WEMA BANK PLC v. ARISON TRADING &ENGINEERING COMPANY LTD & ANOR
CITATION: (2015) LPELR-40030(CA)
In the Court of AppealIn the Ibadan Judicial Division
Holden at Ibadan
ON FRIDAY, 9TH OCTOBER, 2015Suit No: CA/I/363/2013
Before Their Lordships:
HARUNA SIMON TSAMMANI Justice, Court of AppealMUDASHIRU NASIRU ONIYANGI Justice, Court of AppealNONYEREM OKORONKWO Justice, Court of Appeal
BetweenWEMA BANK PLC - Appellant(s)
And1. ARISON TRADING & ENGINEERING CO. LTD.2. CHIEF AIKULOLA - Respondent(s)
RATIO DECIDENDI
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1 ACTION - DECLARATORY RELIEF(S): Duty of a party seeking a declaratory relief"To succeed, the plaintiff must rely on the strength of his own case, as declaratoryorders are not granted even on the admission of the Defendant; though where aweakness in the Defendant's case supports the case of the Plaintiff, such a plaintiffmay rely on it to strengthen his own case. Ultimately, the burden is on the plaintiff allthrough to prove by credible evidence that he is entitled to the declaration sought-Thus, in the case of Dumez Nigeria Ltd v. Nwakhoba (2008) 18 NWLR (Pt.1119) p.361,Mahmud Mohammed, JSC (as he then was) held that:"The law on the requirements ofthe plaintiff to plead and prove his claims for declaratory reliefs on the evidencecalled by him without relying on the evidence called by the Defendant is indeed wellsettled. The burden of proof on the plaintiff in establishing Declaratory Reliefs to thesatisfaction of the Court is quite heavy in the sense that such Declaratory Reliefs arenot granted even on admission by the Defendant where the Plaintiff fails to establishhis entitlement to the declaration by his own evidence."Basically therefore, in claimsrelating to declaratory reliefs, the burden is on the plaintiff to establish his claim onthe strength of his claim and should not rely on the weakness of the defence. See,Nwokidu v. Okanu (2010) 3 NWLR (pt.1181) p.362; Alechendu v. Oshoke (2002) 9NWLR (Pt.773) p.521 at 535; Dantata v. Mohammed (2000) 7 NWLR (Pt.664) p.176and Senator Julius Aliucha & Anor v. Martin Nwanscho Elechi & Ors (2012) LPELR -7823 (SC)." Per TSAMMANI, J.C.A. (Pp. 17-18, Paras. B-C) - read in context
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2 TORT - DETINUE: Nature of the tort of detinue; What must be established for aplaintiff to succeed in a claim for detinue"In the case of Zenon Pet & Gas v. Idrisiyya Ltd (2006) 8 NWLR (Pt.982) p.221 at 245paragraphs E - G, M. D.18 Muhammad, JCA (as he then was) describes an action indetinue in the following words:"An action in detinue is brought for recovery of thespecific personal chattel, ...wrongly detained from the person entitled to thepossession of them, and /or for damages occasioned by the wrongful detainer, theAppellant herein. Accordingly, detinue is based on the Defendant's wrongful detentionof plaintiff's chattel coupled with the Defendant's refusal to deliver up and restorepossession of the chattel following the Plaintiff's demand. The redress the Plaintiff isentitled to is strictly not for the wrong but for the return of the chattel he had beendispossessed, or the value of the chattel if same had been destroyed as well as theloss of use of the chattel."My Lord, Ogunbiyi, JCA (as he then was) at page 249 of thecase cited above, also describes the tort of detinue as consisting in the wrongfulwithholding of the Plaintiff's goods. That it does not matter whether the person or thewrong doer, i.e. the detainee of the goods obtained possession of the detained goodslawfully or illegally or by seizure, and that what is relevant is the wrongful retention ordetention of the chattel after demand. My Lord therefore concluded that:"It istherefore material that, to sustain an action in detinue, there must be demand by theplaintiff and on receipt of this notice the persistence in keeping the chattel by theDefendant would give rise to an action in detinue."A claim in detinue is therefore onethat is predicated on a possessory right or action that seeks recovery of personalchattels illegally or unjustly retained or detained. The claim in detinue thereforegerminates from the act of delivery of goods by the owner to another to keep, andwho afterwards fails or refuses to deliver back the chattel or goods to the true owner.In an action or claim for detinue therefore, it is necessary that the Defendant shouldhave come into possession lawfully either by finding it or the delivery of same. It is anaction which lies for the recovery of property from one who has acquired possessionof it lawfully but retains same wrongfully, illegally or without a right to continue insuch possession, upon demand by the person entitled to possession. The Defendantshould therefore not have any reasonable justification for keeping or detaining thechattel. See F.B.N. Plc v. Sangonuga (2007) 3 NWLR (Pt.1021) p.230; NACENN (Nig)Ltd v. B.A.P. Ltd (2011) 11 NWLR (Pt.1257) p.193 and Anuruba v. E.C.B. Ltd (2005) 10NWLR (Pt.933) p.321. To succeed in a claim in detinue therefore, the plaintiff mustadduce credible evidence to establish the following facts:(i) That he is the owner ofthe property chattel in question(ii) That he has an immediate right to possession ofthe property or chattel;(iii) That the Defendant is in actual possession of the propertyor chattel;(iv) That he has made proper demand on the Defendant to deriver uppossession of the property or chattel to him; and(v) That the Defendant, has, withoutlawful excuse, refused or failed to deliver up the property or chattel to him.It would beseen therefore that the gravamen or centre-pin in an action in detinue is the wrongfulretention of the chattel."Per TSAMMANI, J.C.A. (Pp. 18-21, Paras. F-E) - read in context
3 APPEAL - UNAPPEALED FINDING(S): Effect of unappealed findings"It is the law that any finding of fact by a trial Court on a vital point in issue, for whichthere is no appeal, is deemed established. Such fact remains valid, subsisting andbinding on the parties. See Ebenigbe v. Achi (2011) 2 NWLR (Pt.1230) p.65;L.H.A.B.U.M.B. v. NYIB (2011) 12 NWLR (Pt.1260) p.1 and S.P.D.C.N. Ltd v. Ejebie(2011) 17 NWLR (Pt.1276) p.324."Per TSAMMANI, J.C.A. (P. 27, Paras. B-C) - read incontext
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4 TORT - DETINUE: Remedies open to a plaintiff who has a right of action in detinue"...However, when a person's chattel has been unlawfully detained by another person,the person who is denied possession or use of that chattel, has several remediesavailable to him; and such remedies include;(a) specific return of the chattel anddamages for its detention; or (b) The value of the chattel as assessed and alsodamages for its detention; or (c) Return of the chattel or recovery of its value asassessed and also damages for its detention.It therefore means that in an action fordetinue, a successful plaintiff will be entitled to an order of specific return of thechattel detained; or its value in default of such return in circumstances where thechattel has been destroyed or otherwise unavailable. See NACENN (Nig.) Ltd v. B.A.P.Ltd (supra) at 208 - 209, paragraphs G - A; Julius Berger (Nig) Plc v. Omogui (2001) 15NWLR (Pt.736) p.401 and Zenon Pet & Gas v. Idrissiya Ltd (supra) at p.245 paragraphsF - H." Per TSAMMANI, J.C.A. (Pp. 34-35, Paras. C-E) - read in context
5 DAMAGES - SPECIAL DAMAGES: Whether anticipated profit is in the class of specialdamages that must be proved"It is the law that anticipated profit is in the class of special damages which must bestrictly proved by evidence. See A.G.; of Oyo State & Anor v. Fairlakes Hotels Ltd &Anor (No.2) 12 S.C.N.J. p.1.."Per TSAMMANI, J.C.A. (P. 37, Paras. D-E) - read in context
6 TORT - DETINUE: Options available to a person suing in detinue"It is the trite law therefore that, a person suing in detinue has the option to sue forreturn of damages the chattel in question and for the wrongful detention; or sue forit's value."Per TSAMMANI, J.C.A. (P. 38, Paras. B-C) - read in context
