KOSILE V. FOLARIN
KOSILE
V.
FOLARIN
IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, 21ST DAY OF APRIL, 1989
SC.35/1985
3PLR/1989/37 (SC)
OTHER CITATIONS
(1989) NWLR (Pt.107)1
BEFORE THEIR LORDSHIPS:
ANDREWS OTUTU OBASEKI, J.S.C. (Presided)
AUGUSTINE NNAMANI, J.S.C.
SAIDU KAWU, J.S.C.
SALIHU MODIBBO ALFA BELGORE, J.S.C.
PHILIP NNAEMEKA-AGU, J.S.C. (Read the Lead Judgment)
BETWEEN:
ELIJAH OLADEJI KOSILE
AND
AMUBA OLANIYI FOLARIN
REPRESENTATION
MAIN ISSUES
APPEAL – Grounds ofAppeal and issues for determination – Circumscribed by part of decision appealed against.
APPEAL – Raising fresh point – When it can be entertained.
DAMAGES – Detinue and conversion – Measure of damages – Principles applicable.
DAMAGES – Mitigation of – Duty on plaintiff. DAMAGES – Mitigation of – Proof of mitigation – Onus. DAMAGES – Special damages – Proof of – Balance of probability. EVIDENCE – Witnesses’ evidence – Uncontradicted – Duty of trial Judge to
accept.
PRACTICE AND PROCEDURE – Pleadings – Issue of mitigation of damages – To be pleaded.
TORT – Detinue and conversion – Measure of damages – Principles applicable.
TORT – Detinue and conversion – Principles and distinction.
PRACTICE AND PROCEDURE- Witnesses – Uncontradicted evidence ofDuty of trial Judge to accept.
MAIN JUDGEMENT
NNAEMEKA-AGU, J.S.C. (Delivering the Lead Judgment):
On the 23rd of January, 1989, this Court heard this appeal and dismissed it, but reserved reasons for the judgment till today. I now give my reasons.
By a writ of summons dated the 25th day of February, 1974, the plaintiff claimed against the defendant as follows:
“1. The plaintiffs claim is for the return of the plaintiffs Commercial vehicle registration No. WC 4102. or its value =N=2,400.00, which was wrongfully seized and detained by the defendant from the plaintiffs driver on or about the 21st day of May, 1972, at Ile-Ife. The defendant has refused to return the said vehicle to the plaintiff inspite of plaintiffs repeated demands. The plaintiff also claims from the defendant the sum of =N=20.00 per day for loss of income as a result of the wrongful seizure from the aforesaid date of seizure until possession is delivered.
The plaintiff further claims the sum of =N=1,000.00 as general damages for wrongful seizure and detention of the said vehicle.” Pleadings were filed and exchanged, after which the matter was set down for hearing.
The facts are brief. Between March and August, 1971 the plaintiff, a transporter, hire-purchased from the defendant three motor vehicles under the agreements, Exhs. E, F and G. When the plaintiff ran into difficulties without honouring his hire purchase obligations, the parties entered into an agreement, Exh. B dated January 4,1972, in place of the original hire purchase agreement. Under Exh. B the price of the vehicles was to be paid by agreed monthly installments of =N=400.00 per month, but upon default, the whole amount would become due and recoverable by legal action. One of the vehicles was involved in an accident and the engine of another vehicle knocked, leaving the plaintiff with only motor vehicle No.WC 4102, the subject of this suit. As the plaintiff could not pay as agreed under Exh. B, the defendant, on the 21st of May, 1972, seized the vehicle No.WC 4102. At the trial, the main issue as to the liability of the defendant was whether Exh. B was an agreement for sale under the Sale of Goods Law. The learned trial Judge, Agbaje Williams, J. (as he then was) held:
“I hold that Exh. B was not a sale under the Sale of Goods Law, Cap. 113. It was a mere relaxation of the strict terms of the hire-purchase agreements (Exhibits “E”, “F” and “G”), which relaxation is not intended under clause 12 of each of the Exhibits to prejudice or affect the strict rights of the parties: Animashaun v. C.F.A. (1960) L.L.R. 151.1 agree with the learned counsel for the Defendant that there was no consideration to ground it in any case in law: U.T.C. v. Walter Hauri (1940) 6 W.A.C.A. 148. There is no quasi-estoppel or promissory estoppel here, for that may only be used as a shield, not as a sword – see per Lord Cairns in Hughes v. Metropolitan Rly. Co. (1874-80) All E.R. Rep. 187
Then, as I said, he dismissed the plaintiffs claim with costs.
