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[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]
Detinue-Plaintiff alleging existence of custom between defendant and plaintiff-Judge accepting evidence of plaintiff on the point-Evidence of defendant contradictory-Whether judge was right in finding for the plaintiff.
Detinue-Plaintiff’s claim in detinue with alternative claim in damages-Defendants selling goods in the meantime thereby making it impossible for them to deliver goods to plaintiff-Defendants liable in damages for loss of goods subject to rules on remoteness of damage.
Bentley for the appellant.
Cole for the respondents.
COKER, J.S.C. (delivering the judgement of the Court)—The appellants, the Bank of West Africa Ltd., now Standard Bank Nigeria Ltd., were the defendants in an action instituted in the High Court, Lagos, whereby the plaintiff, now respondent, claimed as follows:-
“The plaintiff’s claim against the defendant is for the delivery of the plaintiff’s cartons of rubber sponge sheets Nos. 71/22, 71/23, 71/24, 71/25 and 71/26 in the custody of the defendants which the defendants have refused to deliver.
Or in the alternative the plaintiff claims the sum of £13,725-1s-8d being general and special damages for the unlawful detention of the said goods since the 25th February, 1964.”
Pleadings were ordered to be delivered and were duly delivered. The plaintiff’s statement of claim averred in substance that :-
(ii) there was a custom between them whereby the plaintiff would request the defendants to clear his goods from the Customs for him and at his expense and the defendants would comply with those instructions and debit the plaintiff with all the costs and expenses of such clearance;
(iii) the plaintiff had on the 20th day of December, 1963, requested the defendants to clear on his behalf from the Customs two consignments of goods consigned to him by:-
(a) s.s.‘Shomron’, and
(iv) the defendants eventually cleared the goods ex-‘Tidra’ but have failed and/or refused to clear those ex-‘Shomron’;
(v) the defendants later cleared the said goods ex-‘Shomron’ into their stores but not until the goods had incurred a considerable amount of rent and other charges;
(vi) the defendants now insisted that they would not release the goods to the plaintiff unless and until he paid the Nigerian Ports Authority rents and charges as well as the cost of the goods.
On the other hand, the statement of defence denied liability to the plain-tiff as alleged or at all and in effect averred that:
(i) the defendants were unaware of any custom as alleged by the plaintiff since in any case such a custom would have been in contravention of the bank’s regulations;
(ii) the plaintiff did not request them to clear the goods on his behalf by letter on the 20th December, 1963;
(iii) they did clear the goods ex-‘Tidra’ on the arrival of the ship;
(iv) they did not clear the goods ex-‘Shomron’ on the instructions of the plaintiff but did so eventually on the instructions of their own principals; and
(v) they did and still do require the plaintiff to pay the cost of, and all charges and rents on, the goods before they could be released to him.
At the trial the plaintiff gave evidence and called three other witnesses to support the averments in the statement of claim. The defence called four witnesses in support of the allegations in their statement of defence. In the course of a reserved judgement, Omololu, J. acceded to the claims of the plaintiff and gave judgement for him awarding him damages in the total amount of £9,399-15s. On the issue of the custom alleged by the plaintiff, the learned trial judge found as follows:-
“I have carefully examined the evidence and I must say at once that formidable as the witnesses for the defence are none of them was categorical in telling me that there was no room for the practice alleged by the plaintiff… I believe the evidence of the plaintiff and his witnesses that there was a custom and practice in the way the plaintiff had alleged… I find sufficient evidence to substantiate the special arrangement alleged by the plaintiff… I find as a fact that the plaintiff was under the impression that the defendants had acted on his instructions and had cleared and stored the goods for him.”
The learned trial judge also found as a fact that contrary to the contention of the defendants on their pleadings but consistent with the evidence of some of the defence witnesses, the plaintiff did specifically request the defendants to clear the goods in question by virtue of a letter from him to the defendants dated the 20th December, 1963, and admitted in evidence as exhibit B.
On appeal before us it was contended on behalf of the defendants that the learned trial judge should not have found on the evidence that the custom alleged by the plaintiff was proved. The argument overlooks the fact that civil cases are proved by preponderance or weight of evidence. The learned trial judge, as undoubtedly he was entitled to, had accepted the evidence of the plaintiff and his witnesses on the point. He then rejected the evidence by which the defence had sought to counter the situation-evidence which did not categorically deny the existence of the custom alleged by the plaintiff and in fact directly contradicted the denial of the defendants that they had got no instructions from the plaintiff to clear the goods for him.
We think that the learned trial judge was perfectly justified in the view he took of the probative value of the evidence before him and on the question of liability we are in no doubt ourselves that the defendants have failed to show that the judgement was wrong.
It was however also argued for the defendants that the judge was wrong to have awarded damages to the plaintiff on the basis of the gross profit he would have made on the goods when there was evidence that he would normally have incurred some expenses on the goods in the course of selling them. On the question of damages, in the, course of his judgement the learned trial judge had observed as follows:-
“I find that, relying on this custom and practice with the defendants, plaintiff was entitled to refuse to pay the extra costs incurred by the negligence of the defendants and consequently he lost the goods of which the market price was £9,399-15s-0d. The defendants are liable for this loss.”
Touching on this point, there is evidence from the plaintiff to the following effect:-
“I would have sold the goods for £9,399-15s-ld. It is out of the £9,399,15s-1d that I would pay the wages, rent, depreciation, etc. Also tax, cost price.
Cost of the goods would be about £6,000 (with insurance, etc.). I would have a profit of £3,500 out of which I would have to pay for all the mortgages.”
This evidence was accepted by the learned trial judge; thus although learned counsel for the defendants elicited from the plaintiff the fact that he would have had to pay some expenses on the sale-of the goods he failed to pursue the point further and so obtain the actual amount of those expenses. As originally put the claim of the plaintiff was in detinue with an alternative claim for damages. The plaintiff would have been entitled in the event of his succeeding on this claim to an order for delivery to him of the goods. See Eberle’s Hotels and Restaurant Co. Ltd. v. Jonas & Bros.  18 Q.B.D. 459. We think that the argument of learned counsel on behalf of the plaintiff that he would still have been liable to the consignors for the cost-price of the goods or (as there was evidence of part-payment) whatever balance of it is still unpaid, is justified.
The evidence at the trial however reveals that in the meantime the defendants had sold the goods in dispute thereby making it impossible for them-selves to deliver the goods to the plaintiff even if such an order were made. The trial therefore proceeded on the basis, to the knowledge and with the concurrence of both parties, that a conversion had taken place and that the defendants were no more able to deliver the goods which were once in their possession. In those circumstances the defendants would be liable in damages for all that the loss of the goods meant to the plaintiff subject only to the rules as to limitations based on remoteness of damage. See Gallagher v. Shilcock [194912 K.B. 765; also Henry Ezeani v. Ejidike  1 All N.L.R. 402.
In the present case the acceptance of the plaintiff’s evidence coupled with the absence of evidence from the defendants challenging that, clearly entitled the judge to base his assessment of the plaintiff’s damages on the material before him.
All the grounds of appeal argued on behalf of the defendants must fail. The appeal therefore fails and it is dismissed. The appellants will pay the costs of the respondent fixed at 44 guineas.