for each EBA concrete mixer and £63 for the steel cutter, that is, £1,463 in toto, yet for these three articles the plaintiff was claiming £43 per week for their use which over the period of 9 months that they were detained and used would have come to over £1,600 – more than the value of the goods themselves. We can but echo the words of Pearson L.J. in General and Finance Facilities Ltd. v. Cooks Cars (Romford) Ltd. (supra) when he said “on the evidence that-was an absurd claim. The learned trial judge assessed damages which he called general, in the sum of £300 and this was not shown to be an unreasonable assessment, and in our judgment he was entitled to assess and award damages for the use permitted by the second defendant of the detained articles.

We do not consider that these are special damages as special damages would have to be something over and above the reasonably assessed figure for the use of the goods and such extra amount was not calmed. Indeed in the context of detinue and damages for the use of the detained goods, we think it is misleading to seek to apply the te

Other Citation: (1968) LCN/1566(SC)