On appeal to the Court of Appeal, Ibadan Division, coram: Uche Omo, Dosunmu, and Omololu-Thomas, JJ.C.A., the appeal was allowed: Their Lordships, per Thomas, J.C.A. held:
“In this case the learned trial Judge ought to have considered the full effect of the unequivocal terms of Exhibit B along with the stipulations of Exhibits E,F,G. There is provided in the agreement Exhibit B a term not only that any default in the Instalmental repayment makes the whole amount payable, but also that the amount becomes recoverable by legal action.” Later he continued-
“The existence of Exhibit B in the form it appears, seems to me to suggest that the parties intended to extinguish or oust the original contract of Hire Purchase in its entirety, and substitute a new
agreement of sale. Grounds 1 and 5 therefore succeed. (Refer to Morris v. Baron (1918) A.C. 1 at p. 18 & 19).”
In a nutshell, they held that the contract of sale, Exh. B, extinguished the earlier hire purchase agreements and so the defendant was wrong to have seized the vehicle. They therefore, allowed the appeal, with costs. On the question of damages, they held:
“On the question of damages dealt with under Ground 4 of the Grounds of Appeal, by the wrongful seizure and detention of the vehicle, the Defendant had acted in breach of the terms of Exhibit B, and as the evidence as to loss suffered by the Appellant has not been rebutted or contradicted he is entitled to judgment for the return of the vehicle or its value, =N=2,400.00, and for the loss of use of the vehicle up to the date of judgment of the lower court in the sum of =N=20.00 per day. The Appellant is not entitled to any general damages since to award this will amount to double compensation in view of the damages awarded already (Shell-BP Petroleum Development Coy. vs. Jammal Engineering (Nigeria) Ltd. (1974) 4 S.C. 33).”
The defendant, hereinafter called the appellant, has appealed to this Court on only:
“PART OF THE DECISION COMPLAINED OF
The award of damages for loss of use of the vehicle up to the date of judgment in the High Court i.e. from 21st May, 1972, to 16th July, 1976, (1,516 days) at =N=20.00 per day – =N=30,320.00.” The plaintiff shall hereinafter be referred to as the respondent.
Both parties filed their respective briefs of argument. The issues for determination in the appeal were set out by the appellant in his brief thus:
“(a) Having recognised that the action arose from a contract of sale (see paragraph 3 on page 135 of the Record), should the Court of Appeal not have considered the failure of the Respondent to take reasonable steps to mitigate his loss in the award of damages for loss of use?
(b) Has the Court of Appeal not failed to consider that loss of earnings is special damage which should be strictly proved, having regard to its finding (see page 137 of the Record) that as the evidence to loss suffered by the Appellant (now Respondent) has not been rebutted or contradicted he is entitled to judgment for the loss of use of the vehicle up to the “date of judgment of the lower court in the sum of =N=20.00 per day?
(c) As the vehicle was not an irreplaceable article, should the Court of Appeal not have treated it as a constructive total loss and award its value at the date of seizure (i.e. =N=2,400.00) as the measure of damages?”
I must pause here to make some observations on these issues as framed. From the “Part of the decision complained of set out above, it appears to me that issues numbered (a) and (c) cannot properly arise in this appeal. Counsel will do well to always remember that the grounds of appeal and issues for determination are limited to and circumscribed by the PART OF THE DECISION COMPLAINED OF. Any ground or issue outside the statement of “part of the decision complained of is a useless surplusage.
