Ojini Vs Ogo Oluwa Motors Nigeria Ltd (1998)

LAWGLOBAL HUB Lead Judgment Report

E.O.OGWUEGBU, JSC.

This appeal is against the decision of the Court of Appeal, Enugu Division delivered on 8th December, 1989 reducing to N15,000.00 the sum of N64,000.00 special damages awarded in favour of the plaintiff by the learned trial Judge. The facts of the case are that the plaintiff who was a transporter bought on hire purchase, a Peugeot Saloon Car Registration No.IM 6593 L of Doherty Motors & Co. (Nig.) The plaintiff paid a deposit of N3,000.00 with promise to liquidate the balance of N6,600.00 in ten equal monthly instalments. The plaintiff used the car as a taxi and made a daily income of N80.00. The instalments were paid as and when due and the last instalment being on 18th August, 1980. On or about 25th August, 1980, at Ediba in the Cross River State, the defendant seized and took away the said car. By reason of the said seizure, the plaintiff alleged that he was unable to carry on his taxi business and was in consequence, deprived of the profits of N80.00 per day for 800 days. The plaintiff reported the seizure to the police whereupon Titus Ogbara was tried and convicted by an Ugep Chief Magistrate’s Court in charge No. MUG/403C/80. The court ordered that the car be returned to the plaintiff. The defendant surrendered the motor-car to the plaintiff on 2nd November, 1992 when confronted with the order of the court. He claimed the sum of N64,000.00 “being general and/or special damages for trespass to goods and or conversion” for the period 25:8:80 to 2:11:82. The defendant, Ogo Oluwa Motors (Nig.) Ltd. denied the plaintiff’s claim. It was its case that about 10:12:79, it sold on hire purchase the very same motor vehicle to one Femi Ogbara who paid a deposit of N3,000.00 with an undertaking to liquidate the balance by monthly instalments of N630.00. Femi Ogbara paid only two instalments and in August, 1980 the defendant seized the car through its agents. At the time of seizure, the sum of N5,270.00 was outstanding. Following a court order, he returned the vehicle to the plaintiff. He counter-claimed the value of the said motor vehicle as at November, 1982 and general damages. After reviewing the evidence and the applicable law, the learned trial Judge awarded N64,000.00 as claimed and dismissed the defendant’s counter-claim. He stated: “In the event, there will be judgment for special damages for the detention and conversion of the plainfff’s car from 25-8-80 to 21-11–82. The plaintiff’s claim therefore succeeds and there will be judgment for the plaintiff in the sum of N64,000.00 with costs of N400 in his favour. In the event, the defence and counter-claim of the defendants are hereby dismissed.” Aggrieved by the decision, the defendant appealed to the Court of Appeal, Enugu Division. As stated above, the court below allowed the appeal, set aside the award of N64,000.000 as damages and substituted an award of N15,000.00.

Dissatisfied with the decision of the Court of Appeal, the plaintiff appealed to this court. Briefs of argument were filed by the plaintiff and the defendant who will be referred to as appellant and respondent respectively in this judgment. The appellant formulated three issues for determination in the appeal. The issues read: “1. Was the plaintiff also entitled to succeed in conversion? 2. Was the Court of Appeal justified in interfering with the damages awarded by the trial Judge without showing that the Judge acted on wrong principle? 3. In interfering with the damages awarded by substituting the sum of N15,000.00 it assessed for N64,000.00 awarded by the vial court, whether the Court of Appeal applied the wrong principle?” On its own part, the respondent urged the court to determine the following questions: “(i) Was the Court of Appeal right to hold that the appellant cannot sue the respondent in conversion? (ii) Assuming but without conceding that the appellant could sue in conversion what is the measure of damages? (iii) Was the Court of Appeal right to interfere with the trial court’s award of N64,000.00 I will determine this appeal on the issues identified by the appellant as they adequately cover the three grounds of appeal filed by him.

