Shell Petroleum Dev. Co. Of Nigeria V. Nelson Okonedo (2007)

LawGlobal-Hub Lead Judgment Report

ABBA AJI, J.C.A.

By a writ of summons issued on the 14th day of February, 1998 from the High Court of Justice, Delta State in the Warri Judicial Division, the plaintiff who is the respondent in this appeal claimed from the appellant who was the defendant as follows:-

“The plaintiff’s claim against the defendant is for the sum of N50,000,000.00k (Fifty million naira) being special and general damages for wrongful and unlawful seizure of his personal properties from his house at No. 1 Akpore Street, Ugbonikoko Layout, Effurun at the instance of the defendant in a purported execution of a judgment against one Nellie Green Nigeria Limited on 1/11/1996. The defendant maliciously maintained their claim – on the plaintiff’s properties from 1/11/96 to 21/1/98 when plaintiff went to carry the items himself upon the failure, refusal and/or neglect of the defendant to return same to the plaintiff’s premises within 7 days from 14/1/98 as ordered by court. Upon receipt of the items plaintiff discovered that most of them has been completely damaged.”

Pleadings were duly filed and exchanged. The case proceeded to trial on the basis of the amended statement of claim and the further amended statement of defence.

The plaintiff/respondent testified and called three other witnesses. The defendant/appellant called two witnesses. Both counsel addressed the court. In a considered judgment delivered on the 17th March, 2003, the learned trial Judge have found for the respondent and awarded him the sum of N2,804,400.00k (Two million eight hundred and four thousand, four hundred Naira) as special and general damages.

Being dissatisfied with the judgment of the learned trial Judge, the defendant/appellant by notice of appeal dated the 19th day of March, 2003 appealed to this court on three grounds of appeal. With leave of this court granted on the 24th/11/2004, four additional grounds of appeal were filed by the appellant. The original and additional grounds of appeal without their particulars are hereby reproduced:

“1. The learned trial Judge erred in law when he held that the court is not concerned with the form in which the plaintiff’s claim is brought before the court as long as the court believes that the plaintiff has been wronged he will be entitled to his claim.

2. The learned trial Judge erred in law when he awarded special damages to the plaintiff in the absence of strict proof of the claims.
3. The learned trial Judge erred in law when he awarded the plaintiff additional damages of N2,000,000.00 (Two million naira) after assessing and awarding actual damages of N804,400.00 (Eight hundred and four thousand, four hundred naira) to the plaintiff.
4. The learned trial Judge en-ed in law when he awarded special damages in favour of the plaintiff against the defendant.
5. The learned trial Judge misdirected himself when he held that the defendant maliciously held on to the plaintiff’s property thereby making the defendant liable in general damages.
6. The learned trial Judge erred in law when he held that the plaintiff had proved his case and entitled to judgment.
7. The learned trial Judge misdirected himself when he failed to properly evaluate the evidence adduced before him before entering judgment in favour of the plaintiff.”

Briefly, the facts given rise to the claim before the court was that the plaintiff/respondent was a Director of Nellie Green Nigeria Limited, which company, the defendant/appellant got judgment against for the sum of N1,202,315:50 (One million, two hundred and two thousand, three hundred and fifteen Naira, fifty Kobo) in suit No. W/265/95, S.P.D.C. Nigeria Limited v. Nellie Green Nigeria Ltd. & Anor on 7th/2/96.

The defendant/appellant applied for a writ of execution to levy execution on the property of the judgment debtor. The sheriffs of the court properly authorized levied execution on properties belonging to the plaintiff/respondent at his residence at No.1 Akpore Street, Ugborikoko Layout, Effurun as those belonging to Nellie Green Nigeria Ltd., the judgment debtor.

The plaintiff subsequently brought an application seeking the release of the attached properties on the ground that they were his personal belongings and the properties were collected by him from the custody of the court.

In compliance with the rules of this court, the parties filed and exchanged briefs of argument.

In the appellant’s brief settled by Dafe Akpedeye (SAN), four issues were distilled for determination arising from the grounds of appeal. The issues are:-

“1. Whether the learned trial Judge was right in failing to ascertain the plaintiff’s cause of action before entering judgment for the plaintiff.

2. Whether the learned trial Judge was right in awarding special and general damages to the respondent?
3. Whether the trial court was right to have awarded the plaintiff general damages of N2,000,000.00 after assessing and awarding special damages of N804,400.00 (Eight hundred and four thousand. Four hundred Naira) to the plaintiff.
4. Whether the learned trial Judge proceeded on the right principles and properly evaluated the evidence adduced before the court before entering judgment for the respondent.”

In the respondent’s brief settled by E.L. Umeze, Esq., the respondent’s counsel adopted the issues as formulated by the learned counsel for the appellant.

At the hearing of the appeal, learned counsel for the appellant adopted and relied on the appellant’s brief of argument dated and filed on 24th/11/2004 and urged us to resolve all the issues in favour of the appellant and to set aside the decision of the lower court and to allow the appeal. The respondent adopted and relied on the respondent’s brief of argument dated 31st/10/2005 and deemed filed on the 2nd/5/2006 and urged us to resolve the issues in favour of the respondent and to dismiss the appeal.

I will, in the determination of this appeal, adopt and consider the issues as formulated by the appellant.

Issue one is, whether the learned trial Judge was right in failing to ascertain the plaintiff’s cause of action before entering judgment for the plaintiff.

Arguing this issue, learned counsel for the appellant, Dafe Akpedeye (SAN) submitted that before a plaintiff can institute an action in court, there must exists a cause of action. He went on to define a cause of action by reference to the following cases:- S.P.D.C. of Nigeria Ltd. v. Farah (1995) 3 NWLR (Pt. 382) 148 and Wema Bank Ltd. v. International Fishing Co. Ltd. (1998) 6 NWLR (Pt. 555) 557 at 569.

Learned counsel referred to the plaintiff’s claim as endorsed in paragraph 18 of the amended statement of claim and submitted that the respondent’s claim is for special damages being the value of his properties seized by the appellant and general damages for the unlawful seizure of the said items. It is submitted that the respondent’s cause of action was based on detinue. The respondent contended that his cause of action was based on trespass. Learned senior counsel submitted that instead of the learned trial Judge resolving the issues canvassed by the patties as to the nature of the cause of action, the learned trial Judge held that the court is more interested in substance than in mere form. He referred to page 135 lines 31 – 34 of the record and submitted that the learned trial Judge erred in taking the position as there is a difference between a cause of action as defined in the case of Wema Bank Ltd. v. International Fishing Company Ltd. (supra) at 569 and forms of action. He also relied on the authority of Fasheun Motors Ltd. v. U.B.A. Ltd. (2000) 1 NWLR (Pt. 640) 190 at 200. Learned counsel argued that it is the cause of action that determines the nature of evidence required to establish the claim of the plaintiff and whether the plaintiff has proved his case and whether or not the suit is statute-barred. It is his view that the learned trial Judge failed to consider the nature of the respondent’s claim at the lower court and it cannot be said that the respondent established his claim as to be entitled to judgment. That the court cannot strive to make a case different from the one made by the respondent, relying on Lagos University Teaching Hospital and Management Board v. Prince M.B. Adewole (1998) 5 NWLR (Pt. 550) 406 at 419. It is the submission of the learned SAN that if the learned trial Judge had bothered to consider the nature of the respondent’s claim, he would have found that it was a claim in detinue, and that the respondent had not proved his case. He submitted that before a cause of action can accrue in detinue two conditions must exist; namely:

(a) the wrongful detention of plaintiff’s chattel; and

(b) the refusal of the defendant to deliver up the chattel to the plaintiff on demand.

