Scoa Nigeria Limited V. J. A. Kehinde & Sons Nigeria Ltd. (2003)

LawGlobal-Hub Lead Judgment Report

VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.

In this appeal, the evidence of both the appellant and the respondent show the following facts. That the Chairman of the respondent who testified as PW 1 in the court below gave instruction to his employee to take the company’s vehicle to the appellant for the appellant to rectify the problem of engine oil consumption in the said vehicle, at a cost of not more than N3,500.

The vehicle is a Mitsubishi Canter vehicle; and it was delivered to the appellant’s workshop at Abeokuta in February 1988, the date is not stated. Exhibit B is a letter dated 18th June, 1989, by which the appellant asked the respondent to go to its workshop at Abeokuta to collect the said vehicle, upon payment of the sum of N11,309.00 costs of the repairs of the said vehicle following the letter, the respondent said she went to Abeokuta workshop of the appellant on 7/6/89 (from the records, the date cannot be correct) and found that the vehicle would not work.

The respondent demanded to see the inventory of the part supplied to the car, and directed that the appellant should do nothing on the vehicle, until he revisits the appellant with his engineer; this instruction is contained in exhibit C. Consequently, the appellant did nothing on the vehicle, and … there is no evidence that the appellant went with his engineer to the respondent, until the appellant wrote to inform the respondent that the appellant would close its Abeokuta workshop, and will transfer and take to Ibadan, the respondent’s vehicle if the respondent did not go to collect his vehicle at Abeokuta workshop.

The letter of the appellant is exhibit D. The respondent instructed his solicitor to write to the appellant in exhibit F, dated 15/6/1990.

Series of communication were exchanged between the respondent and the appellant. The respondent submitted to the appellant a list of the repairs required to be carried out on the vehicle, which the appellant refused; to countenance, it is the estimate; that is exhibit 1; at which stage the vehicle had been transferred to Lagos, where upon in about 1991; March, the respondent demanded the return of the said vehicle and the appellant demanded, the payment of the unpaid bill of the respondent.

Because the negotiation between the parties failed, the respondent issued a writ of summons, and claimed from the appellant as defendant, “the returns to the plaintiff of the Mitsubishi Canter vehicle; Registration No. OG3159 EC property of the plaintiff packed at the Ibadan workshop of the defendant since June 1989, since the defendant failed to overhaul the said vehicle according to the 1988 agreement between the plaintiff and the defendant (11) N937,550 general and special damages for breach of the contract.

The plaintiff demanded for the return of the said vehicle in a letter dated 15th June, 1990, which the defendant refused to comply with. With his amended statement of defence, the defendant filed a counter-claim for the recovery of the sum of N11,309.00 cost of repairs of the said vehicle, and the payment of the sum of N250, per month for the storage of the plaintiff’s Mitsubishi Canter vehicle in the defendant’s garage, and interest thereon at 15% on the said sum from June 1989 when the plaintiff failed to pay the sum of N11,309.00 for repairs carried out on the vehicle and collect same despite repeated demands.”

After reviewing the evidence in some respect, the learned trial Judge recorded as follows:
“There shall therefore be judgment for the plaintiff for:
(a) The sum of N20,000 damages for the loss of the chickens since 1991.
(b) The sum of N40,000 damages for expense incurred on staff transportation since 1991
(c) The sum of N154,820 being the amount due to the plaintiff for the repairs of the vehicle.
(d) Immediate release of the vehicle No. OG 3159 EC to the plaintiff by the defendant.
(e) Plaintiff shall be entitled to N5,000 costs.
(f) The defendant shall be entitled to judgment for N11,084,56 in its counter-claim. Its claim for storage at N250 per month is dismissed in its entirety.

The defendant will be entitled to N100.00 cost. Judgment in the suit was delivered on 16th February, 1998, and the defendant appealed the judgment on 20th February, 1998. The appeal is founded on six grounds, and it seeks an order of this court to set aside part of the judgment. The appellant formulated five issues; and the respondent four issues. The appellant’s issues as contained in its brief of argument filed in this court on 30/8/2001 they are as follows:
“(1) Whether in the absence of a finding by the trial court of a breach of contract against the defendant/appellant; a subsequent award of damages against it has not occasioned a miscarriage of justice.

(2) Whether the trial court was not wrong in law when it awarded damages not specifically claimed by the plaintiff.

(3) Whether it does not amount to an arbitrary and double compensation for the trial Judge to have initially awarded N20,000 against the defendant for the loss of the plaintiff; chickens occasioned by the in availability of a vehicle, and later award N40,000 as damages for costs incurred by the plaintiff in paying its staff and cost of alternative transportation due to the same reason.