The first issue is also objectionable on other grounds. In the first place, the question of failure to mitigate damages is being raised for the first time in this Court. It is true that a plaintiff has a duty not to increase the damages recoverable by him by his own voluntary and unnecessary act: See Admiralty Commissioners v. SS. Amerika (1917) A.C. 38. It is also true that the law imposes on him a duty to do all in his power to minimise his loss, otherwise anything which must be ascribed to his failure to do so is not recoverable from the defendant; See British Westinghouse Co. Ltd. v. Underground Electric Railways Ltd. (1912) A.C. 673. But that duty is to act reasonably: Payzu Ltd. v. Sounders (1919) 2 K.B. 581. As it is always a question of fact whether a person has acted reasonably or not, it is always necessary to raise the issue of the duty to mitigate and failure to discharge that duty on the pleadings so that the court of trial could go into it and thereafter express its opinion as to whether or not the plaintiff would, on the facts of the particular case, be adjudged to have reasonably breached that duty. This Court has made it clear a number of times that before a point not raised in the courts below could be entertained in this Court it must be satisfied that it is a substantial point of law and that no evidence could have been given which, if it were raised in the court below, would have affected the decision. See Shonekan v. Smith (1964) 1 All N.L.R. 168, at p.173; Akpene v. Barclays Bank of Nig. Ltd. & Anor. (1977) 1 S.C. 47. See also Kate Ent. Ltd. v. Daewoo Nig. Ltd. (1985) 2 N.W.L.R. (Part 5) 116. Adegbaiye v. Loyinmi (1986) 5 N.W.L.R. (Part 43) 655.
In the instant appeal the duty which the appellant is imputing to the respondent is that of buying another vehicle in order to mitigate his loss. It would have been necessary for the learned trial Judge to consider whether he was in a position financially to do so. The inescapable impression from the totality of the evidence before the court is that he was so impecunious that he could not do so. He could not even pay the agreed installments: that was the origin of the problem which led to this litigation. The law will never impose upon or impute unto a man a duty that will prove impossible for him to perform. Moreover, the appellant is required under the provisions of Order 6 rule 5 of the Supreme Court Rules, 1985, to have sought leave to raise such a new point before he includes it in his brief. But he did not. For these reasons, I need to consider only issue number two which was the only issue argued in this appeal. “Issue” number (c) is not an issue but argument.
On the single arguable issue, the learned counsel for the appellant submitted that for the court of trial to award =N=20.00 per day for loss of use for a period of more than four years is grossly gratuitous. He submitted that having been awarded =N=2,400.00 as market value of the vehicle as at the date of seizure, the respondent was only entitled to such further sum as would compensate him for loss of earnings during the period reasonably required for procuring another vehicle. In support he cited the cases of – Kerewi v. Odegbesan (1965) 1 All N.L.R. 95; S.C.O.A. Ltd. v. R. O. Ogana (1958) W.R.N.L.R. 141, at p.144; and B. Bakare & Anor. v. V.A. Jalkh (1969) N.M.L.R. 262. In his submission, it was not enough for the respondent to just say in his evidence that he was making =N=20.00 per day. As he did not give evidence as to his running expenses he was not entitled to the award as he could be only entitled to net income. In his reply, the learned counsel for the respondent submitted that the respondent proved his entitlement to the damage. Respondent, he pointed out, gave lucid evidence on the point and this was not challenged or contradicted. It was therefore rightly accepted. He cited the cases of Boshali v. Allied Commercial Exporters (1961) 1 All N.L.R. 917 at p.921; Ugwe Ukoha & Ors. v. Golden Okoronkwo (1972) 1 All N.L.R. (Part II) 100, at p.105;
Obi Obembe v. Wemabod Estates Ltd. (1977) 5 S.C. 115 at p.139/140; Incur Nigeria Ltd. v. Adegboye (1985) 2 N.W.L.R. (Part 8) 453; Odulaja v. Haddad (1973) 1 All N.L.R. (Pt.2) 191. He pointed out that in a claim for detinue the plaintiff is entitled to recover the chattel or its value as well as damages for its detention: Adefunke v. Ikpehai (1958) W.R.N.L.R. 33.
