P. I. P. C. Security Limited V. Mr. George X. Vlachos & Anor (2007)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.C.A.

The plaintiff (now the 1st respondent) is a shareholder of the Guiness Nigeria Plc. He gave to the defendant (now the appellant), who is a stock broker, two share certificates of 932 and 298 share units respectively with the instruction to dispose same at the Stock Exchange Market for commission at the prevailing market value. That was on the 7th day of August, 1998, by exhibit B, the market value of the Guiness Nigeria Plc shares appreciated to N55 per share as at April, 2003. By October, 2003, the value was N134 per share, according to exhibit C. By exhibits B and C, it means that if the 1230 shares were sold in April, 2003, the proceeds thereof would be N67,650.00, whereas if they were sold in October, 2003 the proceeds thereof would be N 164,820.00 respectively sold. Exhibit A is the transcript receipt the appellant gave to the 1st respondent acknowledging the receipt of his share certificates.

When the appellant took possession of the shares certificates from the 1st respondent, it sent same to the Union Bank of Nigeria Plc, the Registrar, who was the 3rd party before the lower court (now the 2nd respondent), for verification of the 1st respondent’s signature.

The 2nd respondent adjudged irregular the signature of the 1st respondent and directed, through the appellant, that the 1st respondent should come over to Lagos for rectification of his signature. The 1st respondent expressed his inability to travel to Lagos from Jos due to financial difficulties. This is contained in exhibit E. The 1st respondent approached his bankers, the Savannah Bank of Nigeria Plc who confirmed his signature. This did not satisfy the 2nd respondent who insisted that the 1st respondent must be physically present in Lagos for the purpose of the verification of his signature.

1st respondent did not travel to Lagos and when all efforts to convince the 2nd respondent of the authenticity of his signature failed, he demanded from the appellant the return of his share certificates. This was not to be.

The situation now was that the appellant could not dispose of the 1st respondent’s shares as mandated by the latter and the share certificates could not be returned to the owner. As soon as the 1st respondent demanded for the return of his share certificates, events started to unfold. It became apparent that the share certificates were lost. The appellant and the 2nd respondent started trading blames between themselves as to who was responsible for the loss. While the 2nd respondent said it had sent the certificates to the 1st respondent through the appellant, the appellant denied the receipt of same. The appellant, however, confessed, via the testimony of DW1, that it did nothing about the matter until the indemnity forms were received from the 2nd respondent for onward transmission to the 1st respondent. The letter by which the indemnity form was sent was dated the 4th day of September, 2000.

The 1st respondent headed to court after waiting for over four years and there was no sign that he would ever recover his share certificates or their value from the appellant with whom he had a contractual agreement for the sale of his shares in Guiness Nigeria Plc. The 1st respondent claimed before the lower court the following reliefs in paragraph 13 of his statement of claim –

“13. Whereupon the plaintiff claims from the defendant:

(a) N67,650.00 being the market value of 1230 units of Guiness Nigeria Plc shares as at April, 2003.

(b) The appreciated value of the said prevailing market rate at Lagos Stock Market as at the date of hearing/determination of the suit.

(c) N500,000.00 being general damages for Inconveniences, mental torture and compensatory losses.

(d) Interest at the rate of 21% on (a) above from 7th August, 1998 to 30th April, 2003 and thereafter 10% per annum till final liquidation.

(e) The cost of this action.”

Through pleadings and evidence, the 1st respondent demonstrated the psychological, mental, financial and emotional agony or trauma, he went through due to failure to get his shares sold or to get back his share certificates. The duplicate share certificates were not issued until the 29th day of January, 2004 and were not made until after the respondent’s testimony in court.

At the trial, the appellant sought and obtained leave of the lower court to join the 2nd respondent as the 3rd party in the case. All efforts by the 2nd respondent to get the 3rd party notice set aside failed.

Three witnesses testified: one for each of the parties and ten exhibits were tendered and admitted. At the close of the case for the 2nd respondent, both the appellant and 1st respondent filed written addresses through their respective counsel. Counsel for the 2nd respondent made oral submissions in response to the two written addresses.

In his judgment, the learned trial Judge found for the 1st respondent holding that both the appellant and the 2nd respondent were jointly and severally liable in negligence. He awarded N500,000.00 damages as general damages. He also ordered for the return to the 1st respondent, his share certificates or their prevailing market value.

It is against that judgment that this appeal has been brought by the appellant. Eleven (11) grounds of appeal were filed and sunned their particulars, they are hereby reproduced: –

Ground One

The learned trial Judge erred in law when having held that:

“In the same vein, when 3rd party (Registrar) found that the plaintiff’s signature on the share certificates were irregular, it was under a legal duty to return the original certificates at the earliest opportunity to the holder through the Stock Broker. The failure to do so, for four years in my view, attracts liability.”