He cited and relied on the following cases; Benin Rubber Producers Cooperative Marketing Union Ltd. v. S. O. Ojo & Anor. (1997) 9 NWLR (Pt. 521) 388 and J.E. Oshevire Ltd. v. Tripoli Motors Ltd. (1997) 5 NWLR (Pt. 503) 1 at 21. Learned counsel submitted that the respondent could not plead within the four walls of his amended statement of claim nor did he or any of his witnesses testify that respondent made a demand for the appellant to return the items to him and the appellant refused. That even PW2 who was a solicitor to the respondent did not testify to such a demand to the appellant. It is his view that the suit instituted by the respondent to recover his properties cannot constitute such a demand made to the appellant, citing Benin Rubber Producers Co-operative Marketing Union Ltd. v. S.O. Ojo (supra) at 408. On the evidence of the respondent regarding the failure of the appellant to return the property after judgment was delivered on the 14/01/08. Learned counsel referred to Order 22 rule 1 of the Bendel State High Court (Civil, Procedure) Rules, 1988 as applicable to Delta State and submitted that in the computation of time within which to carry out an act, the day on which the order was made is not inclusive, thus 7 days from 14th/01/98 would ordinarily terminate on the night of 21/01/98.It is also his view that since the 7 days had not expired before the respondent removed his properties, the appellant could not be said to have refused to return the respondent’s chattel on demand for a cause of action to accrue on detinue. It is also his view that the respondent did not satisfy the condition precedent to bringing an action in detinue. That there was no demand made for the return of the items as required by law, citing J.E. Oshevire Ltd. v. Tripoli Motors Ltd. (supra) at 21.

It is the alternative submission of the learned senior counsel that should this court find that the suit of the respondent was based on the tort of trespass, that the appellant is not liable to the respondent in damages as trespass is actionable per se at the suit of the person in possession of land. He referred to the case of Nathaniel Ajero v. Bernard Ugorji (1999) 10 NWLR (Pt. 621) 1. Learned counsel submitted that from the evidence, it is clear that the respondent himself took the appellant to the premises where the judgment of the Warri High Court was executed and that trespass to land is an entry upon land or any direct and immediate interference with the possession of land or to say that the defendant broke and entered the plaintiff’s land and did damage. He submitted that the respondent neither pleaded nor testified that the appellant broke and entered into his land and did damage. It is submitted that the execution complained of was an official act of the officers of the High Court and could not therefore be said to be unlawful. It is further submitted that the respondent did not establish a case against the appellant in trespass citing Ajero v. Ugorji (supra) at page 18. It is therefore submitted that the respondent had not proved his case and was not entitled to judgment as erroneously found by the learned trial Judge. On issue No.2 which is whether the learned trial Judge was right in awarding special damages to the respondent. Arguing this issue, learned senior counsel for the appellant, Dafe Akpedeye (SAN) referred to the respondent’s claim as contained in paragraph 18 of the amended statement of claim and submitted that the respondent’s action is for the value of his detained properties and damages for the said detention. Citing the case of Chief Paul Ordia v. Piedmont (Nig.) Ltd. (1995) 2 NWLR (Pt. 379) 516. Learned SAN referred to the evidence of the respondent particularly at page 30 lines 1 – 3 of the records and submitted that despite the fact that the respondent collected his properties, the learned trial Judge awarded special damages for costs of repairs of the Honda Car, loss of earning from the car hire agreement and payment of solicitor’s fees. It is submitted that the trial court was wrong to have made the award in view of the fact that the respondent did not show the value of the scrapped parts of his vehicle to the court to enable the court deduct the same from the cost of materials alleged to have been bought for the said repairs as required by law citing the cases of Cross Lines Ltd. v. Etukudo Thompson (1993) 2 NWLR (Pt. 273) 74 and Chief Paul Ordia v. Piedmont (Nig.) Ltd. (supra).

On the evidence of PW1, the motor mechanic, it is the view of the learned senior counsel that the trial Judge ought to have taken judicial notice of the fact that a single motor mechanic does not engage in panel beating, spraying, vulcanizing and car upholstery works, contrary to the evidence of PW1, citing also the case of Chief Asuquo Oko & Ors. v. Chief James Ntukidem & Ors. (1993) 2 NWLR (Pt. 274) 124; Humu Mumu v. Asen Agor (1993) 8 NWLR (Pt. 313) 573. It is submitted that the court ought to have found that the scope of work claimed to have been carried out by PW1 was too wide for a roadside motor mechanic workshop. It is his view that the court was wrong in awarding the sum of N160,900.00k (One hundred and sixty thousand nine hundred naira) to the respondent as special damages for car repairs based on receipts prepaid by PW1. It is further submitted that the respondent ought to have pleaded and given evidence on the pre-attachment market value of the items, citing Cross Lines Ltd. v. Etukudo Thompson (1993) 2 NWLR (Pt. 273) 74 at 84.

On the award of N633,500.00 (Six hundred and thirty three thousand, five hundred Naira) to the respondent as loss for hire rate for 6 months, the appellant submitted that such award is not supportable by law and that the court ought to have taken judicial notice of the fact that cars were not hired at the rate of N3,500.00 (Three thousand five hundred Naira) in 1996. He cited and relied on A.C.B. Ltd. v. Neka B.B.B. Mfg. Co. Ltd. (1996) 4 NWLR (Pt. 444) 564. It is submitted that the law is settled that for a commercial vehicle, the loss of profit will be the amount that car was making per day after deduction of expenses e.g. cost of running and routine services of the car. He relied on the authority of Obasuyi v. Business Ventures Ltd. (1995) 7 NWLR (Pt. 406) 184 and Amadi v. Essien (1994) 7 NWLR (Pt. 354) 91 at 304.

On the award of N10,000.00 (Ten thousand Naira) solicitors fee, the learned senior counsel submitted that it is unknown to our law citing Guinness (Nig.) Plc v. Nwoke (2000) 15 NWLR (Pt. 689) 135.

On the award of N160,900.00 special damages for car repairs, learned senior counsel also submitted that the learned trial Judge did not take cognizance of the position of the law that entitled the appellant at least to the alleged damaged items retained by the respondent as the value of the scrap should have been deducted from the amount payable to the respondent for the items. Learned counsel also relied on the case of Benin Rubber Producers Co-operative Marketing Union Ltd. v. S.O. Ojo & Anor. (1997) 9 NWLR (Pt.388) on the principle that the law does not take into account everything that follows a wrongful act. He argued that the claim for special damages was speculative and urged the court to answer issue No.2 in the negative.

Issue No.3 is whether the trial court was right to have awarded the plaintiff general damages of N2,000,000.00k after awarding special damages of N804,400.00k.