7 DAMAGES - DAMAGES FOR DETENTION: The nature of damages that a plaintiff isentitled in an action in detinue"Generally the damages a claimant is entitled to would be nominal or generaldamages for the detention where the chattel has been returned. Such damage isgenerally presumed. where special damages are claimed, they must be specificallyproved by evidence. See C.D.C. (Nig) Ltd v. SCOA (Nig) Ltd (2007) 6 NWLR (Pt.1030)p.300; NACENN (Nig.) Ltd v. B.A.P. Ltd. (supra)."Per TSAMMANI, J.C.A. (P. 38, Paras. C-E) - read in context
8 ACTION - PLEADINGS: Whether parties are bound by their pleadings"It is the law that, parties are bound and limited in their claims to the pleadings.Accordingly, a Court should not award a relief which is not claimed by any of theparties. This is because, a Court of Law is a Court of Justice and should thereforealways administer justice according to law and not according to sentiments."PerTSAMMANI, J.C.A. (P. 39, Paras. A-B) - read in context
9 WORDS AND PHRASES - "DETINUE": Meaning of "Detinue""By way of definition Detinue is a wrongful retention of the possession of goods andthe wrong arises upon the detention of the chattel, after demand for its return by theperson entitle to it immediate possession has been made. See Julius Berger NigeriaPlc. v. Omogu (2001) 15 NWLR (Pt.736) page 401 at 415 - 416 para H-A."PerONIYANGI, J.C.A. (Pp. 41-42, Paras. F-A) - read in context
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10 TORT - DETINUE: What is an action in detinue based on"It is trite that in detinue there must be a demand followed by a refusal. An actioncannot be founded only on the demand by the claimant without a correspondingrefusal. See Chigbu v. Tonimas (Nig.) Ltd. (2006) 9 NWLR (Pt.984) page 186 atpg.210."Per ONIYANGI, J.C.A. (P. 42, Paras. D-E) - read in context
11 PRACTICE AND PROCEDURE - REASONABLE TIME: The concept of reasonable andwhat it entails"...in Barrister Amanda Pam & Anor v. Nasiru Mohammed & Anor (2008) 5 - 6 SC (Pt.1)83, it was stated that:"Reasonable time in its nebulous content cannot be determined in vacuo but inrelation to the facts of each case because what constitutes a reasonable time in eachcase may not constitute reasonable time in another case".And in Moses Abiegbe & Anor v. Edhereniu Ugbodume & Ors (1973) 1 sc 103 it wasstated that:"What is a reasonable time to do some act or acts depend on many circumstances fordifferent occasions". Per OKORONKWO, J.C.A. (P. 46, Paras. C-F) - read in context
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HARUNA SIMON TSAMMANI, J.C.A. (Delivering the
Leading Judgment): This appeal is against the judgment
of the Ogun State High Court, sitting at Abeokuta in Suit
No: AB/25/2009, delivered by The Hon. Justice P. A.
Onamade on the 24th day of June, 2013.
The Respondents in this appeal were the Claimants at the
Court below, while the Appellant was the Defendant. The
Respondents as Claimants had taken out a Writ of
Summons against the Appellant, wherein they prayed the
Court below to grant them the following reliefs as per
Paragraph 37 of the Amended Statement of Claim:
"38. WHEREOF the Claimants claim against the Defendant
as follows:
(i) Declaration that the detention of the 2nd Claimant's title
documents registered as No.59 at page 59 in Volume 1853
of the Lands Registry, Ibadan, by the Defendant on account
of a debt long settled inspite of repeated demand is illegal,
unlawful and unconscionable.
(ii) The sum of N285,000,000.00 (Two Hundred and Eight-
Five Million Naira) being special damages for the losses
suffered by the Claimants owing to the act of the
Defendant.
PARTICULARS
(a) Loss of projected earnings from November, 2008 to
March, 2009 = N270,000,000=00
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(b) Cost of preparation of feasibility report and
procurement of materials on site = N15,000,000=00
(iii) The sum of N500,000,000=00 (Five Hundred Million
Naira) as general damages for the Defendant's wrongful
detention of the Claimant's document.
(iv) Interest of 10% on the above sums from the date of
judgment till same is liquidated."
Briefly, the Plaintiffs/Respondents' claim is that, sometime
in 1981, the 1st Respondent applied for a loan of one
hundred and fifty thousand naira (N150,000=00) from the
defunct National Bank of Nigeria to enable it execute
certain contract projects. That as condition for the grant of
the loan, the 1st Respondent was requested to deposit title
documents of landed property. Accordingly, to satisfy that
condition, the 2nd Respondent as chairman/Managing
Director of the said 1st Respondent title released the
documents of his landed property registered as No.59 at
page 59 in volume 1853 at the Lands Registry office,
Ibadan to the 1st Respondent. The 1st Respondent then
deposited the title deeds of that property with the
Appellant as security or collateral for the loan by executing
a Deed of conveyance in favour of National Bank of Nigeria
who
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then perfected the mortgage.
The facts as disclosed in the pleadings and evidence
adduced by the parties disclose that a dispute arose in the
relationship between the National Bank and the
Respondents. As a result of the dispute the Respondent
instituted an action against National Bank in suit No:
AB/200/96. Judgment in that case was delivered on the
10/9/1999 wherein, the Court adjudged the Respondents to
be indebted to the Appellant to the tune of Seventy-five
Thousand and Eighty-one Naira (N75,081.00) only. That on
the 28/9/1999, the Respondent paid the sum of N74,081.00
to National Bank on the belief that such payment was in
total satisfaction of the judgment debt. That on the
04/11/1999, the 2nd Respondent then wrote the National
Bank of Nigeria Ltd intimating it of such payment and
further demanded for a return of the title deeds of the land
conveyed to them as collateral for the loan.
It is also the case of the Plaintiffs/Respondents that, due to
bank mergers and acquisitions in the banking industry
National Bank of Nigeria Plc was acquired by the Appellant
(Wema Bank). That the Respondents therefore, through
their solicitor, Chief Afe
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Babalola, SAN & Co again wrote the Appellant vide fetters
dated 28/2/2006 and 18/9/2008 demanding for the release
of the title documents, yet the Appellant failed to oblige
them. That the Respondents however discovered later on,
that the amount earlier paid to National Bank of Nigeria
Ltd in satisfaction of the judgment debt it owed the
Appellant was short by One Thousand Naira (N1,000=00)
only, which they caused to be paid to the Appellant. That,
after making the payment, the Respondent sent a Bank
Draft for the payment to the Appellant through their
solicitors and also made a further demand for the release of
the title deeds, but the Appellant again failed to release the
title deeds.
According to the Plaintiffs/Respondents, the 2nd
Respondent had made two separate applications for loans
from First Bank of Nigeria and Astra Polaris Micro Finance
Bank Nigeria Ltd in the sums of N35,000,000=00 and
N25,000,000=00 respectively, to enable him finance his
business which was almost collapsing due to lack of
finance. That the two banks both requested as one of the
conditions for the grant of the loan, the conveyance to them
of title deeds of landed property for
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security for the loan. That, consequent upon that, the
Respondents again wrote the Appellant through their
counsel by letter dated the 20/10/2008 demanding the
immediate release of the title documents but the Appellant
refused and or neglected to release the said title
documents: That, the Respondents were left with no option,
than to institute an action before the Court below which
they did vide writ of summons and Statement of Claim
dated the 09/02/2009 and filed the 10/02/2009.