Ground Two

The learned trial Judge erred in law when having stated that plaintiff’s claim is not based on negligence he held as follows:”

In the instant case, there was negligence on the part of both defendant and 3rd party. The 3rd party should have returned the share certificate to the plaintiff through the defendant due to irregularity in his signature. Since he refused to come to Lagos … Both parties were liable in negligence.”

And thereby occasioned a miscarriage of Justice.

Ground Three

The learned trial Judge misdirected himself in law, when having rightly held that:

“No dispatch book was shown/exhibited showing that the defendant collected the certificates from the Union Bank and no evidence to show that the defendant ever sent its staff to collect them.”

He proceeded to find that:

“Both parties shift the blame into one another so much so that it is difficult to tell who is telling the truth. I therefore find both of them contributed.”

Thereby failing in its duty to adjudge liability on a party, on the basis of a definite finding, thus occasioning a miscarriage.

Ground Four

The learned trial Judge erred in law when he held that:

“The burden of proving contributory negligence in the plaintiff rests on the defendants.”

Ground Five

The learned trial Judge erred in law, when he held as follows:

” … I accordingly award the sum of N500,000 (Five hundred thousand Naira) only as general damages against the defendant and the 3rd party jointly and severally.”

And thereby occasioned a miscarriage of Justice.

Ground Six

The learned trial Judge erred in law, when he found and ordered that:

‘The plaintiff is entitled to the return forthwith of his share certificates for the 1230 units of shares in Guinness Nigeria Plc, or its value at the current stock market.

Because of the long period of delay involved, it is ordered that the shares certificates be returned within a period of 21 days (twenty-one) from the date of delivering of this judgment.”

And thereby occasioned a miscarriage of Justice.

Ground Seven

The learned trial Judge misdirected himself on the facts, when he found that:

“The plaintiff’s inability to travel to Lagos for verification of his signature did not cause the delay in the return of or loss of his certificates.”

And thereby occasioned a miscarriage of Justice.

Ground Eight

The learned trial Judge misdirected himself in law, when he held failed to place any reliance on exhibits F1 & F2, on the ground that they were inadmissible because they were tendered when the

suit was pending, and thereby occasioned a miscarriage of Justice.

Ground Nine

The learned trial Judge misdirected himself on the facts, when he held that the duplicate copies of the share certificates sent to the plaintiff were validly rejected, because they were defective, and thereby occasioned a miscarriage of Justice.

Ground Ten

The learned trial Judge erred in law in awarding the sum of N500,000.00(Five hundred thousand Naira) only against the defendant and 3rd party, contrary to the principle for the award of general damages and therefore occasioned a miscarriage of Justice.

Ground Eleven

The trial Judge misdirected himself in law, when he made an award for the value of the plaintiff’s share certificate, as an alternative to the return of the certificates and therefore occasioned a miscarriage of Justice.

Briefs of argument were filed and exchanged. The 1st respondent’s brief was deemed properly filed and served on the 27th day of June, 2006.

In their brief of argument, Messrs S. S. Obade and Okey Akobundu, learned counsel for the appellant distilled three issues for determination in this appeal, namely:-

1. Whether the learned trial Judge was right in adjudging the defendant liable in negligence, when the plaintiff the (sic) never predicated his action on negligence?
2. Whether from the pleadings and the evidence before the trial court, the plaintiff established any wrong against the defendant on account of the transaction leading to the action.
3. Whether the award of damages against the defendant in favour of the plaintiff is justified.

On his own part, Benson A. Igbanoi, Esq., learned counsel for the 1st respondent, identified two issues for determination, namely:-

1. Whether or not the finding of the learned trial Judge that the defendant was liable to the plaintiff in negligence is sustainable.
2. Whether or not the learned trial Judge was right in finding that the non-return of the plaintiff’s 1230 units of shares by the defendant since August, 1998, entitles the plaintiff to damages.

It will be observed that the 2nd respondent did not file brief, neither did it put up appearances during the pendency of this appeal.

In this judgment, I will treat issues No. 1 identified by the appellant along with No.1 identified by the 1st respondent. Issue No.3 in the appellant’s brief will be treated along with issue No.2 of the 1st respondent’s brief. The issue No.2 of the appellant’s brief will be treated separately as No.2.

Issue No.1 of the appellant’s and 1st respondent’s briefs: Learned counsel for the appellant submitted that the 1st respondent’s claim before the lower court was basically contractual, especially going by the formulated claims in paragraph 13 thereof.