Arguing this issue, the learned senior counsel referred to the respondent’s claim as endorsed in his writ of summons and paragraph 18 of his amended statement of claim and submitted that a conspectus of the respondent’s writ of summons and amended statement of claim leads to an inescapable conclusion that the claim of the respondent arose from the alleged wrongful detention of his chattel and the refusal of the defendant to deliver up the chattel to the plaintiff on demand. It is submitted that such a claim is founded in detinue citing Benin Rubber Producers Co-operative Marketing Union Ltd. v. S.O. Ojo (supra). It is submitted that damages are in issue except where expressly admitted, citing Anthony Odiba v. Tule Azege (1998) 9 NWLR (Pt. 566) 370. Learned counsel submitted that in paragraph 30 of the further amended statement of defence, the appellant expressly denied the respondent’s claim for damages as to put the claim in issue. Learned counsel referred to the remedies available to a plaintiff who has a right of action in detinue citing Chief Paul Ordia v. Piedmont (Nig.) Ltd. (1995) 2 NWLR (Pt. 379) 517 and submitted that it is not clear which principle the learned trial Judge applied in awarding damages to the respondent. It is submitted that the redress in an action for detinue is not strictly for the wrong but for the return of the chattel or its value and the loss of use of the chattel. Learned senior counsel referred to the evidence of the PW2, at page 52 of the record, the respondent’s evidence at page 29, line 30 and page 30 lines 1-3 of the records and submitted that the court must not make any award for general damages where such will amount to compensating the plaintiff twice for a simple loss. It is his view that since the learned trial Judge had already awarded special damages in favour of the respondent, there was no basis for the further award of N2,000,000.00k as general damages since the respondent had been fully compensated in special damages. He relied on the authority of Honika Sawmill Ltd. v. Hoff (1994) 4 NWLR (Pt. 326) 252, and Obi v. Biwater Shellabear (Nig.) Ltd. (1997) 1 NWLR (Pt. 484) 722. Learned counsel further submitted that the respondent did not suffer any damage to justify the award of N2,000,000.00k as general damages in his favour. It is his contention that the attachment of respondent’s property was done by court officials. That it is clear that the execution complained of was an official act of officers of the High Court and that it was the respondent who pointed out the property to the bailiff for execution. That it was wrong for the learned trial Judge to award damages both special and general in favour of the respondent and urged the court to resolve the issue raised in favour of the appellant.

Issue No.4 is, whether the learned trial Judge proceeded on the right principle and properly evaluated the evidence adduced at the lower court before entering judgment for the respondent?

Arguing this issue, the learned SAN submitted that the learned trial Judge did not properly appraise, assess and/or evaluate the evidence at the lower court before entering judgment for the respondent. He submitted that the matters in dispute in the suit related to the alleged wrongful and unlawful seizure of the respondent’s property by the appellant which was wrongful and that the appellant’s refusal to deliver up the chattel to the respondent on demand. He relied on the authority of Benin Rubber Producers Co-operative Marketing Union Ltd. v. S.O. Ojo & Anor. (1997) 9 NWLR (Pt. 521) 388. It is submitted that the primary function of the trial Judge is to first consider the entire case from the stand point of the pleadings to determine the onus of proof, the evidence led by the plaintiff on all material facts upon which issues have been joined, analyze the evidence of both side and gauge their credibility and then put evidence of both sides on the imaginary scale of justice to determine on which side the balance tilts. The following cases were relied upon.

1. Akanmu & Anor. v. Adigun & Anor. (1993) 7 NWLR (Pt. 304) 218 at 227.
2. Mogaji v. Odofin (1978) 4 SC 91.
3. Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) 393.
4. Karibo v. Grend (1992) 3 NWLR (Pt. 230) 426 at 442 – 443.

It is further submitted that the learned trial Judge failed to properly appraise, assess and determine the probative value of the evidence adduced by the respondent. It is the contention of the appellant that the evidence of the respondent at page 27 line 13 and that of PW1 at page 47 lines 13 – 15 of the records that the Honda Accord Car was in good condition was contradictory to paragraph 6 of the amended statement of claim at page 14 lines 15 – 16 where it was averred that the advance payment made to the respondent was to enable him put the said Honda vehicle in order and ought to have been disregarded.

It is also contended that the evidence that the respondent signed exhibit A voluntarily as judgment debtor and the finding by the learned trial Judge that the property attached belonged to Nellie Green is in conflict with the conclusion of the trial court that there was an issue estoppel as to the ownership of the goods attached in execution of the judgment of the court in view of exhibit H. It is his view that a successful plea of estoppel ousts the jurisdiction of the court before which it is raised and a plaintiff cannot and ought not to be seen to impugn the jurisdiction of the very court to which he has taken his complaint. He cited and relied on the following cases: Omokhafe v. Esekhomo (1993) 8 NWLR (Pt. 309) 58 at 74; Udo v. Obot (1989) 1 NWLR (Pt. 95) 59 at 71. It is submitted that there was no where in the pleadings before the trial court that estoppel was specifically pleaded as to enable the learned trial Judge make a finding on it.

It is also the submission of learned senior counsel that the finding of the learned trial Judge on the contention of the appellant that the execution was made on the property of Nellie Green Nigeria Ltd. are contradictory to the averments and admission made in paragraphs 22 and 25 of the pleading of the defendant was wrong since in both paragraphs appellant maintained that the execution was against the property of Nellie Green Nigeria Ltd. and that the appellant has appealed against the decision in exhibit H. Learned senior counsel further submitted that the learned trial Judge fail to perform the primary function of properly evaluating the evidence and urged the court to intervene and set aside the concomitant findings citing in support the following cases:- Popoola & Ors. v. Adeyemo & Anor (1992) 8 NWLR (Pt. 257) 1 at 26 and Sanusi v. Ameyogun (1992) 4 NWLR (Pt. 237) 527 at 549. Learned senior counsel urged the court to allow the appeal and to set aside the judgment of the lower court.

Replying on issue No.1, learned counsel for the respondent Umeze, Esq. submitted that from the pleadings and evidence led at the lower court, the respondent’s cause of action against the appellant is that of trespass and not detinue. Learned counsel referred to the respondent’s claim as endorsed at paragraph 18 of his amended statement of claim and the definition of trespass as defined in Black’s Law Dictionary, 7th Edition at page 1508 and of Trespass to Chattel at page 1509 and submitted that there are only two salient factors to be established for a cause of action in tort of trespass to arise. These are ownership of the chattels and the fact of unlawful interference with the same. It is also submitted that the respondent’s case before the lower court falls squarely into the tort of trespass. He referred to paragraphs 3, 4, 5, 13 and 14 of the respondent amended statement of claim that he is the owner of the property attached in execution of the judgment in suit No. W/265/95 at the instance of the appellant. The following cases were relied upon by the learned counsel:- Ogunbiyi v. Adewunmi (1988) 5 NWLR (Pt. 93) 215 at 221; Onagoruwa v. Adeniyi (1993) 5 NWLR (Pt. 793) 350; Oyerogba v. Ido Local Government (2001) FWLR (Pt. 36) 928 at 946 – 947. Learned counsel further submitted that at paragraphs 4, 5, 9, 13, 15, 16 and 18 of the amended statement of claim pleaded the fact that the execution and attachment of his personal properties by the respondent was unlawful and that the respondent was not a party or the judgment debtor in suit No. W/265/95. The case of Holman Bros. (Nig.) Ltd. v. The Compass Trading Co. Ltd. (1992) 1 NWLR (Pt. 217) 368 at 378 was relied upon by the learned counsel. He also referred to the evidence of the respondent in chief and the exhibits tendered particularly exhibit G originating summons filed in suit No. M/171/96 and exhibit H; the enrolment of order of judgment in suit No. M/171/96 and submitted that the combined effect of exhibits G and H put beyond any doubt the respondent’s ownership of the items attached in the purported execution of the judgment in suit No. W/265/95 and the fact that the execution was wrongfully carried out. It is further submitted that the cause of action of the respondent in the circumstances of this case is that of trespass to the chattel of the respondent as he has established that he was the owner” of the chattels in exhibit A and that the chattels were wrongfully and unlawfully interfered with by the appellant. It is submitted that the contention by the appellant that the action in the lower court is founded in detinue and not in trespass is untenable and misconceived for the reasons that:- (1) In detinue, initial possession of the goods was not wrongful whereas in trespass the possession of the chattel was a fortiori wrongful; and (2) that detinue as a cause of action is only necessary or available where the defendant was unable to redeliver the goods as a result of their loss or destruction; and (3) that detinue as a head of claim in tort is no longer alive as the same has been abolished by section 2 of the Torts (Interference with Goods) Act, 1977.