The Appellant as Defendant in the Court below, presented
her case through D.W.1. The Appellant then agreed that,
the judgment debt owed the Appellant by the Respondents
emanated from the judgment of the Court below in Suit
No:AB/200/96 delivered on the 10/9/99, to the tune of
Seventy-Five Thousand and Eight-One Naira, Seventy Kobo
(N75,081.70k). The Appellant however contended that
there were several correspondences from the Respondents'
counsel demanding for a release of the Deed of Conveyance
and that the Appellant have always let it be known to the
Respondents that the judgment sum was yet to be
liquidated. That it is when the entire judgment sum had
been fully liquidated that
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the process to return the documents would commence.
Furthermore, that the Respondents had not shown to the
Appellant any evidence of payment of the amount due to
liquidate its indebtedness as settled by the Court, so as to
enable it perfect its record in order to release the
documents. That, the sum of N74,081.70k claimed to have
been paid by the Respondents to National Bank of Nigeria
Ltd did not fully satisfy the judgment debt. The Appellant
therefore concluded that, the Respondents had not
liquidated fully the judgment debt, but that the title
documents were released to the Respondents on the
17/2/2009.
At the trial, the Respondents as Plaintiffs called three
witnesses and tendered several exhibits. The Appellant
called only one witness and also tendered some exhibits.
Counsel then filed and served Written Addresses, and in a
considered judgment delivered on the 24th day of June,
2013 the learned trial Judge adjudged the Appellant liable
in damages and awarded Fifteen Million, seven Hundred
and Fifty Thousand Naira only (N15,750,000.00) against
the Appellant in favour of the Respondents. The Appellant
being dissatisfied with the judgment has filed this
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appeal.
The first Notice of Appeal was dated on the 06th day of
August, and filed 2013 on the 7th of August, 2013. A
second Notice of Appeal was also filed on the 13/08/2013,
also within time. There is a third Notice of Appeal which is
undated but filed on the 29/08/2013 and signed by
Kolawole Esan; Esq. See pages 322 - 332 of the Record of
Appeal. At the hearing of the appeal on the 17/09/2015,
learned counsel for the Appellant withdrew the Notices of
Appeal dated the 06/8/13 and filed the 07/8/13; and that
dated and filed the 13/8/2013. This appeal was therefore
argued on the Notice of Appeal dated and filed on the
29/8/2013.
The said Notice of Appeal consists of four Grounds of
Appeal. In obedience to the Rules of this Court, the parties
filed and exchanged Briefs of Arguments. The Appellant's
Brief of Arguments was dated and filed on the 19/02/2015
but deemed filed on the 30/4/3015. Therein, four issues
were raised for determination as follows.
1. Whether on the totality of the evidence before the Court,
the learned trial judge was not in error when he held that
the loan facilities sought by the Claimants from either the
First Bank or Astra Polaris
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Micro-Finance Bank might have been given if the 2nd
Claimant's Original Deed of Conveyance had been released
in time after liquidation of the indebtedness to the
Defendant (Ground 1).
2. Whether after finding that the Claimants/Respondents
did not prove special damages, the learned trial judge was
right in his application of the maxim ubi jus ibi
remedium in awarding damages in favour of the
Claimants/Respondents. (Ground 2).
3. Whether the learned trial Judge was justified in choosing
the higher figure of N35 Million as against the lower figure
of N25 Million in calculating the damages due without any
evidence before him and whether in particular, the learned
trial Judge was not wholly in error when he not only
awarded damages in favour of the claimants/Respondents
but also proceeded to award damages beyond the period of
claim by the Claimants/Respondents. (Ground 3).
4. Whether the award of damages was not excessive and
whether the learned trial Judge had not descended into the
area of litigation in the route towards the award of
damages. (Ground 4).
The Respondents' Brief of Arguments was dated and filed
on the 28/5/2015. Therein, the Respondents raised two
issues
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for determination as follows:
1. Whether on the totality of the evidence before the Court,
the learned trial Judge was not in error when held that the
loan facilities sought by the claimants from either the First
Bank or Astra Polaris Micro-Finance Bank might have been
given if the 2nd Claimant's Original Deed of conveyance
had been released in time after liquidation of the
indebtedness to the Defendant. (Ground 1).
2. Whether the award of the sum of N15,750,000.00
(Fifteen Million, Seven Hundred and Fifty Thousand Naira)
as damages to the Respondents was not justified and
justifiable particular regard being had to the finding of the
learned trial judge that the Appellant wrongly detained the
Respondents?
A careful consideration of the issues raised by the parties
would show clearly that the issues formulated by the
Respondents brings out the issues for determination
clearer. In that regard, I shall adopt the issues raised by
the Respondents as mine in the determination of this
appeal. I also find it pertinent to point out that issue one (1)
as formulated by Respondents has been subsumed in the
Appellant's issue one (1), while the Appellant's issues 2, 3
and 4
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are adequately captured in the second (2nd) issue
formulated by the Respondent. Accordingly, the Appellant's
issues 2, 3 and 4 will be argued together as issue two (2).
Now, in arguing issue one, learned counsel for the
Appellant referred us to the judgment of the trial Court at
page 314 lines 12 - 21, to submit that the findings and
conclusion of the learned trial Judge is erroneous and
speculative as it overlooked the testimony of the P.W.3.
That the said witness had stated that the financial
institutions were not bound to grant the exact amount
requested by a customer as loan. It was therefore
submitted that, if the trial Court had directed its mind to
that piece of evidence, it would have been circumspect in
coming to the conclusion that "the loans might have been
given" if the 2nd Respondent's "original Deed of
Conveyance had been released in time after liquidation of
the indebtedness to the Defendant".
That, from the testimony of the PW3, there was no certainty
that the loans would have been granted at all or the exact
amount.
Learned Counsel for the Appellant further submitted that,
the combined effect of Exhibits C1, C5 and K show that as
at the time
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those exhibits came into being, the indebtedness of the
Respondents to the Appellant had not been fully settled to
enable the Appellant release the title document. It was
therefore submitted that, from the Exhibits tendered before
the Court, before the 21st November, 2008 the
indebtedness of the Respondents to the Appellant had not
been completely settled, and thus the bank could not
release the title documents without the judgment sum
being fully liquidated.
Furthermore, that the DW1 testified in his Statement on
Oath at page 121 of the record of appeal enumerating the
process to be followed before the documents could be
released, and was never cross-examined on it; and that
such piece of evidence is deemed unchallenged and
therefore admitted. The cases of LSPDC & Anor v.
Nigerian Land Sea Foods Ltd (1992) NWLR (Pt.243)
p.620 and Obmiami Brick & Stone Nig. Ltd v. A.C.B.
Ltd (1992) 3 NWLR (Pt.229) p.260 at 294 paragraph
A, were cited in support. That this piece of evidence further
buttresses the testimony of the D.W.1 to the effect that the
sum of N74,087.70 claimed to have been paid by the
Respondents was not the full and final settlement of the
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judgment debt owed to the Appellant.
Learned Counsel for the Appellant went on to submit that,
P.W.2 stated at page 222 lines 7 - 10 of the Records that, it
was while he was to go to Court that he completed payment
of the sum of N75,000.00 adjudged in Suit No: AB/200/96.
That, the evidence of the PW2 clearly demonstrated the
fact that the Respondents had not settled the total
indebtedness to the Appellant.