It was submitted that because the 1st respondent did not plead negligence, neither the appellant nor the 2nd respondent joined issues with him on the point of negligence and no evidence was led on the issue. It was further submitted that failure to return to the 1st respondent his share certificates could not be attributed to any negligence on the part of the appellant and the learned trial Judge having identified the 2nd respondent as being responsible for the delay in returning the certificates should have found that party liable notwithstanding the absence of privity between the 1st and 2nd respondents. He relied on I.M.N. Ltd. v. Nwachukwu (2004) 13 NWLR (Pt.891) 543; Abusomwan v. Merchantile Bank of Nigeria Ltd. (No.2) (1987) NWLR (Pt. 60) 196,208. It was submitted for the appellant that the learned trial Judge should have satisfied himself that the 1st respondent duly pleaded the particulars of negligence in his statement of claim, citing Flash Fixed Odds Ltd. v. Akatugba (2001) 9 NWLR (Pt. 717) 46, (2001) FWLR (Pt. 96) 209.

On his own part, learned counsel for the 1st respondent argued his two issues together. In his brief, he stoutly supported the learned trial Judge’s finding of negligence against both the appellant and the 2nd respondent, submitting that the principle of law is that an appellate court cannot disturb or reject the findings of a trial court on the evidence of witness or evaluation of same unless such findings are perverse. He cited Okochi v. Animkwoi (2003) 18 NWLR (Pt. 851) 1 at 29; Godwin v. C.A.C. (1998) 14 NWLR (Pt. 584) 162; and Ude v. Chimbo (1998) 12 NWLR (Pt. 577) 169. He submitted that there was no perversity in the finding of the lower court and that there is no legal basis for disturbing same. He submitted that the fact that the lower court made use of the principles of negligence has not occasioned a miscarriage of Justice and to hold otherwise would amount to a descent to the inglorious era of mere legal technicalities at the expense of dispensation of substantial Justice. He relied on Labode v. Otubu (2001) 7 NWLR (Pt. 712) 256, 281, and Falobi v. Falobi (1976) 1 NMLR 169.

Now, it is trite law that parties are bound by their own pleadings and parties will not be allowed to set up a case at trial that is at variance with their pleadings. Issues are usually tried on the parties’ pleadings and the parties are bound thereby. See Lawrence Elendu & 5 Ors. v. Felix Ekwoaba & 4 Ors. (1998) 12 NWLR (Pt. 578) 320, 338-339. It follows, therefore, that a trial court is under a duty to decide the case before it on the basis of the pleadings and the evidence placed before it by the parties.

Where a plaintiff’s case is founded on negligence, it must be pleaded and particularised. It is agreed that any breach of duty of care, whether grave or venial, which causes loss, constitutes negligence. See Julius Berger (Nig.) Ltd. v. O. O. Ede (2003) 8 NWLR (Pt. 823) 526, 541-542. But that issue (negligence) must be pleaded and particularised in order for the plaintiff to succeed on it.

A blanket allegation of negligence in the pleading is not sufficient and quite apart from giving explicit evidence of negligence, the plaintiff to succeed, must also show the duty of care owed to him and its breach by the defendant – See Flash Fixed Odds Ltd. v. Akatugba (2001) 9 NWLR (Pt. 717) 46 at 61.

I have taken a careful look at the 1st respondent’s statement of claim. There is nowhere negligence is pleaded or particularised. There is no doubt that the learned trial Judge predicated his findings of negligence against the appellant on the loss or missing of the original share certificates belonging to the 1st respondent. But his findings on this issue is bereft of any pleadings on which to hang it. The 1st respondent’s claim is certainly not based on negligence as found by the lower court.

One would be tempted to know why the learned trial Judge dwelled so much on, and held both the appellant and the 2nd respondent liable for negligence when the 1st respondent’s claim was not grounded in negligence. The answer is not far-fetched. Both counsel for the appellant and for the 2nd respondent had addressed the lower court extensively on negligence as if the whole case was based on it. Each of the two parties was seriously trying to absolve itself of negligence in handling the issue of the return of the share certificates. This must have weighed so much in the mind of the lower court that it now believed that the action was grounded in negligence. By the time it was the turn of learned counsel for the 1st respondent to address the court his submissions on the issue of delay and failure to return to the 1st respondent his share certificate, the mind set was already made up that the action was against the negligence of the appellant and 2nd respondent to return the share certificates. After the judgment, the appellant now finds it convenient to say that the action was not founded on negligence.

Counsel must be conscientious in the performance of their duties.

They owe it a duty to assist the court to arrive at a just decision and they must not set out to confuse the court in order to satisfy their clients for a paltry sum. Unless lawyers perform their duties by the dictate of their calling and conscience, the public (layman’s) perception of lawyers as liars will never change. I must state, and with all emphasis, that lawyers are not liars, but honourable gentlemen who are trained to assist litigants and the court. Their first duty is to the court as ministers in the temple of Justice.

The lower court with respect, wrongly identified the cause of action as negligence, but the appellant has brought up the issue on appeal. By section 16 of the Court of Appeal Act, this court is in good position as the lower court to make the proper finding where the finding by the lower court is wrong or perverse. The finding of the lower court in this respect was wrong.