The first point I wish to make is that the learned counsel for the appellant has totally misapprehended the principle which governs the issue of measure of damages in actions for detinue. Apparently, he has confused it with the measure of damages in actions for conversion. It must be clearly stated that in an action for detinue the gist of the action is the unlawful detention of the plaintiff’s chattel, which he has an immediate right to possess, after the plaintiff has demanded its return. So, a successful plaintiff is entitled to an order of specific restitution of the chattel, or, in default, its value, AND also damages for its detention up to the date of judgment. See: Rosenthal v. Alderton & Sons Ltd. (1946) K.B.374, C.A.
As for the period relevant for the assessment, the principle is sufficiently summarized by the head-note in the report, at pages 374-375. It states:
“In an action of detinue, the value of the goods to be paid by the defendant to the plaintiff in the event of the defendant failing to return the goods to the plaintiff must be assessed as at the date of the verdict or judgment in his favour and not at that of the defendant’s refusal to return the goods, and the same principle applies whether the defendant has converted the goods by selling them or has refused to return them for some other reason.”
Indeed in that case, the plaintiff recovered an increase in the value of the goods subsequent to the failure of the defendant to return the goods when demanded. Inspite of the statement by the English Court of Appeal in Sachs v. Miklos (1948) 2 K.B.23, at p.38 suggesting that the measure of damages in detinue and conversion is the same – a statement that has been criticised and not followed (See Clark & Lindsell: On Torts (13th Edn.) para. 1152) – the true position is that an action for conversion is a purely personal action which results in pecuniary damages only reckoned at the time of the conversion whereas an action in detinue partakes of the nature of an action in rem for the restitution of the goods and damages, reckoned at the time of the judgment. See on these Clark & Lindsell On Torts (13th Edn.) para. 1151, 1152,1153 and 1180. Thus the case of Eunice Adefunke v. D. Ikpehai (1958) W.R.N.L.R. 33, at p.34 was rightly decided, per Hedges, J. The learned counsel for the appellant was therefore wrong when he contended that the respondent was only entitled to the value of the motor vehicle at the time of the seizure and such further sum as to compensate him for his loss during the period reasonably sufficient for him to purchase another motor vehicle. I have already stated that the issue of mitigation was not before the court. Incidentally none of the cases relied upon by learned counsel for the appellant for his submission, namely: Bakare & Anor. v. Jalkh (supra), Kerewi v. Odegbesan (supra) and S.C.O.A. Ltd. v. Ogana (supra) was a case of detinue. It is dangerous to confuse the measure of damages in a case of detinue with that of conversion or other torts on trespass to goods.
The next question raised by the appeal, as argued, is: did the respondent prove the item of special damage which he claimed and which was awarded to him by the Court of Appeal? What are the facts?
Now, part of the respondent’s claim in the High Court runs thus:
“The plaintiff also claims from the defendant the sum of =N=20.00 per day for loss of income as a result of the wrongful seizure and detention of the said vehicle.”
In paragraph 9 of the statement of claim the respondent pleaded further as follows:
“At the material time the plaintiff as a professional transporter had only these three vehicles and when two of them broke down, the plaintiff depended and still depends on the earnings realised from the only one remaining vehicle No. WC 4102 for his trade and for the maintenance and up-keep of himself and his family and for the discharge of his obligations under the aforementioned Agreement. The average net income accruing from the said vehicle alone was =N20.00 a day.”
Thus he averred that it was net income. This was merely denied in paragraph 3 of the statement of defence.
In his evidence the respondent testified inter alia as follows:
“At the time the defendant seized the vehicle WC 4102,1 was realizing at least =N20.00 per day.”
The respondent was not cross-examined on this, even though he was cross-examined at length on other issues. No evidence to the contrary was called either. The Court of Appeal, after reversing the High Court decision, noted that the above evidence was neither rebutted nor contradicted and awarded the sum of =N20.00 per day till the date of the High Court judgment to the respondent as loss of use. I have already stated that in law, if the respondent proved his entitlement to the award, he was entitled thereto till the date of judgment.
I must observe that the respondent’s case was that =N20.00 a day was his net income. His evidence was to the effect that he was making at least this sum of =N=20.00 everyday. I take it that to say that he was making at least =N20.00 per day was another way of saying that it was his minimum or net income.