Furthermore, that the evidence of completion of payment
made vide Exhibit "G' was only delivered to the Appellant
through a letter dated the 28/11/2008 (Exh. L) and received
by the Appellant on the 05/12/2008. It was thus submitted
that, the implication is that, before the 5th day of
December, 2008, and as at the time the Respondents
applied for the loan facilities with the First Bank Plc and
Astra Polaris Micro-Finance Bank through Exhibits B1, C3,
C4 and C5, they had not fully liquidated their indebtedness
to the Appellant. That, there was no evidence before the
Court that the Respondents made a fresh demand for
release of the document from the Appellant, after the 5th
December, 2008, nor was there evidence of fresh
application made to the banks without
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success after the title documents were released or before
the Respondents sought redress in Court. We were
accordingly urged to hold that, there was no detention that
was illegal or unlawful in the circumstances.
Learned Counsel for the Respondents contended that, the
submissions of the Appellant on this issue is erroneous.
That, in determining the issue, the learned trial Judge
evaluated the evidence led by the parties and came to a
conclusion at page 307 of the Records that:
"..., I have no hesitation to conclude that the sums of
N74,081.70 in Exhibit "D2" and N2,000 in Exhibit "G" were
paid to and received by the Defendant. It thus means that
the claimants eventually settled their indebtedness to the
Defendant on 21 November, 2008."
Learned Counsel for the Respondent then submitted that,
there is no challenge to the above finding of the learned
trial Judge, and therefore it remains undisputed that the
whole indebtedness of the Respondent was fully paid to the
Appellant. That based on the above findings, the learned
trial Judge considered the Respondents' claim for losses
suffered as a result of its failure to secure loan facilities
from First Bank Plc and
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Astra Polaris Micro-Finance Bank. That the learned trial
Judge also evaluated the various correspondences between
the Respondents and the said banks which were tendered
in evidence; and that based upon such evaluation,
particularly that of Exhibits C5 and C6, and came to the
conclusion that the loan facilities would have been given if
the 2nd Respondent's Original Deed of Conveyance had
been released in time after liquidation of the indebtedness
to the Defendant. That the findings of the learned trial
Judge are neither erroneous nor speculative, because:
(i) The findings of the learned trial Judge who had the duty
to evaluate and ascribe probative value to the totality of the
evidence before him, based his findings on the oral and
documentary evidence adduced and tendered before
him.(ii) The findings of the trial Court was based on the
contents of Exhibits C5 and C6 wherein the banks
approached by the Respondents for loan facilities declined
further processing of the application for no other reason
than the failure of the Respondents to produce title
documents that the Appellant had refused to release.
(iii) The learned trial Judge had also found as a fact that
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the Respondents had fully repaid their indebtedness to the
Appellant.
(iv) There was unchallenged finding that the Appellant
wrongly detained the documents of the Respondents after
they had fully repaid their indebtedness to the Appellant.
It was also submitted that, the fact that the banks were not
bound to grant the exact amount of loan sought by the
Respondents does not remove the fact that the banks could
not in any event, grant a loan, in whatever amount
whatsoever, to the Respondents for the simple reason that
the Respondents were unable to produce the title
documents which were wrongly detained by the Appellants.
That, what is discernible from the evidence of PW3 is that
the consideration whether to grant a facility sought by a
customer in full or in part will only be taken after the
customer had fulfilled the conditions necessary for the
grant of a facility: That by Exhibit C5, Astra Polaris Micro-
Finance Bank refused to proceed with further processing of
the Respondents' application owing to non-production of its
title documents.
Learned counsel went on by referring to the finding of the
learned trial Judge at page 309 of the records, wherein the
learned
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trial Judge held that the Appellant had failed to tender any
documentary evidence with regards to the procedure for
the release of the documents and that there is no appeal
against that finding. That that finding is binding on the
parties. It was further contended that, the alleged failure of
the Respondents to liquidate fully indebtedness to the
Appellant could not avail the Appellant because its failure
to produce the title documents was never anchored on the
fact that the Respondents had not fully liquidated the
indebtedness. That indeed, it was the Respondents who on
their own discovered that the judgment debt had been
underpaid. We were accordingly urged to resolve this issue
in favour of the Respondents.
Before I proceed, I find it necessary to point out that, the
claim of the Respondents who were Claimants or Plaintiffs
at the Court of trial is predicated on detinue. They had
sought that the Court declare that the detention of the 2nd
Respondent's title documents on account of a debt long
settled inspite of repeated demand is illegal, unlawful and
unconscionable. The other claims for damages are
dependent on the success or failure of the first claim. The
16
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5) LP
ELR-40
030(
CA)
principal claim of the Respondents in this appeal is
therefore a declaratory one. It is the law that in an action
seeking for declaratory reliefs or orders, the Plaintiff has
the sole burden to adduce credible evidence which must
satisfy the Court that the plaintiff is entitled to the
declaration sought.
To succeed, the plaintiff must rely on the strength of his
own case, as declaratory orders are not granted even on
the admission of the Defendant; though where a weakness
in the Defendant's case supports the case of the Plaintiff,
such a plaintiff may rely on it to strengthen his own case.
Ultimately, the burden is on the plaintiff all through to
prove by credible evidence that he is entitled to the
declaration sought- Thus, in the case of Dumez Nigeria
Ltd v. Nwakhoba (2008) 18 NWLR (Pt.1119) p.361,
Mahmud Mohammed, JSC (as he then was) held that:
"The law on the requirements of the plaintiff to plead and
prove his claims for declaratory reliefs on the evidence
called by him without relying on the evidence called by the
Defendant is indeed well settled. The burden of proof on
the plaintiff in establishing Declaratory Reliefs to the
satisfaction of the Court is
17
(201
5) LP
ELR-40
030(
CA)
quite heavy in the sense that such Declaratory Reliefs are
not granted even on admission by the Defendant where the
Plaintiff fails to establish his entitlement to the declaration
by his own evidence."
Basically therefore, in claims relating to declaratory reliefs,
the burden is on the plaintiff to establish his claim on the
strength of his claim and should not rely on the weakness
of the defence. See, Nwokidu v. Okanu (2010) 3 NWLR
(pt.1181) p.362; Alechendu v. Oshoke (2002) 9 NWLR
(Pt.773) p.521 at 535; Dantata v. Mohammed (2000) 7
NWLR (Pt.664) p.176 and Senator Julius Aliucha &
Anor v. Martin Nwanscho Elechi & Ors (2012) LPELR -
7823 (SC).
As pointed out earlier in the course of this judgment, the
Respondent's claim before the trial Court, was for the
Court to declare that the act of the Appellant in failing or
refusing to release the title document for the landed
property deposited with the Appellant by the Respondents
as security for a loan had caused them special and general
damages. The head of claim is therefore on the tort of
detinue.
In the case of Zenon Pet & Gas v. Idrisiyya Ltd (2006) 8
NWLR (Pt.982) p.221 at 245 paragraphs E - G, M. D.
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030(
CA)
Muhammad, JCA (as he then was) describes an action in
detinue in the following words:
"An action in detinue is brought for recovery of the specific
personal chattel, ...wrongly detained from the person
entitled to the possession of them, and /or for damages
occasioned by the wrongful detainer, the Appellant herein.
Accordingly, detinue is based on the Defendant's wrongful
detention of plaintiff's chattel coupled with the Defendant's
refusal to deliver up and restore possession of the chattel
following the Plaintiff's demand. The redress the Plaintiff is
entitled to is strictly not for the wrong but for the return of
the chattel he had been dispossessed, or the value of the
chattel if same had been destroyed as well as the loss of
use of the chattel."