To this end, the issue NO.1 by the parties hereto is resolved in the negative. The finding by the learned trial Judge that the appellant was liable to the 1st respondent in negligence is wrong and cannot be sustained.

Issue No. Two

The issue here is whether from pleadings and the evidence, the 1st respondent established any wrong against the appellant on account of the transaction leading to this action.

It is the submission of learned counsel for the appellant that the 1st respondent’s action was not properly constituted as he did not make out his claim on the basis of contract or tort. It was submitted that failure to dispose of the shares was due to the irregularity in the signature of the 1st respondent coupled with his refusal to travel to Lagos in order to rectify his signature and his refusal to complete and sign the indemnity form. It was further submitted for the appellant that without the signature being verified by the registrar (2nd respondent), appellant could not sell the shares. It was also submitted that there is no document evidencing a demand for the return of the

share certificates and that there is no evidence that the 1st respondent formally terminated or determined the mandate to dispose of the shares. The appellant cited and relied on Summit Financial Co. Ltd. v. Iron Baba and Sons Ltd. (2003) 17 NWLR (Pt. 848) 89 at 117-118, in submitting that it has acted in accordance with the dictate of the stock brokerage business and the appellant is not under any obligation to seek the 2nd respondent to return the share certificates. As to who is liable for the failure to return the certificates, learned counsel for appellant submitted that the 2nd respondent was exclusively liable for the failure.

This submission did not take cognizance of paragraphs 6 and 7 of the statement of claim which was the very basis for bringing the action and the foundation for the reliefs on paragraph 13 thereof. Learned counsel for the 1st respondent, as quoted in the appellant’s brief (page 7), emphatically stated the 1st respondent’s case thus:

“I submit that I am on safe grounds & say that the case before the court under this issue is by no means a case of DELAYED PERFORMANCE but rather, it consist not in failure to sell but in failure to return.”

(Capitals supplied but italics are mine).

The rules of pleadings are that specific allegation of facts in a statement of claim must be specifically denied in the statement of defence, otherwise, the same is taken as not denied and it requires no further proof by evidence. I am not unmindful of the authority in summit (supra) but the facts are not the same with the instant case.

In the instant case, DW2 who testified for the Registrar, 2nd respondent herein, stated to the effect that –

“Where signature verification is not possible the holder is entitle to his legal tender.”

This same witness had testified earlier that –

“a share certificate is a legal tender which carries with it money value.”

This witness confirmed that he got to know about the case in the lower coult in November, 2003 and that exhibits F1 and F2 came from their (2nd respondent’s) office and also that the two exhibits were issued in 2004, signed by their company secretary.

Apart from the features enumerated here above, another feature distinguishing the instant case from summit (supra) is the evidence contained in exhibits G and H which gave rise to the cause of action in this case. From the evidence proffered by both the appellant and the 2nd respondent, it is apparent that the share certificates have got lost between the two of them.

In the premises, the only logical option left for the 1st respondent was to ask for the return of his share certificates or their value. That was exactly what the 1st respondent has done in this case. The 1st respondent did the correct thing by asking for the return of his share certificates. There is no question as to the fact the 1st respondent was bound by the steps taken by the appellant in forwarding the share certificates to the 2nd respondent for signature verification.

The appellant has acted within the scope of his business of brokerage and as the agent of the 1st respondent but when it was apparent that due to problem in verifying the signature of his principal and when the latter had requested for the return of his share certificates, he was obliged to get them returned. The appellant has failed in that respect, hence the action culminating in this appeal.

From the pleadings and the evidence, the wrong the plaintiff established against the appellant was that of failure to return his share certificates on demand to do so and that is the tort of detinue as suggested by the appellant herself in her brief.

There is nothing in the statement of defence denying the allegation of facts contained in paragraphs 6 and 7 of the statement of claim. Where parties have joined issues on pleadings, each party is required to prove his averments which, have not been admitted by offering evidence or eliciting evidence from the opponent through cross-examination. For failure to join issue or to adequately join issue with the 1st respondent on his paragraphs 6 and 7 of his statement of claim, in her statement of defence, the appellant is deemed to have admitted those averments. Therefore, on state of the pleadings, the averments in paragraphs 6 and 7 of the statement of claim cease to be in controversy, regard being had to the appellant’s failure to specifically deny those averments. It is trite that facts admitted require no evidential proof. In – Honika Sawmill (Nig.) Ltd. v. Mary Okojie Hoff (1994) 2 NWLR (Pt. 326) 252, (1994) 2 SCNJ 86, 98; and Ohmiami Brick & Stone (Nig.) Ltd. v. African Continental Bank Ltd. (1992) 3 NWLR (Pt. 229) 260 at 293-294; 301 & 312 it was held, inter alia, that:-

“Where facts are admitted, no evidence is admissible in proof of those facts. In the circumstances of this case, in so far as the appellant failed to reply to the respondent’s averments, the respondent patently bears no burden,”

In paragraph 4 of the statement of defence, the appellant did not join issue or did not adequately join issue with the 1st respondent on the issue of demand for the return of his share certificates as

pleaded in paragraphs 6 and 7 of the statement of claim.