(4) Whether the trial Judge was right in holding that defendant had a duty to mitigate the plaintiff’s loss.

(5) Whether the trial Judge was right in not holding that the plaintiff failed to take steps to mitigate its loss.”

The respondent’s brief was filed on 25/6/2002 and with the leave of court for extension of time so to file on 15/9/2002. The issues formulated are as follows:
“(A) Whether the plaintiff’s action of detinue was not proved together with special damages.
(B) Whether the amount of N154,820 awarded was not part of the special damages for tort of detinue rather than an award for breach of contract.
(C) Whether the plaintiff did not take step to mitigate its loss.
(D) Whether the costs of N5,000 was excessive.”

Upon the receipt of the respondent’s brief dated 27/9/2002, appellant filed a reply brief. In the appellants reply brief, the appellant complained that the respondent without filing a cross-appeal took on an issue not contained in the appellant’s brief that the issue on which the respondent replied in its issues A, B, & C, did not derive from the ground of appeal filed. The appellant’s submitted that the issue of detinue was not canvassed in the court below, and it is not the basis on which the order of court for damages was made.

The appellant reiterated that the award of damages by the court below is founded on double compensation which is wrong at law; and that the award of special damages was not proved by the respondent in the court below. The appellant counter claimed in the court below for N11,309.00 … allied issues formulated by the appellant and the respondent in each brief; irrespective of whether the numbered issues are the same.

The treatment of the issue in this appeal will be determined by the theme of the subject 1 only 2 and 3 in the appellant’s brief are on the issue of whether the findings of the court below and the judgment delivered in favour of the respondent do not show that the court below failed to find in favour of the respondent’s claim; that the appellant was in any breach of contract with the respondent. If so, on what grounds are the various orders of costs awarded against the appellant? The respondent in his response formulated that the ground upon which the court ordered damages and costs against the appellant was for detinue; and that the special damages awarded against the appellant was for such detention of the vehicle.

The two issues A, of the appellant and issue A of the respondent are on the same issue; and the respondent’s reply is like an answer to the question posed by the appellant. I will treat both issues like this. In the judgment of the court below, an order of the court was made awarding to the appellant the sum of N11,084.56, being the counter-claim made in the suit. The award of the sum is upon proof by the appellant counter-claimant that the vehicle in issue brought to the appellant for repair was not detained wrongfully by the appellant; and that if the respondent had paid the bill the delay should not have occurred.

The question to be asked is this if the appellant counter-claimant is lawfully entitled to his claim, which is vindicated in the award of the court to the appellant against which the appellant does not appeal why is the appellant being ordered by the same court in the same matter making an order for the appellant to pay for damages to the respondent as the plaintiff?

Whether in contract or in tort; if there is no breach of contract proved where damages are payable under an order of court. Despite the contents of the appellant’s counter-claim which gave the transaction between the appellant and respondent its correct definition, the transaction between the parties and the claim of the plaintiff in the court below can only at law be classified under detinue of a chattel; commencing from a date; unnamed; but not as claimed by the plaintiff now respondent. The plaintiff claimed that the alleged detention of the vehicle was from 1990.

This is not correct because of the contract exhibit C, there (exhibit C) the respondent with knowledge of the bill raised by the appellant asked the appellant not to continue work further on the car until the respondent had revisited, the garage with his own engineer, it appeared that the respondent did not return before the action.

The retention of the vehicle in the appellant’s workshop up till then was with the knowledge and consent of the respondent. The appellant did not go back with his engineer to the appellant’s workshop before the appellant invited the respondent to go and remove his vehicle from its Abeokuta workshop. Even if the respondent went, he did not remove the vehicle until it was taken to the Ibadan workshop of the appellant. Before I define the incidence of detinue as a tort, I deem it appropriate to refer to the testimony in the court below of the respondent’s engineer.

The court below in his judgment did not believe his testimony as PW2, see page 108 of the record. There was infact no opportunity for PW2, to have inspected the said vehicle; because the respondent did not go back with any engineer to revisit the said vehicle in the appellant’s workshop. The presence and stay of the said vehicle in the appellant’s workshop continued to be with the knowledge, and consent of the respondent even if tacitly when the respondent refused to pay the bill incurred on the vehicle due to the appellant.

A right in detinue occurs when goods belonging to another is unjustly detained by the defendant. It is not sufficient to find an action in detinue only because of a refusal by the defendant to surrender the chattel. The issue to be considered; which it seems clear to me the court below considered when he ordered the payment to the defendant now appellant of the sum claimed by the appellant and further ordered the return of the said chattel is the question whether the refusal to surrender the chattel was justified? Clearly, the court below found that the detention of the goods from the time of the demand by the respondent was justified.