Learned counsel for the respondent further submitted that the pleadings and evidence of the appellant before the lower court point to the fact that the chattels of the respondent were attached in the mistaken belief that they were entitled to do so in the execution of the judgment in suit No. W/265/95. He referred to paragraphs 5, 6, and 19 of the further amended statement of defence and the evidence in chief of DW2 and submitted that a situation such as the circumstances of the case before the lower court is an appropriate action for trespass and not detinue. He referred to Willfied & Jolowiez on Tort, 15th Edition at page 586 where the position of the law was clearly stated and the case of Moore v. Lambeth County Court Registrar (No.2) 1 Q.B 560. Learned counsel urged the court to resolve issue one against the appellant and in favour of the respondent. It is further submitted that it is not necessary to categorize the respondent’s claim into any head of tort e.g. detinue or trespass which are mere form, but for the court to do justice; by looking into the substance of the facts whether it discloses any cause of action and that the learned trial Judge rightly followed the decisions of the Supreme Court in the following cases: C.A. Savage & Ors. v. M.O. Uwaechia (1972) All NLR (Pt. 1) 251 at 257; Solana v. Olusanya (1975) 6 SC 55 at 62; Bello & Ors. v. Attorney-General, Oyo State (1986) 12 SC 1 at 109 – 133 or (1986) 8 NWLR (Pt. 45) 828 at 889 – 890 per Oputa, JSC (as he then was); and the case of Labode v. Otubu (2001) 7 NWLR (Pt. 712) 256 at 234 per Onu, JSC that a wrong must not necessary be remediable under a known head of tort before it is justiciable. We were urged to resolve issue one in favour of the respondent.

Replying issue No.2, learned counsel for the respondent, Umeze, Esq. submitted that the respondent’s action is not for the value of his detained properties and damages for the said detention as is being contended by the appellant. Learned counsel referred to the claim of the respondent as endorsed at paragraph 18 of his amended statement of claim and submitted that where goods/chattels wrongfully interfered with were damaged, the owner is entitled to special damages by which their value have been diminished. It is submitted that the measure of damages is usually ascertained by reference to the cost of repairs. The following cases were relied upon; Bacon v. Cooper (Metals) Ltd. (1982) 1 All E.R. 397; Dumez (Nig.) Ltd. v. Ogboli (1972) 1 All NLR (Pt. 1) 241 at 249 – 250 and Oshinjinrin v. Elias (1970) 1 All NLR 153.

It is further submitted that apart from recovery of special damages in the form of cost of repairs, the respondent is also entitled to damages for the loss resulting from this deprivation of the use of the goods for a period of time. He submitted that both the respondent and the appellant joined issues on the damage and repairs to the goods. Learned counsel referred to evidence in chief of the respondent and submitted that the respondent testified as to the items damaged and the cost of repairs. The evidence of PW2, the mechanic who repaired the respondent’s car and submitted that by the pleadings and evidence before the lower court, the respondent satisfied the requirement that special damages must be pleaded and strictly proved, citing the cases of Nzeribe v. Dave Engr. Co. Ltd. (1994) SCNJ 161; (1994) 8 NWLR (Pt. 361) 124 and Tabs Ass. Ltd. v. Akwuzie (1995) 4 NWLR (Pt. 388) 223. It is further submitted that the appellant did not lead any evidence to controvert the evidence of the respondent on the condition of the damage to the properties and that the lower court did not award special damages claimed by the respondent in respect of the properties other than the car. It is also submitted that the case of Chief Paul Ordia v. Piedmont (Nig.) Ltd. (1995) 2 NWLR (Pt. 379) 577 cited by the appellant’s counsel is irrelevant as far as the respondent’s case is concerned as Ordia’s case is relevant only in actions founded on detinue. It is also submitted that in the circumstances of the respondent’s case, the learned trial Judge was right to have awarded damages for the loss of earnings from the car. It is submitted that the contention of the appellant that the lower court ought to receive evidence on the value of the scrapped and replaced parts of the vehicle cannot be sustained in the absence of any pleading from either side on the issue of any scrapped or replaced parts of the vehicle. It is also argued that the appellant had the opportunity to demand for better particulars on the items or value of scrapped and replaced parts of the vehicle under Order 32 rule 14 of the Bendel State High Court (Civil Procedure) Rules, 1988 applicable to Delta State. It is also submitted that no evidence was led nor was any received on the issue of scrapped or replaced parts of the vehicle as there was no pleading to sustain such evidence. That the appellant had lost opportunity to cross-examine the respondent on the authenticity of each of the items claimed under the head of special damages even though evidence elicited during cross-examination would have gone to no issue for want of pleadings. The following cases were relied upon:- Punch (Nig.) Ltd. v. Eyitene (2002) FWLR (Pt. 125) 678 at 701; (2001) 17 NWLR (Pt. 741) 228 George v. U.B.A. Ltd. (1972) 1 All NLR (Pt. 2) 347; (1972) 8 9 SC 264 and George v. Dominion Flour Mills (1963) 1 All NLR 71; (1963) 1 SCNLR 117. It is also submitted that the learned trial Judge could not have received any evidence relating to the car hire beyond exhibit ‘c’ which embodied the terms of the hire agreement as to the cost of running/servicing the car as it is evident from exhibit ‘c’ that the hirer and not the respondent was to bear the cost of repairs/servicing of the car during the period of the hire. Learned counsel therefore urged the court to resolve this issue in favour of the respondent.

In response to issue No.3, learned counsel for the respondent, Umeze, Esq. submitted that the law is as stated by Onu, JSC in Labode v. Otubu (supra) that “a wrong must not necessarily be remediable under a known head of tort before it is justiciable;” and Oputa, JSC (as he then was) in Bello & Ors. v. A.-G., Oyo State (supra) at page 886. It is contended by the appellant that the respondent has the burden to testify separately to the claim of general damages as averred in the pleadings. It is submitted that the respondent has no onus placed on him to prove general damages citing Dumez Nigeria Ltd. v. Ogboli (supra) at 249-250; Oshinjinrin v. Ella (supra); and Asua v. Tofi (2001) FWLR (Pt. 72) 2054 at 2062 – 2063. Learned counsel submitted that the learned trial Judge rightly held that the plaintiff has no onus to prove general damages. We are urged to resolve this issue in favour of the respondent.