My Lord, Ogunbiyi, JCA (as he then was) at page 249 of
the case cited above, also describes the tort of detinue as
consisting in the wrongful withholding of the Plaintiff's
goods. That it does not matter whether the person or the
wrong doer, i.e. the detainee of the goods obtained
possession of the detained goods lawfully or illegally or by
seizure, and that what is relevant is the wrongful retention
or
19
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5) LP
ELR-40
030(
CA)
detention of the chattel after demand. My Lord therefore
concluded that:
"It is therefore material that, to sustain an action in
detinue, there must be demand by the plaintiff and on
receipt of this notice the persistence in keeping the chattel
by the Defendant would give rise to an action in detinue."
A claim in detinue is therefore one that is predicated on a
possessory right or action that seeks recovery of personal
chattels illegally or unjustly retained or detained. The claim
in detinue therefore germinates from the act of delivery of
goods by the owner to another to keep, and who afterwards
fails or refuses to deliver back the chattel or goods to the
true owner. In an action or claim for detinue therefore, it is
necessary that the Defendant should have come into
possession lawfully either by finding it or the delivery of
same. It is an action which lies for the recovery of property
from one who has acquired possession of it lawfully but
retains same wrongfully, illegally or without a right to
continue in such possession, upon demand by the person
entitled to possession. The Defendant should therefore not
have any reasonable justification for keeping or
20
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5) LP
ELR-40
030(
CA)
detaining the chattel. See F.B.N. Plc v. Sangonuga
(2007) 3 NWLR (Pt.1021) p.230; NACENN (Nig) Ltd v.
B.A.P. Ltd (2011) 11 NWLR (Pt.1257) p.193 and
Anuruba v. E.C.B. Ltd (2005) 10 NWLR (Pt.933)
p.321.
To succeed in a claim in detinue therefore, the plaintiff
must adduce credible evidence to establish the following
facts:
(i) That he is the owner of the property chattel in question
(ii) That he has an immediate right to possession of the
property or chattel;
(iii) That the Defendant is in actual possession of the
property or chattel;
(iv) That he has made proper demand on the Defendant to
deriver up possession of the property or chattel to him; and
(v) That the Defendant, has, without lawful excuse, refused
or failed to deliver up the property or chattel to him.
It would be seen therefore that the gravamen or centre-pin
in an action in detinue is the wrongful retention of the
chattel.
In the instant case, it is not in dispute that the property in
question is the 2nd Respondent's title document in respect
of his landed property Registered as No.59 at page 59 in
Volume 1853 of the Land Registry at Ibadan. It is also
established that the said property was deposited
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030(
CA)
with the Appellant as security for a loan in the year, 1981.
It is further agreed by the parties that the said title
document was to be released or returned to the
Respondents upon full satisfaction or liquidation of the
loan.
The facts as established further show that a dispute arose
in the relationship between the Respondents and the
Appellants, leading to Suit No: AB/200/96; and the Court
adjudged the Respondents to be indebted to the Appellant
in the sum of Seventy-Five Thousand and Eighty-One Naira
(N75,081.00). There is no dispute on the fact that Appellant
held onto the title documents. The fact in dispute or which
the Court was saddled with resolving is whether the
Respondents made a proper demand for the title
documents which the Appellant refused or failed to deliver
the title documents. The Respondents in proof of their case
had pleaded at paragraphs 11, 12, 13, 15, 16, 17 and 18 as
follows:
"11. The 1st Claimant instituted an action against National
Bank in Suit No:AB/200/96 (Arison Trading Engineering
Co. Ltd v. National Bank of Nigeria). Relevant
documents will be relied on at the trial.
12. The Court in the said case delivered its judgment on
10/9/99 and ruled that the claimant is indebted
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030(
CA)
to National Bank in the sum of N75,081 being outstanding
interest on loan obtained from the Defendant. The Claimant
shall rely on the judgment of the Court.
13. The claimant avers that it paid the sum of N74,081 to
National Bank on 28th September, 1999 on a mistaken
belief that it was the total judgment sum.
14. Due to the merger and acquisition which in occurred
the banking industry, the Defendant acquired National
Bank.
15. The claimants caused their solicitor, Chief Afe Babalola,
SAN & Co, to officially demand for the release of the title
documents in possession of the Defendant through letters
dated 28th February, 2006 and 18th September, 2008 from
the Defendants, Claimants will rely on the said letters at
the trial.
16. Sometime in September, 2008, the claimants
discovered that the amount they paid for the liquidation of
the judgment debt was short by N1,000.00. They
immediately caused to be paid to the Defendant the sum of
N2,000 i.e. 1,000 in excess of the shortfall.
17. The 2nd claimant sent the bank draft for payment of the
money pleaded in paragraph 16 to the Defendant through a
letter by their solicitor and in the same letter demanded for
the release
23
(201
5) LP
ELR-40
030(
CA)
of the property title deeds pleaded..
18. The 2nd Claimant apart from the above letters made
several visits to the Defendants in order to obtain the title
documents but the Defendants did not yield to the request."
In proof of those facts pleaded, the Respondents called
three witnesses. The testimony of the witness I find
germane is that of the PW2 who adopted and relied on his
written statement on oath made on the 10/2/2009 as his
evidence in-chief. Several documents were tendered and
admitted through him, amongst which are exhibits in
support or validation of the above stated pleadings. The
documents I find relevant to the above pleadings are
Exhibits D1, D2, E, F, G respectively. Specifically, Exhibits
"D1" dated the 04/11/1999, "E" dated the 28/2/2006 and "F"
dated the 20/10/2008, demanded of the Appellant, to return
the Deed of conveyance Registered as No.59 at page 59 in
Volume 1853 of the Land Registry Office, Ibadan in the
name of Chief Duro Aikulola (2nd Respondent).
It is instructive to note that, the Appellant, as Defendant in
the Court below had responded at paragraphs 7, 8, 9, 10,
11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the Statement of
Defence
24
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5) LP
ELR-40
030(
CA)
to the effect that, the Respondents are the architects of
their own misfortune as they had delayed in full payment of
the judgment debt. That the Respondents had failed to
show evidence of full payment of the judgment debt as at
the date they wrote Exhibits D1, E and F. That in any case,
they had pointed out to the Respondents, upon receipt of
the Letters of Demand of the Respondents for the release of
the said Deed of Conveyance, written letters to the
Respondent's solicitors demanding evidence of full payment
of the judgment debt in Suit No:AB/200/96.
Now, based on the positions taken by the parties, I am of
the view that it will be necessary to determine whether, at
the time the Respondent wrote the Appellant demanding
the release of the Deed of Conveyance, they had fully
liquidated the judgment sum. This is because, the release of
the Deed of conveyance was clearly dependent upon full
liquidation of the said judgment debt by the Respondents.
The position of the Appellant is clearly brought out by
Exhibits "L" and "M". Exhibit "L" was dated the 24/7/2007
while Exhibit "M" was dated the 24/9/2008. In the two
exhibits, the Appellant requested for payment of
25
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5) LP
ELR-40
030(
CA)
the said judgment debt or evidence of such payment. It is
clear therefore that, as at the 24/9/2008, there was still
dispute between the parties as to whether, full liquidation
of the judgment debt had been made. At last, the
Respondents betrayed their position, and thus owned up
when they wrote Exhibit "K" dated the 28/11/2008. Therein,
the Respondents unequivocally admitted at page 2
(paragraph 6 thereof) as follows:
"On 27th of November, 2008 while going through the
judgment, we discovered that the judgment debt was
N75,081.79k (seventy-Five thousand, Eighty-one Naira and
seventy Kobo) this means, that our payment made on 26th
September, 1999 was less by N1,000 (One Thousand Naira)
only. As a result of this, we hereby attach a GTB Bank draft
number 02202274 of Two Thousand Naira dated 21st
November, 2008."