Now the time of demand; which was justifiably refused by the appellant is not as recorded in the plaintiff’s writ of summons when he wrote 1989. There can not have been a refusal of the appellant to return the car to the respondent in 1989, when in June 1989; see exhibit B, the appellant wrote to the respondent to go and collect the said vehicle after settling the bill. It was following that event that the respondent issued exhibit C, which gave license for the said vehicle to remain in the appellant’s workshop; up to that period, and until 1990, see exhibit E, when a letter dated 22/1/90 arrived from Ibadan, branch of the appellant’s workshop asking the respondent to go and collect its vehicle.

It is only in the respondent’s solicitor letter dated 15/6/90 that a demand was made for the vehicle.
Even at that time, the respondent was aware of the reason why the appellant would not release the said vehicle. The clear reason is that the plaintiff/respondent failed to pay the costs of repairs demanded by the appellant. There was therefore no detinue by the appellant. The refusal to surrender the plaintiff’s/respondent’s vehicle is justified, and does not entitle the plaintiff to any remedy in detinue. It seems to me that the learned trial court came to this conclusion, but unfortunately proceeded to mislead himself on the result of his findings, and conclusions. It is pertinent to comment that the judgment of the court below failed to identify the element of law on which he made his conclusion, it was therefore not impossible for him to be uncertain about the consequence of the conclusion he has arrived at.

Clearly the claim of the plaintiff in the court below is a claim in detinue when he asked for the return of the vehicle etc; from the defendant in the court below, when the demand was made in 1990; not 1989; it was at this time the appellant asked the respondent to pay the bill and may have the vehicle back. As it was, it took the intervention of the court below to resolve the issue.

Consequently, I resolve issues A, B and C, of the appellant’s brief and issue A of the respondent’s brief against the respondent in favour of the appellant, and rule that, the award made in favour of the claim of the appellant in the court below is evidence of the justifiable refusal of the plaintiff/defendant to surrender the car in the appellant’s possession. That being so, the subsequent orders made by the court below for costs are unjustified and wrong at law.

Generally an appellate court does not interfere with the findings of facts of the court below. In this case, the order made by the court below in the counter-claim on the same facts do not flow from the facts and findings of the said court, in the event it is right to interfere in the interest of justice. There should be no penalty where no wrong is proved. See Wahabi Aigbotosho Sijuola Olanrewaju v. Governor of Oyo State 11 – 12 SCNJ at 105 – 106, (1992) 9 NWLR (Pt.265) 335. As the court below has held that the counter-claimant is entitled to the cost of repairs on the vehicle; which was the reason the appellant withheld surrender of the vehicle, the refusal to surrender the vehicle when demanded in 1990 is justifiable. There is therefore no wrongful detention of the vehicle and the consequential order for damages made by the court is inappropriate, and unnecessary.

It is my view, and I so hold that the instant appeal is a proper case to intervene, when the conclusion reached by the court below in the two different claims before him; (the claim and counter-claim); the court below made orders which are inconsistent with the conclusions that he had reached, the court below has therefore made orders for damages in favour of the plaintiff, and gave judgment to the defendant counter-claimant on the same issue, the court therefore in my view failed to consider the totality of the evidence led, and made orders in favour of one party which did not flow from the facts of the case.
See Ajadi v. Okenihun (1985) 1 NWLR (Pt.3) 484, (1985) NSCC, (11) Kate Enterprises Ltd. v. Daewoo (Nig.) Ltd. (1985) 2 NWLR (Pt. 5) 116 at 120.

For the above reasons, I set aside the order for damages made in the judgment of O. Sonoiki, J. in favour of the plaintiff/respondent in this suit, which consists of the sum of N20,000 for damages for loss of chickens, which in any case is remote; and amount to double compensation when an order of N40,000 for damages for expenses allegedly incurred in staff transportation, and for the sum of N154, 820 being amount due to the plaintiff for repairs due to the plaintiff which inter alia includes, wheel spanner and jack have been ordered.

The discretion to award costs is in the court. I do not intervene in the order for costs to the plaintiff/respondents of N5,000 and N100.000 respectively.

The order of court to return the said Mitsubishi vehicle registration number OG 3159 EC; remains enforceable and the judgment in the counter-claim for N11,084.00 remains enforceable in the judgment of the court below. In this appeal, with the above pronouncement, there is no need to go further to treat issues A and E, as the conclusion in the judgment has effectively dealt with them.
The appeal succeeds in part, it is allowed; in part, part of the decision in the court below is set aside as contained in the body of the judgment. There will be no order for costs.

Other Citations: (2003)LCN/1421(CA)