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(Trading under the Name and Style of Bright Gravel and Granites Services)


F.S.C. 322/1961

15TH JANUARY, 1963

3PLR/1963/59 (FSC)






GEORGE BAPTIST AYODOLA COKER, AG. F.J. (Read the Judgment of the Court)



PRACTICE AND PROCEDURE – APPEAL – Damages – When appellate court will not disturb.

PRACTICE AND PROCEDURE – APPEAL – Fresh evidence – When allowed.

COMPANY LAW – Mortgage debenture – Production of by Registrar of Companies – Whether sufficient evidence of its registration.

PRACTICE AND PROCEDURE – COURT – Document not pleaded – Whether court can order production of. DAMAGES – Award of – When appellate court will not disturb. DAMAGES – Special damages – Must be specially pleaded and proved. EVIDENCE – Document not pleaded – Attitude of court.

PRACTICE AND PROCEDURE – EVIDENCE – Document produced from custody of Registrar of Companies- Whether sufficient evidence of its registration.

PRACTICE AND PROCEDURE – Pleadings – Document not pleaded – Ef­fect.

PRACTICE AND PROCEDURE – Pleadings – Special damages – To be spe­cially pleaded and specially proved.



J.O.B. Omotosho -for the Appellant.

Chief O. Moore, Q.C. (with him, Messrs. A.O. Opebi and G.M. Smith) – for the Respondent.


COKER, AG. F.J. (Delivering the Judgment of the Court): In this matter both parties before the court below have appealed to this court against the judgment of the High Court, Lagos (De Lestang, C.J.). The claim of the plaintiff against the defendant is for the sum of £5,000 representing special and general damages suffered by the plaintiff for wrongful attachment by the defendant of properties belonging to the plaintiff under a Writ of fieri facias.


At the trial, the evidence was to the effect that the plaintiff purchased from the Receiver of a company by name Thompson Moir & Galloway Ltd. the following articles, that is to say –


2 lorries

6 concrete mixers

2 block making machines, and

2 saw benches


at a price of £1,800. The purchase was effected by the plaintiff on the 14th February 1957 when payment was made to the Receiver in whose undis­puted possession the goods were at that time.

The evidence was to the effect that the Receiver was appointed by De­benture holders in whose favour the company, Thompson Moir & Galloway Ltd. had created a floating charge upon all their properties “and assets what­soever and wheresoever both present and future.” The Receiver appointed was a Mr. Barnes who normally resides in Ghana, but Mr. Barnes has ap­pointed as his Agent in Nigeria a Mr. Newman who also gave evidence on behalf of the plaintiff during the trial. On the 15th February 1957 a receipt was issued for that sum to the plaintiff and that receipt was produced as Ex. D. in the proceedings. After the payment for the lorries the plaintiff was in­formed by the Receiver’s Agent “that the goods were his and he could take them away.” On the following day, however, i.e. the 16th February 1957, the properties which were still at that time lying in the premises of Thompson Moir & Galloway Ltd. somewhere along Ikorodu road, were at­tached by the defendant under a writ of attachment issued by the High Court. The defendant refused to release the goods to the plaintiff, until the 2nd May 1958 when, according to the plaintiff, the goods had depreciated substantially and losses had been incurred by him on account of his failure to obtain possession of the chattels.


The case was tried in the High Court and judgment was given in favour of the plaintiff for a total of £940 representing:


(a)     £840 special damages being depreciation on the chattels for the period during which they were retained by the defendant, and


(b)     £100 being the loss sustained on account of his inability to hire out the chattels.


Against this judgment the defendant appealed to this court on the following three grounds of appeal:­


“1.     The learned trial Judge failed to direct himself that the plaintiff neither pleaded nor adduced evidence that the appointment of the Receiver was made in terms of the Mortgage Debentures given by Thompson Moir & Galloway Ltd. to the Bank of West Africa.


  1. In as much as the inter pleader proceedings and settlement bet­ween the parties were issues before the Court the learned trial Judge ought to have considered them as relevant when adjudicat­ing on the dispute between the parties and the learned trial Judge misdirected himself by finding that the appellant did not rely on these issues as defences to the action.


  1. The learned trial Judge misdirected himself by finding that the production of Ex. A from the custody of the Registrar of Com­panies raises the presumption without further proof that the said document was duly registered with the Registrar of Companies.”