The outstanding question is whether, on the above facts, the Court of Appeal was right to have held that he proved the item of special damage. In this regard, I must bear in mind the statement of principle by this Court, per Coker, J.S.C., in Oshinjinrin & Ors. v. Alhaji Elias & Ors. (1970) 1 All N.L.R. (Part 1) 153 at p. 156, where he stated:
“Undoubtedly the rule that special damages must be strictly proved applies to cases of tort. In effect the rule requires anyone asking for special damages to prove strictly that he did suffer such special damages as he claimed. This however does not mean that the law requires a minimum measure of evidence or that the law lays down a special category of evidence required to establish entitlement to special damages. What is required is that the person claiming should establish his entitlement to that type of damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head, otherwise the general law of evidence as to proof by preponderance or weight usual in civil cases operates . ”
There can be no doubt, from what I said above, that it is a type of special damage to which a successful plaintiff in a case of detinue would be ordinarily entitled. As for whether he, in fact proved entitlement to it I must point out that, as the above dicta in Oshinjinrin’s Case bear out, proof of special damage is not radically different from the general method of proof in civil cases. It is equally proved on a balance of probability. Where the plaintiff pleads the special damage with particularity and gives some evidence of it and the defendant does not challenge or contradict the evidence given, he has discharged, his onus of proof and, unless the evidence is of such a quality that no reasonable tribunal can accept it, it ought to be accepted. This is because where evidence called by the plaintiff in a civil case is neither challenged nor contradicted, his onus of proof is discharged on a minimal of proof. See S.O. Nwabuoku v. P.N. Ottih (1961) 1 AllN.L.R. 487. This principle has been applied in proof of special damage by the Privy Council. In Boshali v. Allied Commercial Exporters Limited (supra) at pp. 920-921 it was applied by the Privy Council to restore an award of special damage by a court of trial. It was also applied by this Court in the case of Ukoha v. Okoronkwo (supra). On this principle, it appears to me that the Court of Appeal was right to have accepted that item of special damages as having been duly established in view of the state of the pleading and the uncontradicted and unchallenged evidence to which I have referred above.
For the above reasons I dismissed this appeal with costs on the 23rd of January, 1989, as completely unmeritorious. I have now given my reason for doing so.
OBASEKI, J.S.C.: On the 23rd day of January, 1989, after reading the briefs of argument, studying the record of proceedings and judgment of the Court of Appeal and the High Court and hearing counsel in oral argument in amplification of their briefs, I dismissed the appeal for lack of merit and reserved my reasons for the judgment for delivery today. 1 now proceed to give them.
However, before today, I had the privilege of reading the draft of the Reasons for Judgment just delivered by my learned brother, Nnaemeka-Agu, J.S.C. The opinions on the issues for determination in this appeal expressed therein are in accord with mine and I hereby adopt them as my own.
The claim endorsed on the writ of summons taken out in the High Court was:
(1) for the return of plaintiffs commercial vehicle registration No.WC 4102 or its value;
(2) =N=20.00 per day for loss of income as a result of the wrongful seizure from the 21st day of May, 1972 at Ile-Ife;
(3) =N=1 ,000.00 general damages for the wrongful seizure and detention of the said vehicle.
The plaintiff/respondent had bought the vehicle from the defendant/appellant on credit but failed to meet up with the payment of the installments as they fell due. Consequently, the defendant in the belief that the agreement was a hire-purchase agreement, seized the vehicle from plaintiffs driver. £ The defendant did not deny complaint of the seizure of the vehicle but maintained that he sold it to the plaintiff on hire-purchase. The agreement was admitted as Exhibit B.
The learned trial Judge, Agbaje Williams, J., holding that there was no consideration to ground Exhibit B dismissed the claim.
On appeal to the Court of Appeal, the decision was reversed and the C plaintiffs claim for the return of the vehicle or =N=2,400.00 its value. The Court of Appeal also awarded the =N=20.00
per day loss of profit from 21st May, 1972 to 16th July, 1976. This sum amounted to =N=30,320.00.
The defendant was dissatisfied with the judgment of the Court and hence the appeal to this Court.
The main issue was the issue of construction of the contract document Exhibit B. Exhibit B shows on the face of it that it was a credit sale not hire-purchase so the issue of liability was settled against the appellant.