On issue No.4, learned counsel for the respondent submitted that from the factual situation of the pleadings the learned trial Judge proceeded on the right principle by not necessarily categorizing the case of the respondent into any known head of tort before adjudicating on it. He relied on the authority of Bello & Ors. v. Attorney-General, Oyo State (supra) at pages 885 – 886 per Oputa, JSC. He submitted further that the learned trial Judge properly evaluated the evidence of the respondent and his witnesses and that of the appellant’s witnesses by placing them on the imaginary scale of justice and found that the respondent’s case outweigh the appellant’s case in terms of probative value on the following material issues:- That the execution of the judgment in suit No. W/265/95 on the properties of the respondent was unlawful and wrongful referring to the finding of the learned trial Judge at pages 150-151, lines 28 – … of the record. That the wrongful and unlawful execution carried out by the appellant and the execution team was laced with malice referring to the finding of the learned trial Judge at page 152 lines 9 – 28 of the records. The condition of the respondent’s property i.e. the car before the wrongful and unlawful execution and the resultant damage done to the respondent’s car as a result of the wrongful and unlawful execution carried by the appellant and the execution team. That the losses sustained from the damage of the respondent’s property were proved. He referred to exhibit ‘C’ particularly clauses 4, 5 and 7 and submitted that these clauses remove the force from the contention that the claim for the car hire was speculative because it was for future and fraught with uncertainty to accident etc. That these contingencies were taken into consideration in exhibit ‘c’ and that the take off date of the agreement was 1/11/96 when the car was taken in execution. It is further submitted that the evidence of PW3 was not controverted and the court believes PW3 as a truthful witness and the trial court accepts the claim of the plaintiff for the loss of earning from the car hire agreement of N633,500.00 (Six hundred and thirty three thousand five hundred Naira) for the period 1/11/96 – May, 1997 based at the daily rate of N3,500 (Three thousand five hundred Naira). Learned counsel therefore submitted that the learned trial Judge properly evaluated the evidence before him on the material issues ‘before entering judgment. Reliance was placed on the following cases; Mogaji v. Odofin (1978) 4 SC 91; Whyte v. Jack (1996) 2 NWLR (Pt. 431) 407; Trade Bank Plc v. Chami (2004) All FWLR (Pt. 235) 118 at 146; (2003) 13 NWLR (Pt. 836) 158 MISR (Nig.) Ltd. v. Ibrahim (1974) 5 SC 55 and Egonu v. Egonu (1978) 11 – 12 SC 111. Learned counsel finally urged the court to dismiss the appeal.

I will now proceed to consider the submissions of the learned counsel. Issue No. one in this appeal is whether the learned trial Judge was right in failing to ascertain the plaintiff’s cause of action before entering judgment for the plaintiff.

The contention of the appellant in this issue was that the respondent’s action before the lower court was founded on the tort of detinue while the respondent contended that it was founded on trespass. It was therefore contended by the appellant that the failure of the learned trial Judge to resolve the issue canvassed by the parties as to the nature of the cause of action, the respondent cannot therefore be said to have established his claim as to be entitled to judgment.

The respondent’s claim before the trial court as endorsed in paragraph 18 of his amended statement of claim even at the risk of repetition is hereby reproduced:-

“By virtue of the unlawfulness of the defendant’s action, plaintiff has suffered loss and damage whereof the plaintiff claims as follows:-

The sum of N50,000,000.00k (Fifty million Naira) being special and general damages for wrongful and unlawful seizure of his personal properties from his house at No. 1 Akpore Street, Ugborikoko Layout, Efurun, at the instance of the defendant in a purported execution of a judgment against one Nellie Green Nigeria Limited on 1/11/96. The defendant maliciously maintained their claim on plaintiff’s properties from 1/11/96 to 21/1/98 when plaintiff went to carry the items himself upon the failure, refusal and/or neglect of the defendant to return same to the plaintiff’s premises within 7 days from 14/1/98 as ordered by the court.”

On the nature of the plaintiff’s claim the learned trial Judge held as follows at page 137 lines 11 – 17:-

“The court is of the candid view that the nomenclature of torts will not be allowed to blur its consideration of the clear averred facts of the case before it. The court in the circumstances holds that it is irrelevant in the determination of this case whether the claim is based on tort of detinue or it is based on tort of trespass.”

The question that may now be asked is, from the pleadings of the parties and evidence led at the trial, was the respondent’s cause of action one founded on the tort of detinue as contended by the appellant or was it one founded on trespass as argued by the respondent? Is the nomenclature necessary in the determination of this case?

Detinue is a form of action which lies for the recovery, in specie of personal chattels from one who acquires possession of them lawfully, but retains it without right, together with damages for the detention. Therefore all action in detinue lies where:- (1) the plaintiff has an immediate right to the possession of the goods or chattels., and (2) the defendant who is in actual possession of those goods fails or refuses to deliver them up after the plaintiff has made a proper demand for their return. See Benin Rubber Producers Co-operative Marketing Union Ltd. v. Ojo (supra); J.E. Oshevire Ltd. v. Tripoli Motors Ltd. (supra) and Ordia v. Piedment Nigeria Ltd. (supra).

Paragraphs 3, 4, 5, 13, 14 and 15 of the respondent’s amended statement of claim are relevant. The said paragraphs are hereby reproduced:-

“3. The plaintiff aver that sometime on 1/11/96 the defendant and/or through its servants or agents maliciously and unlawfully entered plaintiff’s said f residence at No.1 Akpore Street, Ugborikoko seized and carried away plaintiff’s properties all then in use and good condition as follows: Executive chairs, 6 Dinning chairs, 1 Dinning table, 1 rug, 1 Coloured Television set (Philips), 1 Wooden shelf, 2 JVC loudspeakers, 1 Philips video recorder. 1 JVC Amplified, 1 Akai deck, 1 Leo Refrigerator, 1 Eff gas cooker, 1 Gemmi equalizer, 1 Radio turner and a Honda record Saloon car (Registration No. LA 9160 MM). These items were listed in an inventory dated 1/11/96 signed by the defendant, plaintiff and others. A copy, of the inventory will be relied on at the trial.

4. The defendant seized plaintiff’s said properties in a purported execution of a judgment against Nellie Green Nigeria Community Bank of Nigeria Limited in suit No. M/265/95 to which plaintiff is not a party plaintiff will rely on all processes in this suit at the trial.
5. At the time of seizure of plaintiff’s property, especially his Honda Car with registration No. LA 9160 MM plaintiff had concluded arrangements to hire out the said car to Makumaza Client Services, Benin City at the rate of N3,500.00 per day and had infact received the sum of N105,00.00 as advance payment for 30 days. A copy of this hire agreement dated 20/10/96 will be relied on at the trial of this action.
6. In all, the defendant caused plaintiff’s properties to be seized and detained at the High Court premises, Warri from 1/11/96 to 21/1/98 when plaintiff went to collect them.
7. At collection, plaintiff’s car which was in perfect condition at the time of seizure was in such a bad state of disuse due to its exposure to the weather elements that it could not start and upon examination by plaintiff’s mechanic the following were found to be damaged/destroyed and needed repairs or replacement …
8. On 1/11/96, when defendant and its agents and/or servants forced their way unlawfully into plaintiff’s house and attracted a large crowd in the estate and nearby street as his properties were being carried away, in the defendant’s vehicles. Plaintiff was portrayed as a debtor and/or criminal and thus seriously, embarrassed and defamed.”