On behalf of the defendant/appellant it was argued that there was no evidence that the Mortgage Debenture in pursuance of which the Receiver was appointed, was registered with the Registrar of Companies in this coun­try and that the mere fact that the Debenture was produced at the trial by the Registrar of Companies was not sufficient proof of its due registration. Counsel also suggested that the appointment of the Receiver was not pleaded by the plaintiff but on the face of paragraph 2 of the plaintiff’s amended statement of claim this contention was dropped during the argu­ment of the appeal. Adverting to the point about registration, Counsel for the appellant stated that all that was required to effect registration of a De­benture creating a floating charge on the properties of a company was filing of that document with the Registrar of Companies. In this case the Registrar of Companies testified at the trial on behalf of the plaintiff/respondent and produced from his custody the Mortgage Debenture, on clause 10 of which the appointment of the Receiver was based. No objection was made to the production of this document although both parties were represented by Counsel. The learned Chief Justice who heard the case drew the inference that production of this document from the Registrar was sufficient evidence of its registration and we see no reason for taking a different view, it being manifest that no other reasonable explanation could be given of the posses­sion of this document by that officer except that it was filed with him. Be­sides, there is on record the clear evidence of the Receiver’s local agent, which the court obviously accepted to the following effect:­


“The Mortgage Debenture under which he was appointed was executed in Ghana but registered here………… Receiver is ex­pressly empowered to appoint an Agent under the Mortgage De­benture. Appointment of Receiver was registered with the Re­gistrar of Companies in Lagos on 11.10.56………. Mortgage De­benture was registered in Nigeria.”


We take the view, which the learned Chief Justice took, that there was suffi­cient evidence on behalf of the plaintiff on which the finding that the Mortgage Debenture was duly registered in this country and that the ap­pointment of the Receiver was properly made thereunder, would be reason­ably founded. Grounds 1 and 3 of the defendant’s appeal therefore fail.


It was also contended on behalf of the defendant/appellant that “inter pleader proceedings and settlement between the parties” were issues before the court and that the learned trial Judge ought to have considered them as relevant when adjudicating on the case. In support of this contention, Coun­sel for the defendant/appellant referred our attention to passages in the re­cords which suggest that questions were asked about the existence of inter pleader proceedings between the parties. Counsel also referred to parag­raph 3 of the defendant’s statement of defence which avers that the defen­dant obtained judgment against Thompson Moir & Galloway Limited in the High Court on the 11th February 1957 for the sum of £3,025 with 40 guineas costs:­


“in Suit No. LD/281/56 of the High Court and in consequence an attachment of properties specified in paragraph 1 of the State­ment of Claim was made on the 16th February 1957 under a Writ of Fifa.”


Counsel finally argued that evidence having been given to the effect that there were inter pleader proceedings the legal consequences of such pro­ceedings should have been taken up by the Court.


I must express that I cannot appreciate the point in the argument of Counsel and if it involves that the Court should by itself ask parties to pro­duce a document which was neither pleaded or expressed to be relied upon by either of the parties and as in this case not given in evidence by either of the parties, I cannot subscribe to such argument. Counsel referred to the case of Robson v. Smith (1895) 2 Ch. 118 and submitted that the title of the property vested with the execution creditor and not with the Receiver. It is apposite to point out that this point is not covered by the ground of appeal and it is also pointed out that in the case to which Counsel referred the point decided was that the title of a garnishee which had already vested must be preferred to that of a Receiver who was appointed subsequent to the gar­nishee order. In this appeal the evidence accepted by the learned Chief Jus­tice was to the effect that the Receiver was duly appointed under section 10 of the Mortgage Debenture which was produced in evidence; that after his appointment the defendant/appellant visited the offices of Thompson Moir & Galloway Ltd. and consulted with the Receiver and that it was after the knowledge of those facts that he proceeded to levy execution on the proper­ties of the company. On the wording of the 2nd ground of appeal, I would take the view that no argument of any merits had been advanced and that ac­cordingly that ground of appeal must and does fail.


Before the hearing of the appeal the defendant/appellant filed a motion in this court asking for:


  1. An order granting leave for the applicant/respondent to adduce at the hearing of this trial additional evidence by means of af­fidavit attached to this motion, and


  1. An order to file and argue the additional ground of appeal to wit, “that the respondent deceived the court below by misrepresent­ing essential evidence relating to the inter pleader proceedings which preceded the present action.”


This motion was argued by Counsel on behalf of the defendant/appellant. Arguing the motion Counsel referred us to the provisions of Order 7 rule 24 of the Rules of the Federal Supreme Court which reads as follows:­


“It is not open as of right to any party to an appeal to adduce new evidence in support of his original case; but, for the furtherance of justice, the Court may, where it thinks fit, allow or require any new evidence to be adduced, such evidence to be either by oral examination in Court, by affidavit or by deposition taken before an examiner or commissioner as the Court may direct. A party may by leave of the Court allege any facts essential to the issue that have come to his knowledge after the decision of the Court below and adduce evidence in support of such allegations.”


Counsel also submitted that the inter pleader proceedings which took place between the parties were the basis of the present claim and stated that al­though the defendant/appellant tried before the proceedings to obtain a cer­tified true copy of those proceedings, he could not do so throughout the trial. It is clear on the records that no application whatsoever was made by either or both of the parties for the adjournment in order to enable them to pro­duce a copy of the inter pleader proceedings during the trial. Indeed after the plaintiff and his first witness had given evidence on the 1st September 1960, the case was adjourned until the 1st November 1960, during which time, in our view, the defendant/appellant could have obtained a copy of the proceedings if he so desired. Moreover the learned Chief Justice who heard the case would undoubtedly have made a special order for expedition of those records in the Registry if such an order had been asked for.


