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.