Learned counsel for the appellant has raised the issue that the 1st respondent is not claiming for the return of his share certificates but for their value. He suggested that by this, the claim cannot be in detinue. With respect, if the 1st respondent insists on the return of his original share certificates, then he would be the most unreasonable person on the earth. Both the appellant and the 2nd respondent have convincingly demonstrated before the lower court that it is no longer possible to return the original share certificates to the 1st respondent because they have got lost between the appellant and the 2nd respondent. The only reasonable course open to the the respondent is to ask for their value as he has done in this case.

In an action for detinue, the gist of the action is the unlawful detention of the plaintiff’s chattel which he has an immediate right to possess after the plaintiff has demanded its return. It has been suggested by learned counsel for the appellant that there is no document in evidence showing that the 1st respondent ever made a demand for the return of his share certificates. Let me state that there is no law stating that to sustain an action in detinue, the plaintiff must prove that he made a demand in writing. It is sufficient to state in court that a demand was made and that the defendant refused to return the chattel. Once that evidence is given, it is for the defendant to refute that any demand was ever made by the plaintiff. It is when that is done by the defendant that the issue of whether a demand was made orally or in writing and a proof of its delivery will come to fore. In the instant case, the appellant admitted both in its pleadings and oral sworn testimony in court that the 1st respondent had demanded for the return of his share certificates, In G. S. Pascutto v. Adecentro (Nig.) Ltd. (1997) 11 NWLR (Pt. 529) 467 at 488, the Supreme Court held that –

“Where evidence given by a party to any proceedings was not challenged by the other party who had opportunity to do so, it is always open to court seized of the matter to act on such unchallenged evidence before it.”

The appellant had the opportunity in its pleadings and in the open court, either during the cross-examination of the 1st respondent and through the evidence of its own witness, to deny that a demand for the return of the share certificates was ever made by the 1st respondent. There was no such denial.

Instead, the appellant was eager to prove, albeit unsuccessfully, that upon a demand being made to it by the 1st respondent for the return of the share certificates, it in turn, made a demand for their return from the 2nd respondent. Exhibit H was tendered for that purpose. exhibit H was made on the 2nd day of June, 2003 in purported response to exhibit G which was made on the 4th day of September, 2000. It is noteworthy to know that exhibit H was made on the 2nd day of June, 2003; some three days before the 1st respondent testified in the lower court; almost three years after exhibit was made; and some two months after the action was instituted.

The sum total of all these is that the 1st respondent has established against the appellant a case of detinue. The answer to issue No.2 is, therefore, resolved in the positive.

Issue No. three of the appellant’s brief and issue No.2 of the 1st respondent’s brief.

On this issue, learned counsel for the appellant submitted that both the appellant and the 2nd respondent denied the 1st respondent’s claim of N500,000.00 as general damages in their respective statements of defence. He submitted that the evidence by the 1st respondent of mental and physical torture which the trial court found not to have been controverted should have been supported by medical evidence. He cited – Hanseatic Int’l Ltd. v. Usang (2002) 13 NWLR (Pt.784) 376 at 412 – in support of his submission. He further submitted that the 1st respondent is obliged to adduce credible evidence, capable of belief in order for the requirement of minimal proof to have been established, as the defendant is not bound to call evidence. He relied in this behalf on Health Care Prod (Nig.) Ltd. v. Bazza (2004) 3 NWLR (Pt. 861) 582, 605 – 606. He also cited the case of – UBN Plc. v. Ntuk (2003) 6 NWLR (Pt. 845) 183, 212 in submitting that the award of N500,000.00 as general damages is contrary to the principle for award. He further submitted that the trial Judge’s award of N500,000.00 as general damages cannot be justified having not determined first whether the action before him was predicated on contract or tort. He relied on I.M.N. Ltd. v. Nwachukwu (2004) 13 NWLR (Pt. 891) 543 at 566 citing the dictum of Honourable Musdapher, J.S.C.

Learned counsel for the appellant also submitted that going by the tort of detinue, the 1st respondent’s chattel which form the basis of his claim is the “Share certificates” and that the value of the certificates is N67,650 and since the trial Judge did not find the claim for value sustainable he did not grant it. He further submitted that the award of N500,000.00 only as general damages cannot be said to be the basis of general damages, for detention, for the reason of damages in detinue is the value or cost of its replacement at the time of its discovery. He placed reliance on Guinness (Nig.) Plc v. Nwoke (2000) 15 NWLR (Pt. 689) 135.