On the first issue for determination, it was argued in the appellant’s brief that if a person is entitled to possession of a chattel or has a right to the immediate possession thereof, it is conversion to take it out of such possession with the intention to exercise a permanent or temporary control or dominion over it and that once conversion has taken place, it is not erased because the defendant returned the chattel or that the plaintiff otherwise resumed possession of it before instituting an action. We were urged to hold that the court below was in error when it held that the appellant could not sue in conversion after recovering the vehicle from the respondent. The cases of Fisher v. Princes (1792) 3 Burr. 1363 and Solloway v. McLaughlin (1938) AC 247 at 258 – 259 were referred to us. On the second issue, it was submitted that in all cases of trespass to goods, special damages may be recovered if they flow directly from due wrongful acts and are claimed. It was further submitted that the appellant pleaded particulars of special damages in paragraphs 5 and 8 of the statement of claim, led evidence in proof of the special damages claimed and tendered Exhibit 10 to prove that the appellant earned N80.00 daily from the time he acquired possession of the vehicle until it was seized by the respondent. Learned counsel for the appellant further submitted in the brief that the court below agreed that the award of special damages by the trial court was based on evidence not challenged by the respondent who had the opportunity of doing so and that the court below did not identify any wrong principle of law upon which the trial court acted or that the award was so extravagant before interfering with it. We were referred to Strand Electric and Engineering Co. Ltd. v. Brisford Entertainments Ltd. (1952) 1 All ER 796, Onaga v. Micho and Co. (1961) 2 SCNLR 101; (1961) 1 All NLR 324 at 328, Ekpe v. Fagberni (1978) NSCC 211 at 215 as well as Mayne and McGregor on Damages 14th ed. pare. 1321 page 795. On the third issue, it was submitted on behalf of the appellant that by awarding the sum of N15,000.00 as damages for trespass, the court below would have readily confirmed the N64,000.00 awarded by the trial court if the court below had considered the detention and conversion of the vehicle for eight hundred days during which time the respondent made use of it. It was further submitted that the court below did not appreciate the principles enunciated in Weidemann & Walters (Nig.) Ltd. v. Oluwa: In Re: Intra-Motors (Nig.) Ltd. (1968) 1 All NLR 383.