The respondent gave evidence in support of his claim as contained in page 25 lines 24 – 27, page 26 lines 1-23, and page 27 lines 12 – 20 of the record of appeal as follows:-

“I can remember 1/11/96. On that day myself, my wife and my, three children woke up that beautiful day at about 9.30am. I heard knock on my, door. When I saw about 6 policemen in uniform in front of the door together with others in plain cloths.

As I opened the door, they came into my flat and showed me a document on which it is boldly written, Nellie Green Nigeria Limited (2) Ugheli Community, Bank Limited and I was able to read from the document shown to me that judgment was obtained by the defendant and that further state that it is to fifa the property of Nellie Green Nigeria Limited. I told them that I am Nelson Okonedo and Nellie Green has no business in my house. Despite my protest, they did not heed and they went on to carry my sitting room chairs, dinning table, my electronics comprising Philip TV, a tape recorder, one tunnel’, 2 J.V.C loud speakers, one germini equalizer; my rug, gas cooker, my fridge and wall unit which houses the electronics. They moved these properties into their waiting van parked inside the house. What I mean by “they,” I mean the defendant and its agents which include court bailiffs, shell personnel and uniformed policemen. Among property carried by the defendant and its agent include my Honda Accord with registration No. LA 960 MM. The above properties were carried away by the defendant and its agents.

At the time the car was taken by the defendant, the car was in perfect motorable condition and at the time I had entered an agreement which was signed on the 20/10/96 between myself and a company, called Mukumaza Client Services, Benin City to contract the car out to the company for a period of six months in respect of which a deposit of N105,000 at the rate of N3,500 a day was paid to me and the company would have the car for the period of six months.”

From the pleadings of the respondent as reproduced above and the evidence adduced by him in support, can it be said that the respondent’s cause of action is one founded on the tort of detinue as contended by the appellant? My answer is surely in the negative. I will come to this issue later.

The contention of the respondent that the action was founded on trespass is more in tune with the pleadings of the respondent and evidence in support of the claim. The tort of trespass to chattel may be defined as a direct and wrongful interference with a chattel in the possession of the plaintiff, such interference being either intentional or negligent. The interest of the plaintiff which the law protects are:- (1) his interest in retaining the possession of the chattel; (2) his interest in the physical condition of the chattel and (3) his interest in protecting the chattel against intermeddling. Trespass to chattels may take various forms such as destroying damaging or wrongful moving them from one place to the other. See Ogunbiyi v. Adewunmi (supra); Onagoruwa v. Adeniji (supra) and Oyerogba v. Ido Local Government (supra) all cited by the learned respondent’s counsel.

The contention by the appellant that the action was founded on detinue is not tenable. The action on detinue is a remedy founded upon the delivery of the goods by the owner to another to keep, who afterwards refuses to redeliver them to the bailer, and to maintain an action in detinue, it is necessary that the defendant should have come lawfully into the possession of the chattel, either by delivery to him or by finding it. In the instant case, the learned trial Judge found that the ownership of the property as contained in exhibit A is in the respondent and is beyond further contest and proof and also hold that the execution was recklessly done and in the process quite wrongful and unlawful. It is therefore my candid view that the action of the respondent as demonstrated above is that of trespass to the chattel of the respondent. This is so by the reason of the fact that it was established that the respondent was the owner of the chattels in exhibit A and that the chattels were wrongfully and unlawfully interfered with by the appellant which gives the respondent a right of action in trespass as against detinue which does not lie when the property had been tortious taken as in the instant appeal.

It is further contended by the appellant that the respondent has no cause of action. What then is the meaning of a cause of action? The Supreme Court in Akilu v. Fawelzinmi (No.2) (1989) 2 NWLR (Pt.102) 122 at l69 said that,

“Cause of action has been held to mean every fact which is material to be proved to entitle the plaintiff to succeed, or all those things necessary to give a right to relief in law or equity. See Bello v. A.-G., Oyo State (1986) 5 NWLR CPt.45) 826.”

See also S.P.D.C. of Nig. Ltd. v. Farah (supra) and Wema Bank Ltd. v. International Fishing Co. Ltd. (supra) both cited by the learned appellant’s counsel. Cause of action had also been defined as “simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person” or “the facts which constitute the essential ingredients of an enforceable right or claim. In other words, cause of action is in effect, the fact or combination of facts which gives rise to a right to sue and it consist of two elements – the wrongful act of the defendant which gives the plaintiff his cause of complaint and the consequent damage. In the instant appeal, the wrongful execution of the respondent properties and the consequent damage suffered by the respondent gives the respondent the right to sue. The law is now trite that, where there is a cause of action and a relief is properly claimed, the plaintiff cannot be refused it simply because he has applied for it under a wrong law. See Bello v. A.-G., Oyo State (supra). Therefore a claimant who has established a legally recognized injury cannot be turned back on the ground that he has not stated or has wrongly stated the head of law under which he is seeking a remedy. The Supreme Court also per Onu, JSC, in Labode v. Otubu (supra) at page 234 held that a wrong must not necessarily be remediable under a known head of tort before it is justiciable. In the instant case, the learned trial Judge was right when he held that the nomenclature of torts will not be allowed to blur its consideration of the clear averred facts of the case before it. That it is irrelevant in the determination of this case whether the claim is based on tort of detinue or is based on tort of trespass. I do not see this pronouncement as an abdication of lawful duties to make findings on the issue by the learned trial Judge as submitted by the learned senior counsel for the appellant. The stand of the learned trial Judge cannot be faulted. The court today is concerned with doing substantial justice on the matter before it, rather than place reliance on hard rules of technicality based on the principle of law that where there is a right, there is a remedy. The maxim being ubi jus, ibi remedum. The distinction that the trial court is called upon to make and subtitles have no substance and justification in them, but are nothing more than a dangerous inheritance from the days when forms of action and of pleadings held the legal system in their clutches. Based on the forgoing issue No. one is resolve against the appellant and in favour of the respondent.

Issue No.2 is, whether the learned trial Judge was tight in awarding special damages to the respondent. The learned trial Judge awarded special damages to the respondent in the following terms:-

1. The cost of repair of the car N160,900.00 (One hundred and sixty thousand nine hundred Naira).
2. The cost of earning from the car hire agreement, N633,500.00k (Six hundred and thirty three thousand, five hundred Naira)
3. The payment of solicitor’s fee for recovering the N105,000.00k deposited for the car hire total N804,400.00k (Eight hundred and four thousand, four hundred Naira)

The sum total of the “appellant’s argument on this issue was that the learned trial Judge was wrong to have made the award placing reliance on the following cases:- Cross Lines Ltd. v. Etukudo Thomson (supra): Ordia v. Piedmont (supra); Chief Asuquo Okam v. Chief James Ntukidem (supra); Humu Mumu v. Asen Ager (supra); A.C.B. Ltd. v. Neka B.B.B. Mfg. Co. Ltd. (supra); Obasuyi v. Business Ventures Ltd. (supra); Amadi v. Essien (supra), Guinness Nigeria Plc v. Nwoke (supra) and Benin Rubber Producers Co-operative Marketing Union v. Ojo (supra).