He submitted that there is evidence of the return of the 1st respondent’s certificates which he refused to collect. He submitted that exhibits F1 and F2, which he described as the 1st respondent’s certificates were forwarded to him but he rejected them. He submitted further that the exhibits aforesaid were made by Guinness (Nig.) Plc, who are not parties to the proceedings. He referred to section 91(3) of the Evidence Act and submitted that the section contemplates that any statement made by “a person interested at a time when proceedings were pending or anticipated” is inadmissible. He also submitted that exhibits F1 and F2 having been received in evidence, the learned trial Judge was functus officio in respect of the admissibility of the documents.

On the issue of exhibits F1 and F2, learned counsel submitted that nowhere did the 1st respondent testify or plead in his statement of claim the reason for rejecting the two exhibits, as attributable to the fact that his name is wrongly spelt. He submitted that the learned trial Judge descended into the arena of the disputant parties by arriving at the conclusion that the 1st respondent had rejected the duplicate copies of the share certificate because his name was wrongly spelt and that this must have influenced the learned trial Judge in finding that the appellant and the 2nd respondent were liable to the 1st respondent.

On his own part, learned counsel for the 1st respondent submitted that his client had no direct dealings with the 2nd respondent as his client’s share certificates were handed over to the appellant and not to the 2nd respondent. He quoted a portion of exhibit G where the 2nd respondent stated as follows:

“We believe the certificates are in wrong hands since the Broker (the appellant herein) could not account for them.” (The brackets by me).

I have stated earlier in this judgment that exhibit G was made on the 4th day of September, 2000. Learned counsel also referred to the evidence of the 2nd respondent’s witness where he testified in examination-in-chief that:-

“As a result of error in the signature of the shareholder, we returned the certificate to the broker (appellant)”

(bracket by me).

This witness concluded that it was the appellant that lost the share certificate. He further quoted, in extenso, the findings of the learned trial Judge, starting from the 5th line of the last paragraph at page 293 to the 27th line at page 294 and the finding by the learned trial Judge from the last two lines at page 295 to the 8th line at page 296 which go thus: –

“None of the two parties (appellant and 2nd respondent) showed any evidence of return of share certificates to the plaintiff (1st respondent).

“No dispatch book was shown/exhibited showing that the defendants (appellant) collected the certificate from the Union Bank (2nd respondent) and no evidence showing that the defendant ever sent its staff to collect them. It is also not shown how the certificates were transmitted by the defendant to the Union Bank and vice versa. Both parties shift the blame into one another so much so that it is difficult to tell who is telling the truth.” (Brackets are mine).

Learned counsel then submitted that the findings of the learned trial Judge is very sound and well grounded on well established principles in the award of damages and it cannot and should not be faulted. He submitted that the hallowed principle of law is that an appellate court cannot disturb or reject the findings of a trial court on the evidence of witness or evaluation of same unless such findings are perverse, citing in his support the following authorities –

Okochi v. Animkwoi (2003) 18 NWLR (Pt. 851) 1 at 29; Godwin v. C.A.C. (1998) 14 NWLR (Pt. 584) 162; And Ude v. Chimbo (1998) 12 NWLR (Pt. 577) 169.

He submitted that there is no perversity in the findings of the learned trial Judge and there exists no legal basis to interfere with same. He submitted that the delay occasioned by both the appellant and the 2nd respondent caused the 1st respondent damages of both pecuniary and non-pecuniary nature and that the lower court properly took all these relevant matters into consideration; utilize the appropriate parameter; applied the applicable principles of law: correctly evaluated the facts; and thereupon, arrived at the conclusion before proceeding to award appropriate damages. He submitted that the fact that the learned trial Judge also made use of the principle of negligence, has occasioned no miscarriage of Justice. He submitted further, that both the appellant and the 2nd respondent are liable in any event.

Learned counsel for the 1st respondent submitted, regarding exhibits F1 and F2, that they were rightly rejected by the lower court by virtue of section 91(3) of the Evidence Act. He stated that the evidence of the 2nd respondent’s witness in his cross-examination by learned counsel for the appellant to the effect that –

“The procedure for issuance of duplicate certificate is that when the Registrar receives a complement (sic) of loss of certificate from a holder, the Registrar goes through his records to ensure that the certificate is still intact. Thereafter, the duplicate is issued. The certificate issued by the Registrar is sent to the company Secretary for signing and sealing.”

and under cross-examination by learned counsel for the 1st respondent, the same witness for the 2nd respondent testimony to the effect that: –

“I confirm that exhibits F1 and F2 came from us. 1know about the case in this court in November, 2003 and exhibits F1 and F2 was (sic) issued in 2004”

makes it clear that the 2nd respondent who is a party to the proceeding was the maker of exhibits F1 and F2 and not Guinness (Nigeria) Plc as submitted by learned counsel for the appellant. He submitted that the two exhibits were made long after the testimony of the 1st respondent and the issue of them not having been pleaded or having not been mentioned in his testimony does not arise. Learned counsel submitted that the two exhibits are inadmissible in law and the lower court was right in rejecting them at the stage of judgment. He submitted that where evidence is by law inadmissible, is any event, it shall never be acted upon by the court, even where such admission was by consent of the opposite party or where that party failed to take an objection at the proper time. He cited in support, the following authorities: –

1. Abuul v. Benue State University (2003) 16 NWLR (Pt. 845) 59 at 81 – 82 and 87; and
2. Ipinlaiye v. Olukotun (1996) 6 NWLR (Pt. 453) 148 at 167.