We were urged to hold that the Court of Appeal applied the wrong principle in determining the amount it awarded to the appellant. It was the contention of the respondent’s counsel that at the time the appellant commenced his action, the latter having regained possession of the vehicle he could not sue in conversion and that the court below was right in so holding. He referred to the case of Kosile v. Folarin (1989) 4 SC (Pt.I) 150, (1989) 3 NWLR (Pt. 107) 1 at page 10. On interference of the Court of Appeal with damages awarded by the learned trial Judge, it was submitted on behalf of the respondent that before an appellate court can properly intervene, it must be satisfied either that the Judge in assessing the damages applied a wrong principle of law such as taking into account some irrelevant factors; or leaving out of account some relevant factor; or that the amount awarded is either so ridiculously low or high that it must have been a wholly erroneous estimate of the damages. He cited and relied on the following cases: Obere v. Board of Management of Eku Baptist Hospital (1978) 6 – 7 SC 15 at 24, Flint v. Lovell (1935) 1 KB 354 at page 360, Sodipo and Co. Ltd. v. Daily Times (Nig.) Ltd. (1972) 11 SC 69 at 79, Onaga v. Micho supra, Agaba v. Otobusin (1961) 2 SCNLR 13 (1961)1 All NLR 299 at 300 and Uwa Printers (Nig.) Ltd. v. Investments Trust Co. Ltd. (1988) 12 SC (Pt.II) 31,(1988) 5 NWLR (Pt.92) 110 at 218. It was further submitted that the case of Weidemann & Walters (Nig.) Ltd. v. Oluwa: In Re Intra Motors (Nig.) Ltd. & Or. supra is apposite. We were urged to dismiss the appeal. The two complaints of the appellant are in respect of the finding of the court below that the appellant is not entitled to recover in conversion after regaining possession of the vehicle and the reduction it made in the amount of damages awarded by the learned trial Judge. The learned trial Judge awarded the sum of N64,000.00 as special damages for the detention and conversion of plaintiff s car. (Italics is for emphasis). He concluded his judgment as follows: “In the event, there will be judgment for special damages for the detention and conversion of the plaintiff’s car from 25/8/80 to 2/8/82. The plaintiff’s claim therefore succeeds and there will be judgment for the plaintiff in the sum of N64,000.00 with costs of N400 in his favour. The Court of Appeal came to the conclusion that the appellant could not have sued in conversion or in detinue. It held: “The action was commenced on 7th December, 1982 when the writ of summons was issued. From the above extracts of the plaintiffs statement of claim, the plaintiff made it clear that he had had back in his possession the vehicle in dispute since 2/11/82. So, when he commenced his action on 7/12/82, he could not be suing for conversion per se. And also the claim could not be one in detinue since a claim in detinue is primarily for the return of the chattel detained against the will of the person entitled to its possession. The plaintiff could therefore not have been suing for the return of a vehicle which he had in his possession at the time of the commencement of the action. This looks to me like an action for damages arising in trespass.” The court below was right in its conclusion that the plaintiff’s cause of action was in trespass and not in conversion or detinue. This is so because the cause of action in conversion, accrues on the date of the conversion and it is based on an unequivocal act of ownership by a defendant of goods of the plaintiff without any authority or right in that behalf, for example, an act such as acquiring, dealing with the rights of an owner as distinct from the equivocal acts of one who is entrusted with goods. See Beaman v. A.R.T.S. Ltd. (1948) 2 K.B. 89 and Fauldes v. Wilougby (1841) 8 M & W 544 at 548; 151 ER 1153. In order to constitute a conversion, it is necessary either that the party taking the goods should intend some use to be made of them by himself or by those for whom he acts, or that, owing to his act, the goods are destroyed or consumed to the prejudice of the lawful owner Trespass, unlike conversion and detinue, is actionable per se, that is, without any proof of damage and it can be committed without any denial of or interference with title but it lies only in favour of a plaintiff who has possession as the appellant in this appeal or at the suit of a person having the immediate right to possession. The sole question to be determined is whether the defendant had directly interfered with the plaintiff’s possession. In a claim for conversion, only the value of the chattel at the date of conversion maybe claimed. Special damages may also be claimed but it does not include a claim for loss of ordinary earnings after the date of conversion. See Darefooh v. Karam (1941) 7 WACA 113 and Stitch v. Attorney- General of the Federation of Nigeria & Ors. (1986) 5 NWLR (Pt. 46) 1007, (1986) 12 SC 373 at 421 – 424 and 447 – 448. The appellant could not therefore have recovered the ordinary earnings of N80.00 per day in an action for conversion and he could not have done so in detinue. The appellant in paragraph 8 of his statement of claim, claimed the sum of N64,000.00 being general and/or special damages for trespass to goods thus: “8. And the plaintiff claims the sum of N64,000.00 (Sixty Four Thousand Naira) being general and/or special damages for trespass to goods and/or conversion as per particulars set out in paragraph 5 above, that is profits or earnings of the said vehicle at N80.00 per day for 800 days. And paragraph 5 of the said statement of claim reads: “5. The plaintiff in consequence lost the value of the said taxi car for the period from 25/8180 to 2/11/82 and was unable to carry on his said business and was deprived of the profits of N80.00 per day for 800 days which he would otherwise have made, and he has thereby suffered loss and damage. On the authorities, the appellant could not have recovered these ordinary earnings in an action for conversion. The court below was fully justified in awarding damages for trespass to his vehicle which was in his possession at the time he instituted the action. He even founded his action in trespass, the addition of the words “and/or conversion” in paragraph 8 of the statement of claim notwithstanding. The next complaint of the appellant is the interference of the court below with the damages awarded by the learned trial Judge, the court below said: “But as I had said earlier, the damages awarded are in my view excessive. I should in this case award such damages as (sic) do justice to both parties. The plaintiff respondent if indeed he made N80.00 per day on the car would have earned N19,200.00 in the first 8 months when he had the vehicle before it was seized. The car had been purchased for only N9,600.00. So that the plaintiff would have more than doubled his out lay on the car within those eight months. Even now he still has the vehicle with him. It seem to me that, given the fact that the use of the expression “special damage” is inappropriate in a case as this, I think the lower court should have used the evidence as a guide in determining the damages to be awarded. It is obviously absurd to award N64,000.00 on the facts and circumstances. I endorse the above reasonings of the court below. The appellant’s claim of N80.00 per day for 800 days does not fall or stand by his proof of that amount. It is the duty of the court in assessing the damages suffered by the appellant in this particular case, to determine what is reasonable earnings of a vehicle of that nature for the period concerned taking into account the wear and tear of the vehicle and the fact that it would have undergone routine servicing and even major repairs during the period coupled with the fact that the commercial driver might have fallen sick and unable to attend his duties on some days. For any court to award N64,000.00 for 800 days at the rate of N80.00 per day on the facts and circumstances of this case, was unreasonable and absurd. See Weidemann & Walters (Nig.)Ltd. v. Oluwa Intra Motors (Nig.)Ltd. & Or. (supra) and General & Finance Facilities Ltd. v. Cooks Cars (Romford) Ltd. (1963) 1 WLR 644. An appellate court is not justified in substituting a figure of its own for that awarded by the lower court merely because it would have awarded a different figure if it had tried the case at first instance. Before it can properly intervene, it must be satisfied either that the Judge, in assessing the damages, applied a wrong principle of law such as taking into account some irrelevant factor or leaving out of account some relevant factor, or that the amount awarded is either so ridiculously low or so ridiculously high that it must have been a wholly erroneous estimate of the damage. See Flint v. Lovell (1935) KB 354 at 360, Sodipo & Co. Ltd. v. The Daily Times of Nigeria Ltd. (1972) 11 SC 69 at 77; Uwa Printers Nig. Ltd. v. Investment Trust Co. Ltd. (1988)12 SC. (Pt. II) 31; (1988) 5 NWLR (Pt.92)110 (1988) 19 NSCC (Pt.3) 195 at 205, Samuel Obere v. The Board of Management Eku Baptist Hospital (1978) 6-7 SC 15 at 22- 23 and Agaba v. Otubusin (1961) 2 SCNLR 13 (1961) 1 All NLR 299 at 300. If the submissions of the learned appellant’s counsel is upheld, it means, as rightly reasoned by the court below, that for a car purchased at N9,000.00 the plaintiff/appellant would within three years have earned the sum of N34,200.00 and still kept the vehicle. There was therefore every justification in disturbing the award made by the learned trial judge. In the result, I dismiss the appeal and affirm the judgment of the Court of Appeal dated 8th December, 1989. I award the respondent N10,000.00 costs in this appeal.

SC.158/1991