After reviewing both oral and documentary evidence
adduced by the parties, the learned trial Judge found and
thus, held at page 307 lines 1 - 5 of the records as follows:
"With the above decisions of Superior Courts of record, I
have no hesitation to conclude that the sums of N74,081.70
in Exhibit "D2" and N2,000 in Exhibit "G" were paid and
received by the
26
(201
5) LP
ELR-40
030(
CA)
Defendant. It thus means that the claimants eventually
settled their indebtedness to the Defendant on 21
November, 2008."
The above finding of the trial Court has not been
challenged in this appeal in anyway. It is the law that any
finding of fact by a trial Court on a vital point in issue, for
which there is no appeal, is deemed established. Such fact
remains valid, subsisting and binding on the parties. See
Ebenigbe v. Achi (2011) 2 NWLR (Pt.1230) p.65;
L.H.A.B.U.M.B. v. NYIB (2011) 12 NWLR (Pt.1260) p.1
and S.P.D.C.N. Ltd v. Ejebie (2011) 17 NWLR
(Pt.1276) p.324. It therefore remains settled, that the
Respondents finally settled fully their indebtedness to the
Appellant on the 21/11/2008.
I wish to clarify here that liability of a Defendant for
detinue, in the circumstances of this case does not
automatically arise on the date the debt due was liquidated.
It is my view that the liability of the Appellant will arise
from the date the Respondents made a demand for release
of the Deed of conveyance. Now, having found and held
that the debt due was fully liquidated on the 21st
November, 2008, it would mean that, all other demands for
the release of the Deed of conveyance, made
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5) LP
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030(
CA)
prior to the 21/11/2008, did not give any right to the
Respondents to demand for release of the Deed of
conveyance. Thus, Exhibits "D1", "E" and "F" did not
amount to valid demand for release of the Deed of
Conveyance, and therefore could not form any basis for
liability for detinue against the Appellant.
After a careful study of the documents tendered by the
parties, I find that the document relevant is that dated the
28/11/2008. That letter was tendered at the trial by the
Appellant as Exhibit "K." It is in that document that the
Respondents specifically made a demand for release of the
Deed of conveyance. The learned trial Judge would appear
to be of the view, when assessing the damages at page 320
lines 21 - 23 of the records that the effective date for
liability for detinue to arise in the circumstances of this
case is 21/11/2008. That, in my view is erroneous.
By the letter dated the 28/11/2008, the Respondents while
admitting their error with respect to the issue of payment
of the judgment debt, wrote in paragraph 7 of the said
Exhibit "K" that:
"On a final note, we hereby demand for the release of the
Deed of conveyance Registered as No.59 at page 59 in
28
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5) LP
ELR-40
030(
CA)
Volume 1853 of Land Registry Office, Ibadan in the name of
Chief Duro Aikulola within 7 days of your receipt of this
letter, failure of which we will not hesitate to perfect our
client's brief by instituting legal action against the bank."
The acknowledgment stamp on Exhibit 'K' reveals that the
demand for the release of the Deed of Conveyance was
received by the Appellant on the 05/12/2008. The evidence
discloses that the Deed of Conveyance was finally released
to the Respondents on the 17/2/2009, after the
Respondents had instituted their action claiming damages
for detinue. From the above analysis therefore, I am of the
view that the learned trial Judge was right when he held
that there was no justification on the part of the Appellant
to have continued holding the Respondent's title document
after settlement of the indebtedness. That liability arose
from the 28/11/2008 when the Respondents made the
demand for release of the Deed of conveyance. The issue to
be considered next is the issue of damages the
Respondents were entitled to. This issue is settled as issue
two (2).
Arguing issue two (2), learned counsel for the Appellant
argued in his issues, 2, 3 and
29
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ELR-40
030(
CA)
4 by referring to the findings of the learned trial Judge at
pages 314 lines 1 - 9, 21 - 24; 318 - 319 lines 26 - 2 and 320
lines 20 - 26, that the claim of the Respondents was not one
for causing delay in releasing the title deed after the
liquidation of the loan granted to the Respondents by the
Appellant, but was one for special and general damages for
wrongful detention of the Respondents title document.
That, the learned trial Judge having found that the
Respondents failed to prove special damages, did a
complete somersault and without foundation invented
evidence and relied on the principle of ubi jus ibi
remedium. That the decision of the learned trial Judge
failed the test for the application of the principle as laid
down in the case of Bello v. A.G; Oyo State (1986) 5
NWLR (Pt.45). p.828 at 890 paragraphs A - B, because:
(i) The case before the trial Court was not one without a
remedy; and the Respondents failed to prove access to the
remedy open to them.
(ii) The Appellant was not under a duty to the Respondents
as at 21/11/2008.
(iii) There could not have been a breach of a duty that had
not arisen before the 05/12/2008, especially when there
was no
30
(201
5) LP
ELR-40
030(
CA)
fresh request for the release of the title document nor a
fresh application for the bank loan.
(iv) The Respondents did not prove that they suffered any
injury.
Learned counsel for the Appellant thus submitted that the
learned trial Judge raised the application of ubi jus ibi
remedium without foundation and in vacuo. That by so
doing, the learned trial Judge descended into the arena of
litigation and thus made a case for the Respondents to the
detriment of the Appellant.
It was further contended by learned counsel for the
Appellant that, there was no justification in choosing the
higher figure of N35 Million as against the lower figure of
N25 Million in calculating damages by the learned trial
Judge. That the learned trial Judge in his assessment of
damages chose on his own the higher sum of N35 Million
applied for from First Bank as against the lower sum of
N25 Million applied for from Astro Polaris Micro-Finance
Bank, without any evidence of preference from the
Respondents. That by so doing, the learned trial Judge
descended into the arena of litigation to make a case out
for the Respondent.
On the issue of the sum of N15,750,000.00 awarded the
Respondents, it
31
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5) LP
ELR-40
030(
CA)
was submitted that, the learned trial Judge made the award
without any evidence. That, that finding is speculative and
does not flow from the pleadings and evidence before the
Court. The case of American Cyanamid Company v.
Vitality Pharmaceuticals Ltd (1991) 2 NWLR (Pt.171)
p.15 at 30 paragraph G and Odonigi v. Oyeleke (2001)
6 NWLR (Pt.708) p.12 at 35 paragraphs E - G were
cited; and to further submit that, the learned trial Judge
refused to fully appreciate and make use of the evidence
before him which led him not only to award damages but to
award excessive damages in favour of the Respondents. We
were accordingly urged to allow the appeal and to set aside
the decision of the Court below.
In response, learned counsel for the Respondents
contended that, contrary to the assertion of the appellant
the damages awarded in favour of the Respondents is
justified having regard to the totality of the evidence
adduced before the Court. The case of Adetoro v. Ogo
Oluwa Kitan Trading Co. Ltd (2002) 9 NWLR (Pt.771)
p.157 p.157 at 214 paragraphs G - H was cited in
support. Learned Counsel then drew our attention to the
evidence of PW2, the documentary evidence adduced i.e.
32
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5) LP
ELR-40
030(
CA)
Exhibits B1, B2, B3, C1, C3 and C5, the findings of the trial
Court that the Respondents had fully repaid their
indebtedness to the Appellant, but the Appellant wrongly
detained the title documents of which there is no appeal;
and the unchallenged evidence that the Respondents were
trading or business customers of the Appellant; to submit
that, the trial Court did not take extraneous matters into
consideration in the award of damages. That non of the
conditions under which this Court can disturb the award of
damages made by the trial Court as laid down in Adetoro
v. Ogo Oluwa Kitan Trading Co. (supra) exists to
warrant this Court interfering with the award made by the
Court below.