The law with respect to the production of further or additional evidence on appeal is summarised briefly by LORD DENNING, L.J. as follows:­


”To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evi­dence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the re­sult of the case, though it need not be decisive; thirdly, the evi­dence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be in­controvertible.”


See Ladd v. Marshall (1954) 1 W.L.R. 1489 at p. 1491. The pleadings show clearly that neither of the parties intended to rely on the inter pleader pro­ceedings which it is now sought to put in evidence, and it is clear that copies of the inter pleader proceedings could certainly with some, let alone reason­able, diligence have been obtained for use at the trial. It is well to point out that the case of the defendant at the trial certainly excludes any references to the findings on the inter pleader proceedings. In those circumstances we came to the conclusion that no grounds have been shown, either in the affidavit supporting the motion or in the argument of Counsel from which we could come to the conclusion that we ought to exercise our discretion to allow fresh evidence to be called.


In the case of Hip Foong Hong v. Neotia & Co. (1918) A. C. 888 it was held by the Privy Council that such evidence to be admitted at the hearing of the appeal must be “of such a character that it would so far as can be foreseen have formed a determining factor in the result.” See per Lord Buckmaster at page 894. The application to argue additional ground of appeal is obviously based upon the result of the application to adduce additional evidence and as we have come to the conclusion that no justifiable grounds are shown why we should grant leave to call additional evidence, that application did not therefore arise. Both applications therefore failed and were dismissed.


The plaintiff in the court below has also appealed against the damages awarded him by the court below and his grounds of appeal are as follows:­


”1.     The learned Trial Judge erred in law in giving judgment for only £100 as loss of profit when the evidence adduced by the plaintiff/ appellant remained uncontradicted by the respondent through­out the proceedings.


  1. The learned Trial Chief Justice erred in law in not awarding gen­eral damages in favour of the plaintiff/appellant when the plain­tiff/appellant gave uncontradicted evidence of the tort which is subject matter of the action and on which he the plaintiff/appel­lant was not cross examined.


  1. The learned trial Judge misdirected himself in law when he (the Learned trial C. J.) asserted in his learned judgment that “a plaintiff cannot in my view, have both depreciation in full on loss of profit, in respect of the same goods as it seems to me that there would be duplication of damages” when the tort complained of is not detinue but trespass to goods.”


In support of the grounds of appeal learned Counsel appearing for plaintiff submitted that the tort of trespass to goods was proved by the plaintiff in the court below and that the amount of £100 awarded him as special damages for loss of profit on the hiring of the chattels was unreasonable and that the amount of £2,600 claimed by him and in respect of which he gave unchal­lenged evidence at the trial should be substituted for the amount of £100. It was clear that the learned Chief Justice who tried the case on a consideration of all the evidence, resolved the whole question of damages involving the award to the plaintiff of special damages for depreciation of the chattels in question and indeed concluded that it would be a duplication of damages if the plaintiff was to get full damages for depreciation and also for loss of pro­fit on hiring out the chattels concerned. We take the view also that the claim of the plaintiff to the effect that he would have realised about £200 a month from the hire of the chattels could only amount, if proved, to a gross claim it being reasonable to conclude that allowances must be made for depreciation and other factors or contingenices which must affect the realisations from the hire of these chattels. Mr. Newman testifying on behalf of the plaintiff did state that the lorries were in a poor state. No evidence was given by the plaintiff with respect to these contingencies in order to satisfy the court of the actual amount which the court should award in this connection, and in his judgment the learned Chief Justice dealt with this point as follows:­


“I have no reason to doubt the plaintiffs evidence that the goods could have been hired out, but I am far from satisfied that such hiring would have been continuous or of long duration having re­gard in particular to the condition in which the goods appear to have been. Taking all these factors into consideration I would only allow £100 for loss of profits on the goods.”


This finding clearly implies that the trial Judge was not satisfied with the evi­dence submitted by the plaintiff in proof of special damages which must not only be specially pleaded but also specially proved. We have come to the conclusion that the amount awarded by the trial Judge was reasonable in view of the evidence which was placed before the court, and no justifiable reasons have been argued before us to warrant our interfering with the award made by the learned Chief Justice.


In the event both the appeal by the defendant against the judgment of the High Court and the cross-appeal of the plaintiff against the damages awarded fail and both are accordingly dismissed. In view of the fact that both parties have failed I will make no order for costs on these appeals.


BRETT. F.J.: I concur.


TAYLOR, F.J.: I concur.


Appeal Dismissed Cross-Appeal Dismissed.


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