The other issue properly raised is the issue of excessive award of loss of earning based on =N=20.00 per day. Learned counsel for the appellant was unable to show that the award was made on wrong principle or that there was no pleading or evidence to support the award of =N=20.00 a day as loss of revenue. The evidence of =N=20.00 a day given by the respondent was uncontradicted. He was not even cross-examined on it.
What is required of proof of special damages is that the person claiming should establish his entitlement to the type of damages by credible evidence that would convince the Judge that he is entitled to an award under that head. See Osinjinrin & Ors. v. Alhaji Elias & Ors. (1970) 1 A11N.L.R. (Part F 1) 153 at 156.
In the absence of proper reason why uncontradicted evidence should not be accepted a trial Judge must accept it and act on it; Nwabuoku v. Ottih (1961) 1 All N.L.R. 487.
It was for the above reasons and the reasons given by my learned brother, Nnaemeka-Agu, J.S.C., that I dismissed the appeal.
NNAMANI, J.S.C.: On 23rd January, 1989, this appeal came before this Court. Having read the records of proceedings, the briefs of argument filed by the parties, and having heard oral argument, I was satisfied that it lacked substance and I dismissed it. I indicated that I would give my reasons for that judgment. I now do so.
” Before now, I had the advantage of reading in draft the reasons for judgment just delivered by my learned brother, NNAEMEKA-AGU, J.S.C. and I entirely agree with them and adopt them as my own.
One ground of appeal was filed by the appellants against the judgment of the Court of Appeal, Ibadan Judicial Division. The ground, without any particulars, read,
“The Court of Appeal, erred in law in awarding damages for loss of use of the vehicle at ££20 per day from 21st May, 1972 to 16th July, 1976 when it is settled principle that a party to an action must take all reasonable steps to mitigate his loss and when it was clear from the printed records and the evidence that the Respondent failed to prove strictly that he earned ££20 per day from the vehicle.”
The complaint of the appellants in their brief of argument was, therefore, that-
“in awarding damages for loss of use of the vehicle at =N=20.00 per day from 21st May, 1972 to 16th July, 1976, the Court of Appeal failed to take into consideration the settled principle that a party to an action must take all reasonable steps to mitigate his loss.” I shall limit myself in this concurring reasons to that part of the appellant’s complaint that this claim of =N=20 per day was not strictly proved. It has to be recollected that in his claim against the appellants, the respondent claimed –
“the sum of =N=20 per day for loss of income as a result of the wrongful seizure from the aforesaid date of seizure until possession is delivered.”
In paragraph 9 of his Statement of Claim, he averred as follows:-
“9. At the material time the plaintiff as a professional transporter had only these three vehicles and when two of them broke down, the plaintiff depended and still depends on the earnings realised from the only one remaining vehicle No. WC 4102 for his trade and for the maintenance and upkeep of himself and his family and for the discharge of his obligations under the afore-mentioned agreement. The average net income according from (sic) this said vehicle alone was =N=20.00 a day.”
In his evidence in Court, the respondent at page 26 of the record said, “at the time the Defendants seized the vehicle WC 4102,1 was realising at least =N=20 per day.”
Against all this, the appellants in paragraph 3 of the Statement of Defence merely denied paragraph 9 of the Statement of Claim. The 1st appellant and his only witness at the trial made no mention either to the evidence of the respondent on the daily earning of the vehicle.
In his judgment, the learned trial Judge, Agbaje Williams, J. (as he then was) said, of the =N=20 as follows:-
“The plaintiff said he was making =N=20.00 per day on WC 4102. He did not, however, say whether this was gross or net. He also said that at the time of its seizure it was worth =N=2,400.00. We only have his ipsissima verba for these two testimonies, and no driver or account book as to the first claim, or independent valuer as to the second, has been procured to prove them.”
The learned trial Judge rejected the claim. Of course he had dismissed the claim in its entirety as he held that the seizure of vehicle WC 4102 was not wrongful. From what I said earlier, it seems to me that the pleadings and evidence given by the respondent on the daily earning of =N=20 was not really challenged or controverted. As I indicated above, the respondent was not cross-examined on this and I cannot see the need for him to call his driver or tender a book of account as the learned trial Judge held necessary.