Learned counsel for the Respondents went on to submit
that the learned trial judge rightly applied the principle of
ubi jus ibi remedium in awarding damages considering
the circumstances of the case. That, though the trial Court
had found that special damages had not been proved, that
finding could not serve to deprive the Respondents
of damages particularly given the fact that there was a
claim for general damages before the Court. It was
therefore contended that, without the
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5) LP
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030(
CA)
application of ubi jus ibi remedium, there was a relief
upon which the award of damages could be anchored. We
were accordingly, urged to hold that the damages awarded
was based on credible evidence.
Now, as stated earlier in the course of resolving issue one
(1), the basis for a claim in the tort of detinue is for the
recovery of property from one who has acquired possession
of it but retains the property wrongfully, illegally or without
right. In that sense, a claim in detinue is a claim for the
specific return, delivery or surrender of a chattel to the
plaintiff who is entitled to it. However, when a person's
chattel has been unlawfully detained by another person, the
person who is denied possession or use of that chattel, has
several remedies available to him; and such remedies
include;
(a) specific return of the chattel and damages for its
detention; or
(b) The value of the chattel as assessed and also damages
for its detention; or
(c) Return of the chattel or recovery of its value as assessed
and also damages for its detention.
It therefore means that in an action for detinue, a
successful plaintiff will be entitled to an order of specific
return of the
34
(201
5) LP
ELR-40
030(
CA)
chattel detained; or its value in default of such return in
circumstances where the chattel has been destroyed or
otherwise unavailable. See NACENN (Nig.) Ltd v. B.A.P.
Ltd (supra) at 208 - 209, paragraphs G - A; Julius
Berger (Nig) Plc v. Omogui (2001) 15 NWLR (Pt.736)
p.401 and Zenon Pet & Gas v. Idrissiya Ltd (supra) at
p.245 paragraphs F - H.
In the instant case, the Deed of Conveyance which is the
chattel in question was returned to the Respondents on the
17/2/2009. This informed the amendment to the
Respondent's Statement of Claim wherein the claim for
release of the title documents was dropped. There is
therefore no claim for return of the documents of title.
It is not disputed that the learned trial Judge refused the
Respondents' claims on the head of special damages on the
ground that they were not proved. There is no appeal
against that finding. The claim for special damages have
therefore been rested. Curiously, however, the learned trial
Judge for reasons I find hard to understand, introduced the
principle of ubi ius ibi remedium and proceeded to award
damages to the Respondents under circumstances under
which such damages should be proved as
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030(
CA)
special damages. Thus, after refusing the Respondents,
claim for special damages, instead of considering the other
claim for general damages, the learned trial Judge went on
to rationalize at page 318 lines 25 - 319 line 8 as follows:
"But there is no doubt that the Defendant did cause
damage to the Claimants for the delay in releasing the title
deed after the total liquidation of the loan granted to the
claimants by the Defendant bank.
It seems the only remedy available to the claimants is in the
broad and general principle law as contained in the old
latin maxim - ubi jus ibi remedium here signifies the
legal authority to do or demand something and remedium
here means the right of action, or the means given by law
for the recovery or the declaration or assertion of that
right. In other words, the maxim presupposes that
wherever the law gives a right, it also gives a remedy.
Conversely, wherever a Plaintiff is claiming a remedy that
remedy must be founded on a legal right per Oputa, JSC in
Chief Dr. Irene Thomas & Ors. v. The Most Reverend
Timothy O. Olufosoye (1986) 1 NWLR 669 at pp.689 -
690."
Despite this clear statement of the law as
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030(
CA)
laid down by Oputa, JSC (of blessed memory) to the effect
that, Courts are enjoined to find a remedy where a legal
right has been proved to exist in favour of a claimant, the
learned trial Judge closed his eyes to the pleadings of the
Respondents. By so doing, the learned trial Judge either
wittingly or unwittingly, erroneously awarded damages to
the Respondents which could only be classified as special
damage. There was no evidence before the Court that the
business the loan sought by the Respondents would have
been applied into, would have attracted a profit of 10% per
year.
The evidence at the trial is that the loans were not granted
and so the business was never embarked upon. It is obvious
therefore that the loss of profit awarded by the trial Court
was merely anticipated. It is the law that anticipated profit
is in the class of special damages which must be strictly
proved by evidence. See A.G.; of Oyo State & Anor v.
Fairlakes Hotels Ltd & Anor (No.2) 12 S.C.N.J. p.1
cited by the learned trial judge at page 318 of the Records.
There was no evidence on record upon which the learned
trial judge could base his award of Fifteen Million, Seven
Hundred and Fifty Thousand Naira (N15,750,000.00). such
evidence was merely invented by the learned trial
37
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5) LP
ELR-40
030(
CA)
judge.
I also find that, the learned trial judge was in error when he
applied the ubi jus ibi remedium principle. In the
circumstances of this case, the Respondents had
established that they had a right to sue in detinue; and the
remedies available to a successful plaintiff suing for
detinue have been well settled by case law, some of which
have been cited in the course of this judgment. It is the
trite law therefore that, a person suing in detinue has the
option to sue for return of damages the chattel in question
and for the wrongful detention; or sue for it's value.
Generally the damages a claimant is entitled to would be
nominal or general damages for the detention where the
chattel has been returned. Such damage is generally
presumed. where special damages are claimed, they must
be specifically proved by evidence. See C.D.C. (Nig) Ltd v.
SCOA (Nig) Ltd (2007) 6 NWLR (Pt.1030) p.300;
NACENN (Nig.) Ltd v. B.A.P. Ltd. (supra).
It is therefore my view that the learned trial Judge erred
grievously when he, suo motu, imported into the case of
the parties, the principle of ubi jus ibi remedium. The
Respondents clearly claimed special and general
38
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5) LP
ELR-40
030(
CA)
damages as their remedy for the detention of the title
documents. It is the law that, parties are bound and limited
in their claims to the pleadings. Accordingly, a Court
should not award a relief which is not claimed by any of the
parties. This is because, a Court of Law is a Court of Justice
and should therefore always administer justice according to
law and not according to sentiments.
On that score, it is my view which I do hold that the award
of Fifteen Million, Seven Hundred and Fifty Thousand
Naira (N15,750,000.00) made in favour of the Respondents
was in error. The claim for special damages having been
dismissed, the Respondents were only entitled to nominal
or general damages for the detention of their title
documents. This is so as can be gleaned from Exhibits B1,
B2, B3, C1, C2, C3, C4, C5 and C6, which disclose that the
two applications for the loan were made before the
21/11/2008 when the judgment debt was fully liquidated. It
therefore means that as at the date(s) the Respondents
applied for the loan(s), they had no right to possession of
the title documents. They could not in the circumstances,
validly claim for any loss arising from the refusal
39
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5) LP
ELR-40
030(
CA)
of the banks to approve or grant any loan to them.
Now, I have held that the Respondent were entitled to
general or nominal damages from the Appellant for the
wrongly detention of the title documents. It has also been
found that liability arose from the 28/11/08 when the
Respondents formally made a demand for release of the
title documents. It is also in evidence that the title
documents were eventually released to the Respondents on
the 17/2/2009. The detention of the title deeds was
therefore for a period of seventy-nine (79) days.
It should however be noted that, there is no evidence on
the records that the Respondents reapplied to the banks for
the loan(s) in the period between 28/11/08 and 17/2/09 so
as to aggravate the amount of damages to be awarded.