For his submission that the lower court applied the correct principles of law in awarding general damages, learned counsel relied on.

1. Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623 at 636
2. Allied Bank (Nig.) Ltd. v. Akubueze (1997) 6 NWLR (Pt. 509) 374 at 407.

He submitted that the order by the lower court for the return of the 1st respondent’s share certificate, with correct spelling of his names, is very much in line with the claim by the appellant against the 2nd respondent. He submitted that issues were properly and fully joined in respect of this head of relief and, therefore, the issue of double compensation and an order for a return and damages for almost six years delay does not arise.

I should state, right way, that in view of the authority of this court in Valentine A. Abuul v. Benue State University (2003) 16 NWLR (Pt. 845) 59 at 81- 82 and 87 and the Supreme Court decision contained in the dictum of Idigbe, J.S.C. (of blessed memory) in Alade v. Olukade (1976) 2 S.C. 183 followed in Abuul (supra), the learned trial Judge acted properly by refusing to act on exhibits F1 and F2. The two exhibits were made by a party interested in, and in anticipation of, the proceedings at the lower court. By exhibit G, made by the appellant on the 2nd day of June, 2003, two months after the initiation of this action, and two or three days before the testimony of the 1st respondent, the 2nd respondent became aware of the pending of this action. It went ahead to make exhibits F1 and F2 on the 29th day of January, 2004. This was definitely made in anticipation of the proceedings before the lower court. The fact that it was made by an interested party, the 2nd respondent, and that it was made during the pendency of the proceedings makes them run foul of section 91(3) of the Evidence Act. They are legally inadmissible. Section 91 (3) reads thus:-

“91(3) Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceeding were pending or anticipated involving a dispute as at any fact which this statement might tend to satisfy.”

Learned counsel for the appellant has based his argument that the 1st respondent’s share certificates were returned to him on the basis of exhibits F1 and F2. This cannot be correct since exhibits F1 and F2 were not what the appellant had collected from the 1st respondent and forwarded to the 2nd respondent for verification.

The two exhibits were made by the 2nd respondent, nine months after the institution of this action and some three months after it claimed to have received the 3rd party notice. They are even described as duplicate of the certificates. One would have expected the duplicates to bear the same characteristics of the original. The original certificates were submitted to the appellant by the 1st respondent on the 7th day of August, 1998. By its own evidence, the appellant forwarded the share certificates to the 2nd respondent in October, 1998, for verification of signature. It is inconceivable how the certificates forwarded by the appellant to the 2nd respondent in October, 1998, would be made on the 29th day of January, 2004. Learned counsel also made a big weather of the finding by the learned trial Judge that the 1st respondent rejected/refused to accept exhibits F1 and F2 because they did not bear correct names, It is clear from the record that this piece of evidence was elicited when the 1st respondent was, by the leave of the lower court, recalled by the 2nd respondent. The submissions, therefore, that the 1st respondent did not plead or give evidence of incorrect names on exhibits F1 and F2 and that the learned trial Judge descended into the arena are of no moment. The submissions are not borne out of the honest position of the record before this court. One wonders how the 1st respondent was expected to plead and give evidence of a piece of evidence that was not in existence during his testimony in court. It is instructive to note that the 2nd respondent was represented in court when the 1st respondent was giving evidence and during his cross-examination by learned counsel for the appellant and that it was long thereafter that exhibits F1 and F2 were made. I hold that the learned trial Judge was on sound footing when he held that the two exhibits were rejected by the 1st respondent for the reason, inter alia, that the exhibits did not bear his correct names.

As stated earlier in this judgment and in answer to the issue No. Two, formulated by the appellant, the wrong the 1st respondent established against the appellant is that of the tort of detinue. In an action for detinue, the gist of the action is the unlawful detention of the plaintiff’s chattel which he has an immediate right to possess after the plaintiff has demanded its return, So a successful plaintiff is entitled to an order of specific restitution of the chattel, or, in default, its value and also damages for its detention up to the date of judgment. See Elijah Oladeji Kasile v. Amuba Olaniyi Falarin (1989) 3 NWLR (Pt. 107) 1, (1989) 4 S.C.N.J, (Pt. 11) 198, 200.