The Court of Appeal having held that Exhibit B succeeded the original hire purchase agreement between the parties, and that the appellants wrongfully seized respondent’s vehicle, awarded “for the loss of use of the vehicle up to the date of judgment of the lower court in the sum of =N=20.00 per day.” The Court did not find it necessary to go into details as to the evidence accepted by the learned trial Judge as to the =N=20. It, however, upset the learned Judge’s judgment.
I am of the view that the finding of the learned trial Judge must fall into one of these areas in which an appellate court can interfere. The conclusion is as a result of an improper evaluation of the evidence on this issue before him. I hold, therefore, that the =N=20 daily earning was duly proved. As to whether there ought to be mitigation, and as to the damages recoverable in an action for detinue as is the action here, I shall adopt the opinions in the lead reasons. See Darefooh vs Karam 7 W. A.G A. 113.
It was for these reasons, therefore, and the more detailed lead reasons for judgment, that I dismissed the appeal.
KAWU, J.S.C.: I have had the advantage of reading in draft the lead judgment of my learned brother, Nnaemeka-Agu, J.S.C., which has just been delivered. I am in complete agreement with him that this appeal ought to be dismissed.
At the High Court of Justice of Oyo State, sitting at Ile-Ife, the respondent instituted an action against the appellant claiming from him the return of his commercial vehicle with registration number WC 4102 which was seized and detained by the defendant, or its value =N=2,400.00. He also claimed the sum of =N=20.00 per day for loss of income as a result of the seizure.
All the respondent’s claims were dismissed by the High Court on the 16th July, 1976. There was an appeal to the Court of Appeal which was allowed. In particular the Court of Appeal in its judgment allowed the respondent’s claim for the loss of use of his vehicle at =N=20.00 per day from the date of seizure to the date of the judgment of the High Court. This appeal is against the judgment of the Court of Appeal.
The main complaint in this appeal is that the respondent had not adduced sufficient evidence to justify the amount of =N=20.00 per day for the loss of the use of his vehicle. In my view there is no merit whatsoever in this complaint. In the trial court the respondent, as plaintiff pleaded this claim in paragraph 9 of the Statement of Claim as follows:-
“9. At the material time the plaintiff as a professional transporter had only these three vehicles and when two of them broke down, the plaintiff depended and still depends on the earnings realised from the only one remaining vehicle No.WC 4102 for his trade and for the maintenance and up-keep of himself and his family and for the discharge of his obligations under the afore-mentioned Agreement. The average net income according (sic) from the said vehicle alone was =N=20.00 a day.”
At the trial the respondent gave evidence and with regard to the averments in paragraph 9 of his Statement of Claim (supra) he testified as follows:-
“The vehicle WC4102 was tested and certified roadworthy by the Motor Traffic Division on 20/5/72. On 21/5/72, it was seized by the Defendant. At that time it was plying Ife/ Oshogbo route for me. Rasaki Ademiluyi who was the driver employed by me took it out on 21/5/72. But came to me thirty minutes later on foot to report that the vehicle had been seized from him by the Defendant. The defendant, despite entreating by me and by two emissaries whom I sent to him and who were his friends, refused to release the vehicle to me. ………………..
……………………… At the time the Defendant seized the vehicle WC 4102,1 was realising at least =N=20.00 per day. The vehicle itself was worth at the time of seizure £1,200 (=N=2,400.00). I want the court to award me =N=1,000.00 for unlawful or wrongful seizure of the vehicle, also =N=20.00 for every day of the seizure from May 21, 1972 till the Defendant release the vehicle to me, I also want =N=2,400.00 being the value of the said vehicle.”
It is to be added that although at the end of his examination-in-Chief, the respondent was cross-examined extensively, not a word was raised against the evidence relating to the =N=20.00 income he realised daily from the use of his vehicle before its seizure by the defendant. His evidence on that issue went unchallenged and uncontradicted. In the circumstance, in my view, the Court of Appeal was absolutely justified in awarding him the amount claimed – See Obi Obembe v. Wemabod Estates Ltd. (1977) 5 S.C. 115 at 139.