On the whole therefore, I hereby set aside the award of
Fifteen Million, Seven Hundred and Fifty Thousand Naira
(N15,750,000.00) made by the trial Court in favour of the
Respondents. However, the Respondents had claimed the
sum of Five Hundred Million Naira (N500,000,000.00) only
as general damages for the wrongful detention by the
Appellant of the title documents. Being general damages, I
hereby award the sum of
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One Million Five Hundred Thousand Naira (N1,500,000.00)
only as general damages for wrongful detention of the
Respondents' title documents plus ten percent (10%)
interest per annum thereon, from the day of the judgment
of the Court below, i.e. 24/6/2013 till judgment is fully
satisfied.
It is therefore clear that the appeal has succeeded in part.
Accordingly, that part of the judgment which found the
Appellant liable for wrongful detention of the Respondents'
Deed of conveyance is hereby dismissed.
However, that part of the judgment awarding Fifteen
Million, Seven Hundred and Fifty Thousand Naira
(N15,750,000.00) only is hereby allowed and thus the
award made is set aside. I make no order on costs.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I have had a
preview of the judgment just delivered by my learned
brother HARUNA SIMON TSAMMANI, JCA. I agree with
the reasons therein advanced to arrive at the conclusion
that the appeal succeeds in parts.
As rightly identified by my learned brother the case of the
respondent before the Lower Court was for detinue and
consequential damages.
By way of definition Detinue is a wrongful retention of the
possession of goods and the wrong
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arises upon the detention of the chattel, after demandfor its return by the person entitle to it immediatepossession has been made. See Julius Berger NigeriaPlc. v. Omogu (2001) 15 NWLR (Pt.736) page 401at 415 - 416 para H-A.
As clearly brought out on page 22 of the lead judgmentby my learned brother that liability arose from28/11/2008 after payment of the outstanding balance ofN1,000.00, though the respondent paid N2,000.00 i.e.one thousand Naira in excess. (see Exhibit "K"). Therespondents' entitlement in damages would be from that28/11/2008 and 17/2/2009 and not as erroneouslycomputed by the learned trial judge.
It is trite that in detinue there must be a demandfollowed by a refusal. An action cannot be founded onlyon the demand by the claimant without a correspondingrefusal. See Chigbu v. Tonimas (Nig.) Ltd. (2006) 9NWLR (Pt.984) page 186 at pg.210.
It is crystal clear and not in dispute by parties that thetitle deed of the respondent was not returned till 17/2/09after the demand letter of 28/11/08 Exhibit "K" whichcame into existence after payment of the outstandingbalance of N1,000.00. The appellant is therefore liable indamages for the
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detention of the title deed after final payment and demand
made. See Civil Design Construction Nig. Ltd v. SCOA
Nig. Ltd (2007) 6 NWLR (Pt.1030) page 300 at page
354.
For the above reason and the detailed ones ably advanced
by my learned brother which I hereby adopt, I too feel that
the appeal succeeds in part. I dismiss that ground of appeal
against that part of the judgment which found the appellant
liable for wrongful detention of the respondents' title deed
and I allow the other part, i.e. the ground against the
award of N15,750,000.00 (Fifteen Million, Seven Hundred
and Fifty Thousand Naira).
In its place I also award the sum of N1,500,000.00 (One
Million Five Hundred Thousand Naira) only as general
damages for wrongful detention plus ten percent interest
per annum from the date of judgment by the Court below
i.e 24/6/2013 till when the said sum is fully liquidated.
No order on cost.
NONYEREM OKORONKWO, J.C.A.: I have had a preview
of the lead judgment in this case researched and written by
my learned brother Haruna Simon Tsammani JCA in
which his Lordship amply reviewed the facts and sought for
and applied the appropriate legal principles.
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In an appeal as hair-raising as this in its novelty, it is
difficult to resist the need to make a contribution to an
exposition.
For my purpose here, the facts of the case leading to this
appeal were that the respondents took a loan from the
predecessor of the appellant and as security for the loan
deposited with the said appellant's predecessor title deeds
of their real property thus creating a mortgage legal or
equitable.
As a result of a dispute arising in the loan transaction, the
parties went to Court in AB/200/96 when by the judgment
of 10/9/99, the sum of seventy five thousand, eighty one
naira (N75,081.00) was adjudged as payable to the
appellant by the respondent.
Respondents for reasons best known to themselves paid
seventy four thousand and eighty one naira only (N74,081)
to the appellant. Thus the sum of one thousand naira was
left outstanding.
Upon this payment (that is not in full) the respondent
demanded a return for of the title deeds through letters
written by respondents' solicitors.
upon realizing that the payment was short of one thousand
naira, the respondent, again through their solicitor,
forward a draft for the outstanding balance and again
demanded for a
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release of the title deeds vide their letter dated 28/11/08
Exhibit L which the appellant received on 5/12/2008. The
appellant released the title deeds on 17/2/09 - a period of
74 days.
Before the trial Court, the respondent claimed general
damages of N285,000,000.00 founded largely on failure of
the appellant to release their title document which made
them (respondents) fail to secure loans from two banks
they had applied to for loan for their business.
The trial Court found that at the time the respondent first
applied for the release of the documents they had not
extinguished their indebtedness to the appellant and so no
claim can arise therefrom and after they had extinguished
the indebtedness it was not shown that they (respondent)
made any application to those banks' loan upon the release
of their title deeds. Notwithstanding, the trial judge
awarded general damage of fifteen million, seven hundred
and fifty thousand naira only (N15,750.000.00). This is the
subject of this appeal.
The lead judgment has admirably considered the issue and
concluded that it was not justified in fact or in law because
damages must be rested on some legal right and not
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speculation. See Agbaje v. James (1976) NMLR 49.Certa in ly the award of general damages ofN15,000,000.00 was without foundation and aroseperhaps from mere conjecture see Dumez v. Ogboli(1972) 3 SC 196.
It is true that after the extinction of the debt by Exhibit Lof 28/11/08 received by the appellant on 5/12/08, it tookthe appellant a period of some 74 days before therelease of the title document. It could be said that aperiod of 74 days amounted to a delay and wasunreasonable but what is reasonable in the circumstanceof this case would depend on its peculiar circumstancebecause in Barrister Amanda Pam & Anor v. NasiruMohammed & Anor (2008) 5 - 6 SC (Pt.1) 83, it wasstated that:"Reasonable time in its nebulous content cannot bedetermined in vacuo but in relation to the facts of eachcase because what constitutes a reasonable time in eachcase may not constitute reasonable time in anothercase".And in Moses Abiegbe & Anor v. EdhereniuUgbodume & Ors (1973) 1 sc 103 it was stated that:"What is a reasonable time to do some act or actsdepend on many circumstances for different occasions".
In this case the transaction in this case
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began in 1981 and ennured up to 2009 a period of some 28
years during which litigations raged, mergers and
acquisitions took place. These elements were not taken into
consideration.
The delay of 74 days did not and could not have occasioned
any loss on the respondents as they were not shown to have
applied for any loan on the basis of the title deeds after the
release thereof when it became due for release.
If there was any delay, in my view, the injury resulting
therefrom will fall under the principle of injuria sine
damnum. See Street on Torts 6 Ed page 6. In such
situation Nominal damages will be awarded where the
Court decides in the light of all the facts that no damage
has been sustained. See The Mediana (1900) A.C. 113.
The function of nominal damage in such situation is to mark
the vindication of a legal right where no real damage has
been suffered. Neville v. London Express Newspaper
Ltd (1919) A.C. 368 at 392.
It seem to me that it is upon this consideration that my
Lord Tsammani JCA spurned the award of N15,000,000.00
general damages by the trial judge and awarded
N1,500,000.00 instead which could be seen as Nominal
damage. I agree with the
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