In the instant case, the evidence of both the appellant and the 2nd respondent has shown beyond peradventure that restitution is no longer possible since on their own admission the two share certificates have been lost and, most importantly, they are now valueless even if they are now recovered since the 2nd respondent has alerted/cautioned the business community of the danger in dealing with the certificates. The only alternative open to the learned trial Judge was to order for their return or payment of their value and to award damages for their unlawful detention up to the date of his judgment. The 1st respondent has claimed the appreciated value of the shares at the prevailing market rate at the Lagos stock market at the date of hearing/determination of the suit. See paragraph 13(b).

He has earlier claimed N67,650.00 as market value of 1230 units of Guiness (Nigeria) Plc shares as at April, 2003. That was when this action was instituted. He also claimed N500,000.00 being general damages for inconveniences, mental torture and compensatory losses.

The 1st respondent tendered exhibits B and C to show what the prevailing market value of the GUINESS (NIG.) PLC shares were as at the date of the institution of the action and the date when he testified. It was N55 per share as at April 2003 and N134.00 per share as at October, 2003. When he was recalled for cross examination on the application of the 2nd respondent, the 1st respondent testified to the effect that current market value of Guiness (Nig.) Plc shares as at that date was N184.00 per share. He insisted that he wanted the appellant to pay him the market value. That was on the 25th day of May, 2004. The evidence and pleadings in respect of the value of the Guiness (Nigeria) Plc, as presented by the 1st respondent remains unchallenged and uncontroverted. To this end, the lower court was right in accepting the evidence and in making order for the return of the 1st respondent’s share certificates or payment of their value at the prevailing market value as claimed by him.

The only serious complaint is against the award of general damages. The appellant argued that the award of general damages in this case amounted to double compensation. I think the issue is misconceived by the learned counsel for the appellant. Apart from an order for restitution or value of the chattel, a plaintiff in an action for detinue is also entitled to general damages for the detention of the chattel. In the instant case, the share certificate had been detained for upward of six (6) years. It has been submitted for the appellant that the 1st respondent did not present any medical evidence regarding the physical and mental torture to which he was subjected during the period of six years. With respect, the 1st respondent did not say he has suffered from mental illness. I do not see any reason for medical involvement in this case. 1st respondent has given detailed, cogent evidence of how he continually paid personal visits to the appellant in order to get value for his share certificates or to get a return of his certificates.

The appellant admitted this evidence in its own evidence and confessed that it did nothing about the matter until it received exhibit G. It is belated in the day for the appellant to now say there was no physical or mental torture to the 1st respondent.

The amount of N500,000.00 as general damages is on the high side but the 1st respondent is entitled to general damages. Indeed, the 1st respondent has made out a case for the award of exemplary damages but this has to be specifically claimed and pleaded and it cannot be awarded. See Joseph Odogu v. A.-G. of the Federation (1996) 6 NWLR (Pt. 456) 508, 519.

Instead of exemplary damages, the 1st respondent has claimed compensatory damages. I do not know what that is supposed to mean. In this case, I find nothing wrong with the learned trial Judge awarding general damages but the amount awarded by him is excessive. In the address of the learned counsel for the 2nd respondent at the lower court, it was stated that the 1st respondent’s shares, at the Guiness (Nigeria) Plc, was still attracting bonuses and dividends.

But from the circumstances of this case, there is no way the 1st respondent can lay claim to those benefits. Apart from the psychological trauma that the 1st respondent went through, one of the factors the court has to take into consideration in the award of general damages is the loss of bonuses and dividends that should have accrued to him by reason of his 1230 shares.

In the circumstance a general damages in the sum of N250.000.00 will be adequate and meet the Justice of this case. The said sum of N250,000.00 is hereby awarded as general damages for the detention of the 1st respondent’s share certificates up till the date of the judgment of the lower court. The 1st respondent is also entitled to the return of his share certificates or its prevailing market value as ordered by the lower court. For avoidance of doubt, the last/current market value before the lower court was N 184.00 per share as at the 25th day of May, 2004, when the 1st respondent was recalled for cross-examination.

In the circumstance, a general damages in the sum of N250.000.00 will be adequate and meet the Justice of this case. The said sum of N250,000.00 is hereby awarded as general damages for the detention of the 1st respondent’s share certificates up till the date of the judgment of the lower court. The 1st respondent is also entitled to the return of his share certificates or its prevailing market value as ordered by the lower court. For avoidance of doubt, the last/current market value before the lower court was N 184.00 per share as at the 25th day of May, 2004, when the 1st respondent was recalled for cross-examination.

The relief in the notice of appeal does not include any prayer against the 2nd respondent.

This appeal fails and the same is accordingly hereby dismissed.

Cost assessed at N10,000.00 as awarded in favour of the 1st respondent.

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Other Citations: (2007)LCN/2201(CA)