It is settled law that special damages must be strictly proved.

Strict proof here means no more than adducing credible evidence in support of the claim. It does not mean an unusual proof or proof beyond reasonable doubt. See A.C.B. Ltd. v. Neka B.B.B. Nig. Co. Ltd. (supra). Strict proof in the con of special damages means no more than a proof as would readily lend itself to quantification or assessment. Where a plaintiff pleads special damages with particularity and give some evidence of the special damages and the defendant does not challenge or contradict the evidence given, the plaintiff has discharged the onus of proof and unless the evidence given is of such a quality that no reasonable tribunal can accept it, the evidence ought to be accepted. This is so because where evidence is called by the plaintiff in a civil case is neither challenged nor contradicted, his onus of proof is discharged on minimal proof. Guinness (Nig.) Plc v. Nwoke (supra) what this means is that the court should give consideration to the evidence offered in support of a claim for special damages and if the accepted evidence possess such a probative value as preponderates the case in favour of the person then the award would be justified. In the instant appeal, the appellant did not lead any evidence to controvert the evidence of the respondent on the condition of the damage to the respondent’s properties. The respondent in his evidence in chief stated thus at page 29 line 30 and page 30 lines 1-14 of the record of appeal.

“On the 8th day after the judgment myself and L.U. Ovromoh, Esq. came to court premises, after the expiration of the seven days contained in the order of the said judgment, and carried away my properties in course of which we discovered that the properties were badly damaged because they were exposed to harsh weather of sun and rain. The executive chairs were torn; dinning chairs broken; the four tyres of my car were badly damaged; some of the things in the car were damaged and require replacement; the thulb was bad; the master cylinder was eaten up by rust; the body of

the car was eaten up by rust and the paint of the car was washed away; the engine of the car could no longer start and upon examination by the mechanic it was found that the engine needed to be overhauled.”

The respondent tendered exhibits ‘J’ and ‘J1’ as receipts for the payment of the bill for the repairs on the vehicle. He further testified he lost revenue that could have accrued from the car hire which was put at N633,500.00 at the rate of N3,500 per day. In his evidence PW1, the mechanic that repaired the respondent’s car testified at page 47 lines 1 – 8 of the record of appeal as follows:-

‘The engine was overhauled and put in good order. We worked on the brakes and the general system, and the body, works; panel beating of the car; uphostry and spraying. I carried out the repairs of the vehicle. Plaintiff paid fully for the work, I did on the car. I issued the plaintiff receipt for the money, he paid to me. Exhibits J and J 1 are my receipts which I issued for the repairs of the car of the plaintiff.”

It is submitted by the respondent’s counsel that by the pleadings and evidence before the lower court, the respondent satisfied the requirement that special damages must be proved, placing reliance on the following cases. Nzeribe v. Dave Engr. Co. Ltd. (supra) and Tab Ass Ltd. v. Akwuzie (supra).

Having stated the law on proof of special damages, it is my view from the facts and evidence led, the respondent has satisfied the requirement of the law on strict proof of special damages and the learned trial Judge was right when he held at page 160 lines 14 – 28 and page 161 lines 1 – 4 of the records as follows:-

‘The court accepts the evidence of the plaintiff and DW1 that plaintiff asked the PW1 to carry out the repairs of the Honda Accord to return same into working condition. The court accepts the evidence of the plaintiff that PW1 issued the exhibits J and J1 which he settled as cost of the repairs which plaintiff paid. Besides exhibits J and J1, PW1 testified that he received the said sum in exhibits J and J1 as the full bills he issued to the plaintiff through his Secretary for the repairs he carried out at the end of the repair. He testified that he was commissioned to carry out the repairs and he supplied the parts for the repairs. His evidence was not shaken by cross-examination nor was it controverted and the court believes PW1 as truthful witness. The court accepts the evidence and amount stated in exhibits J and J1 as paid to the PW1 as he confirmed exhibits J and J1 are for the total sum of N160,900.00 (One hundred and sixty thousand nine hundred Naira).”

On the lost of earning from the car hire agreement, the learned trial Judge found as follows:-

‘The evidence of PW3 was not controverted and the court believes PW3 as truthful witness. The court in the circumstances accepts the claim of the plaintiff for the loss of earning from the car hire agreement of N633,500.00 (six hundred and thirty three thousand five hundred Naira) for the period 1/11/96 – May, 1997. Based at the daily rate of N3,500.00 (Three thousand five hundred Naira)”

The appellant contended that the court ought to take judicial notice under section 74 of the Evidence Act with regard to the evidence of PW1 of the fact that even the most reputable car repairer/sales like UTC and Mandilas do not carry out panel beating works, spraying and upholstery as was done by PW1 which he contended was too wide for a single roadside motor mechanic. With due respect to the learned senior counsel, the evidence of PW1 was unchallenged and uncontroverted even under cross-examination and it is not the business of the court to indulge itself in speculation. That is not the business of the court.

On the car hire agreement, the court held that the seizure and execution of the car frustrated the car hire agreement. The court found that the car hire agreement exhibit C particularly clauses 4, 5 and 7 thereof remove the force from the contention of learned counsel for the appellant that the claim for the car hire agreement was speculative because it is for future and fraught with uncertainties of accident etc. Clauses 4, 5 and 7 provide as follows:-

4. This agreement shall commence on 1/11/96 and shall be on for a first period of 6 months subject to afterwards to review by the pat1ies.
5. That for the declaration of the agreement the hirer shall be entitled to keep the car in his possession and in good condition.
6. The hirer should keep the car comprehensively insured in the name of the owner and pay all premiums when due.

From the contents of the above clauses, I agree with the learned trial Judge that the contingencies complained about by the appellant were taken into consideration in exhibit C and the take off date of the agreement was 1/11/96 when the car was taken on execution.

On the contention of the appellant that the lower court ought to have received evidence on the value of scrapped and replaced parts of the vehicle, I agree with the submission of the learned counsel for the respondent that there is no pleading from the either side on scrapped or replaced parts of the vehicle and that no evidence was led nor was any received on the issue of the scrapped or replaced pans of the vehicle as there was no pleading to sustain such evidence.

This agreement is of no moment.

On the award of N10,000.00 (Ten thousand Naira) special damages for solicitors fee, I did not agree with the submission of the learned counsel for the appellant that the award of special damages for solicitor’s fee is unknown to our law. With respect to the learned counsel, the case of Guinness (Nig.) Plc v. Nwoke relied upon by the appellant’s counsel in support of his submission that award of special damages for solicitors fee is unknown to law can be clearly distinguished from the facts and circumstances of the present appeal. In Guinness (Nig.) Plc, the cross-appellant’s case was that, the cross-appellant solicitor’s fee were in the nature of special damages and that same has been pleaded and testified on them and backed up his testimony by receipts. In considering this issue, the Court of Appeal per Ibiyeye, JCA agreed with the submission of learned counsel but questioned whether this head of claim arise as a result of damage suffered by the cross-appellant in the cause of and transaction between him and the cross-respondent and held that a reasonable tribunal such as this court will definitely opine that the quality of evidence adduced by the cross-appellant on this score fell below the standard of acceptability because the circumstance making up the so called “special damages” occurred after the cause of action in this case had arisen. That it is also unethical and an affront to public policy to pass on the burden of solicitor’s fees to the other party, in this case the cross-respondent.