It was further submitted on behalf of the appellant that since the respondent had failed to take all reasonable steps to mitigate the loss caused by the defendant, he should not have been awarded the amount claimed. The case of British Westinghouse Co. v. Underground Electric Co. (1912) A.C. 673 at p.689 was cited in support of this submission.
It is, of course, a well settled principle of law that a plaintiff is required to take all reasonable steps to mitigate the loss resulting from the defendant’s wrong, as no damages will be awarded in respect of any part of the loss which he could have averted by taking reasonable steps to do so. But the onus of proof on the issue of mitigation is on the defendant and if he fails to discharge the burden, the damages proved will be awarded – Garnac Grain Co. v. Faure & Fairclough Ltd. (1968) A.C. 1130, at 1140. In this case the appellant has, in my view failed to discharge the burden. The appeal fails in its entirety and it is hereby dismissed. The judgment of the Court of Appeal is hereby affirmed with =H500.00 costs awarded to the respondent.
BELGORC, J.S.C.: I had a preview of the reasons for judgment of my learned brother, Nnaemeka-Agu, J.S.C. and I agreed for the reasons advanced by him. It is settled from several decided cases that a party who has passed through the grill of the High Court and the Court of Appeal cannot in this court start on a new case. A matter not raised in the pleadings at the trial Court and not adverted to in the Court of Appeal cannot be raised in this Court without leave; and if leave is sought to raise such an issue, the party applying so to do must have an uphill task indeed. In the first place the new issue must be of such a nature that it was not available for canvassing in the lower Courts not through negligence but was a hidden fact that came up too late, that is to say, after the case was decided. Secondly, if such a matter is a serious point of law or the Constitution as to fundamentally touch at the root of legality of the issue, in which case, a decision without the issue being looked into may diametrically place the Court in a position of condoning illegality or violation of the Constitution, the Court will allow the matter to be raised. The appellant never averred in his pleading at the trial Court the failure of the respondent to mitigate his loss; he never raised the issue at the Court of Appeal. The respondent clearly raised the issue of damages he suffered, and gave evidence in support; but the appellant, despite the long cross-examination of the respondent, never for a moment raised the issue of mitigation of damages. It is too late in this Court to raise this issue; it is unconscionable of him. Boshali v. Allied Commercial Exporters Ltd. (1961) 1 All N.L.R. 917, at 921; Ukoha & Ors. v. Okoronkwo (1972) 1 All N.L.R. (Pt.ll) 100 at 105; Obembe v. Wemabod Estates Ltd. (1977) 5 S.C. 115, at 139-140.
By the latter act of the parties, what existed between them was a contract of sale, for the hire-purchase agreement thereupon came to an end. The appellant who seized the vehicle was relying on hire-purchase agreement which was dead since the second agreement was reached. In essence, the vehicle now in issue was at the time of seizure not the appellant’s but that of the respondent. The respondent was therefore right to make a demand, as he did for the return of the vehicle. The gist of liability in detinue is the detention, wrongfully, of the plaintiff’s chattel. The action for detinue ensues when the defendant has in his possession the plaintiff’s chattel and on demand for the return of the chattel by the plaintiff, the defendant withholds it. Thus there must be demand by the plaintiff for the defendant to return the chattel and if the defendant on receipt of this notice of demand persists in keeping the chattel, he is liable in action for detinue. Unlike an action for conversion which is a purely personal action and judgment is for a single sum which is the value of the chattel at the date of conversion, detinue is in the form of an action in rem whereby the plaintiff seeks specific restitution of his chattel resulting in judgment for the delivery up of the chattel or payment of its value as assessed at the time of judgment and for damages for its detention. (See General and Finance Facilities Ltd. v. Cooks Cars (Romford) Ltd. (1963) 1 W.L.R. 644, at 650). I find nothing to fault in the decision of the Court of Appeal.
It is for the foregoing reasons and for the fuller reasons for judgment by Nnaemeka-Agu, J.S.C., that I dismissed this appeal on the 23rd day of January, 1989.
Appeal Dismissed.