In the instant appeal, a distinction can be clearly drawn with the case of Guinness (Nig.) Plc. While in the Guinness (Nig.) Plc what was claimed as special damages was “his solicitor’s fee” cross-appellant’s solicitors fee, a staggering sum of N500,000.00 which arose after the cause of action had arisen. In the instant appeal, the claim is not for “his solicitor’s fee”, but what he was made to pay to the Makamuza Client Services solicitor to have matter for the breach of car hire agreement settled out of court, the sum of N10,000 which he claimed as special damages. This fact was established also by the evidence of PW3, the legal practitioner, Mr. Christopher Agheja. The lower court accepts as proved the payment of N10,000 (Ten thousand Naira) which PW3 confirms in his evidence under the claim for special damages. The award of N10,000.00 (Ten thousand Naira) special damages is therefore proper and not one that can be termed as unethical and an affront to public policy. On the whole, issue No. 2 is resolved against the appellant and in favour of the respondent.

Issue No.3 is, whether the trial court was right to have awarded the plaintiff general damages of N2,000.00 (Two million Naira) after awarding special damages of N804,400.00 (Eight hundred and four thousand four hundred Naira) to him.

The respondent contended that the respondent has the burden to testify separately to the claim of general damages as averred in the pleading. The learned counsel for the respondent contended that the respondent has no onus placed on him to prove general damages. In Dumez Nigeria Ltd. v. Ogboli (supra) at page 249 – 250 the court held that:-

“It is axiomatic that special damages must be strictly proved and unlike general damages where, if the plaintiff establishes in principle his legal entitlement to them, a trial Judge must make his own assessment of the quantum of such general damages and on appeal to this court, such general damages will only be altered if they were shown to be either manifestly too high or awarded on a wrong principle, so far as special damages are concerned a trial Judge cannot make his own individual assessment but might act strictly on the incidence before him which he accepts as establishing the amount to be awarded.”

The primary object of an award of damages is to compensate the plaintiff for the wrong suffered by him. In the instant appeal, it is not in dispute that the respondent suffered some wrong and inconveniences as a result of the wrongful and unlawful attachment of his property by the appellant. The law is well settled that in order to justify interfering with any decision of a trial court on the amount of damages awarded, it is necessary for the appellate court to be convinced that either:-

(a) that the court acted upon some wrong principles of law; or

(b) that the amount awarded is so extremely high or so very small as to make it in the judgment of the appellate court an entirely erroneous estimate of the damages to which the plaintiff is entitled.”

The test should be an objective one whether the trial Judge reached the judgment at first instance on a correct principle of law and thereby reached a correct estimate of damage. However, the appellate court will decline to reverse the finding of a trial Judge as to amount of damages merely because it thinks that if he had tried the case in the first instant it would have given a lesser sum, see Nzeribe v. Dave Engr Co. Ltd. (1994) 8 NWLR (Pt. 361) 124, Agaba v. Otubusin (1961) 2 SCNLR 13. In the instant appeal, the award of N2,000,000.00 (Two million Naira) general damages cannot in the circumstances of this case be said to be extremely too high or that the Judge acted on a wrong principle of law. The cases cited in support of this issue by the learned counsel for the appellant were case decided on the tort of detinue where the redress is not strictly for the wrong but for the return of the chattel or its value and loss of use of the chattel. See Chief Paul Ordia v. Piedmont (Nig.) Ltd. (supra).

It is further contended by the appellant that apart from awarding special damages of N804,400.00k, the learned trial Judge also awarded N2,000,000.00k in favour of the respondent as general damages. It is thus submitted that the court must not make an award for general damages where such will amount to compensating the plaintiff twice for a simple loss.

The question that does arise is, whether the award of N2,000,000.00k general damages by the trial court amount to double compensation in view of the award of special damages by the trial court?

The award of general damages unlike special damages which must be strictly proved, the award of general damages is a matter for the trial court which is substantially a court of facts and it is within its province to determine the quantum of such damages based on the circumstances on which liability is founded. See UAC (Nig.) Plc v. Irole (2001) 5 NWLR (Pt. 707) 583; Bassil v. Fajebe (1990) 6 NWLR (Pt. 155) 172.

The law no doubt frowns at double compensation in award of damages to a successful litigant. In the instant case, the claim of the respondent before the trial court was of trespass and having established ownership and unlawful interference, the award of N2,000,000.00 general damages by the learned trial Judge in addition to the award of special damages cannot and did not amount to double compensation in the circumstances of this case. The respondent is entitled to succeed on both his claims of special and general damages. The award of general damages to the respondent is not vitiated by any of the circumstances that would entitle an appellate court to interfere with an award of damages. In the circumstance, it is immaterial that the attachment of respondent’s property was done by court officials. The respondent is entitled to the award of damages for trespass. Consequently issue No.3 is also resolved against the appellant and in favour of the respondent.

The last and final issue for determination in this appeal is issue No.4 and it is, whether the learned trial Judge proceeded on the right principle and properly evaluated the evidence adduced at the lower court before entering judgment for the respondent.

The appellant contended that the learned trial Judge failed to properly appraise, assess and determine the probative value of the evidence adduced by the respondent.

Evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a court of trial which saw, heard and duly assessed the witnesses. Where a trial court unquestionably evaluates the evidence and justifiably assesses the facts the duty of the court of Appeal is to find out whether there is evidence on record on which the trial court could have acted. Once there is sufficient evidence on record from which the trial court arrived at its findings of fact, the Court of Appeal cannot interfere. The findings of facts made by a trial court are entitled to respect by an appellate court when it is clear that the trial court has adequately performed its primary duty of evaluating and ascribing probative value to the evidence before it. In such circumstances such findings are to be approached by an appellate court with due caution and not on the basis that it would or might itself found otherwise. The essential consideration is that there is enough evidence on record from which the trial court’s finding can be supported. See Joe Golday Co. Ltd. v. CDB Plc (2003) 5 NWLR (Pt. 814) 586 and Ezekwesili v. Agbapuonwu (2003) 9 NWLR (Pt. 825) 337. In the instant appeal, looking at the totality of the case of the parties before the trial court including the pleadings and evidence adduced before the trial and all the exhibits tendered, it is my candid view that the learned trial Judge dispassionately considered the case of the parties before him and came to the conclusion he did. The finding of the learned trial Judge that the appellant failed to controvert the evidence of the respondent as to the state of the respondent’s car since the evidence that the car was in good condition is a product of a proper appraisal and evaluation of the evidence adduced before the trial court. The learned trial Judge did not find that the property attached belonged to Nellie Green Nig. Ltd. The ownership of the goods attached by order of the court contained in exhibit H is said to belong to the respondent and not Nellie Green Nigeria Ltd. There is sufficient evidence on record to justify the finding of the learned trial Judge and such findings by the court are entitled to respect and this court cannot interfere. This issue is also resolved against the appellant.

Based on the foregoing, it is my view that this appeal lacks merit and should be dismissed and it is accordingly dismissed by me. There shall be cost to the respondent assessed at N5,000.00k.

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Other Citations: (2007)LCN/2167(CA)