[PDF copy of this judgment can be sent to your email for N300 only. Just order through email@example.com and firstname.lastname@example.org or text 07067102097]
(1976)11 S.C. 32
Dr. G.O.K. Ajayi (with him Mr. Onalaja & Miss Bassey) – for the Appellant
Mr. A. Adesanya – for the Respondents
Tort – Detinue – Return of goods detained – Overdraft on personal guarantee – Documents deposited with bank for safe- keeping – Whether deposited by way of security.
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]
IDIGBE, J.S.C.: (Delivering the Judgment of the Court):
In this action the plaintiff is Chief J. K. Odumosu and the defendants are African Continental Bank Limited. We have before us an appeal by the plaintiff from a judgement of Bakare, J. dated the 5th of June, 1974, in favour of the plaintiff by which it was ordered:
(1) that defendants should return to the plaintiff three documents of title to land and a life policy of insurance deposited with the defendants by the plaintiff; and
(2) that the defendants should pay to the plaintiff the sum of N8,000 (eight thou-sand naira) as “general damages”.
The award is a sequel to the plaintiff’s action in detinue in which he claimed from the defendant:
“(1) the return to the plaintiff of the documents, the particulars of which are hereinafter given, which the plaintiff deposited with the defendant for safe custody and which the defendant has refused or failed to surrender to the plaintiff despite repeated demands by the plaintiff.
(Particulars of the documents in question were then set out);
(2) the sum of fifty thousand pounds (£50,000.00d) being special and general damages for the wrongful detention by the defendant of the said documents…………………………………….. 11
Summarily, the plaintiff contends that the amount of N8,000 awarded by the learned trial judge as damages was inadequate and that he (the learned judge) erred in law in holding “that the evidence before him fell far short of establishing special damages.
We will now set out the facts, not only so much of them as are materiai to the issues raised in this appeal, because it is our considered view that a detailed re-view of the entire facts before the trial court not only assists in throwing adequate light on the arguments urged upon us, but certainly explains some of the observations which we have found necessary to make in some of the passages in this judgment.
The case for the plaintiff, who is a dealer in electrical and allied products, may be summarised thus: Prior to January, 1970, he as a customer of the defendant bank enjoyed overdraft facilities up to a limit of £20,000.00d (twenty thousand pounds) on his own personal guarantee (i.e. without producing for the benefit of or depositing with, the bank any form of security), and on the terms that subject to “satisfactory operation of his account” the overdraft was subject to “automatic renewal” at the end of every calendar year. In or about January, 1971, consequent upon a burglary committed in his house, he lodged with the defendants, for purposes of “safe keeping” (i.e. safe custody) some of his precious documents which “survived the burglary’ (i.e. three conveyances, instruments of title to land and one life Policy the particulars of which were duly set out in the endorsement on his writ of summons and in his pleadings). These documents which consist of:
(a) two land certificates of title to two landed properties situate in the Surulere district of Lagos valued at £45,000 and £35,000 respectively;
(b) one instrument of title in respect of landed property situate at Bashua Village in the Shomolu district of Lagos valued at £25,000; and
(c) a Life Policy of Insurance for £3,000, shall hereafter in this judgment be together referred to as “the four vital documents”.
In early February, 1971, a few weeks after the deposit of these documents with the defendants he (the plaintiff) asked for, and was granted by the bank, what he described as “a short-term loan of £25,000 for a period of three weeks” and he claimed that this was repaid on 25th February, 1971. Thereafter plaintiff continued to operate his account “within the agreed overdraft limit” but by July, 1972, his ac-count with the defendants was overdrawn “to the tune of £17,531/11/- (seventeen thousand five hundred and thirty-one pounds and eleven shillings)”; he emphasized both in his pleadings and testimony that the four vital documents were not de-posited with the defendants “by way of equitable mortgage”.
In 1972, after an “overseas business tour’ during which several business contacts were made by him, the plaintiff asked for Letters of Credit to be opened by the defendants first, in favour of a Taiwan trading firm (hereinafter referred to as ‘The Taiwan Firm”) with whom he successfully arranged for a “standing order for various table and standing fans to the value of $26,298.76 (i.e. twenty-six thousand two hundred and ninety-eight dollars and seventy-six cents)” and, later, in favour of another Taiwan Electrical firm – “IH-SHIN Electrical Works” – (hereinafter referred to as the “IH-SHIN Company’) for the supply of goods worth $24,000 (twenty-four thousand dollars); thus the plaintiff has asked the defendant bank for Letters of Credit to the total value of $50,298.76 which, inclusive of bank charges at the time was the equivalent of about £N23,000. Letters of Credit were duly opened, as requested, in favour of the Taiwan firm and IH- SHIN Company (hereinafter referred to as the “Taiwan Companies”) who refused to accept the defendants as credit-worthy. As the plaintiff did not have ready cash he approached two other banks (the National Bank and the Bank of America) who each promised to “accommodate him” (i.e. lend money to him by opening Letters of Credit in favour of the Tai-wan Companies) if he produced adequate and satisfactory security to cover the loan. Consequently, the plaintiff demanded from the defendants the return of the four vital documents making it clear to them the purpose for which they were required: but the defendants refused to return the documents. Later the plaintiff arranged with another firm – Messrs. Adebowale Electrical Industries (hereinafter referred to as “Adebowale Company”) who, as the plaintiff claimed, were willing to extend credit facilities to the tune of £40,000 and 25% discount to the plaintiff on all purchases of electrical goods, provided he deposited with the firm adequate security to cover the facilities extended to him. Similarly, Phillips Nigeria Ltd., to which the plaintiff was heavily indebted was prepared to resume trade with him, extend credit facilities to him and allow him, as well, 25% discount on all purchases provided he deposited with them adequate security. Once again, he demanded the return of his four vital documents from the defendants who refused to deliver them to him.
The defendants who did not call any witness at the trial stated Inter alia in their pleadings that the deposit of the four vital documents by the plaintiff ‘Was by way of security’ (i.e. “equitable mortgage”) to secure the loan of £25,000 which the plaintiff asked for in February, 1971, at a time when his account was already over-drawn “to the tune of £8,000. As earlier on pointed out, the learned trial judge held that the documents were deposited “for safe custody” with the defendants who “mistakenly” considered they had an equitable charge over them; and having held on to these documents “unjustifiably’, the plaintiff’s claim against them (the defend-ants) must, in his judgment, succeed. The defendants appealed from the said judgment on the grounds, inter alia, that they had a lien on the four vital documents; the plaintiff cross-appealed from the said judgment for the reasons already state.
At the hearing, the appeal by the defendants was struck out on grounds of procedural error and a subsequent application before us, to regularise the error and thereby restore their appeal, was withdrawn by learned counsel for the defendants who considered that such an application had been overtaken by events; the events culminating in the creation, in the interim between the striking out of the defend-ants’ appeal and the subsequent application for restoration of the same, of the intermediate Appeal Court -’The Federal Court of Appeal” – to which the defendants intend to pursue their appeal. The subsequent application by the defendants for restoration of their appeal was, accordingly, struck out. The defendants’ appeal having been struck out we feel bound:
(1) to consider this appeal on the basis that the defendants unjustifiably held on to the four vital documents; and
(2) will say nothing in this judgment which is likely to, or could in any way, reflect on the merits of any subsequent appeal by the defendants.
Henceforth, all reference in this judgment to an appeal will be to the cross-appeal of the plaintiff who, hereafter will be referred to as the “appellant”; and the defendants will be referred to as the “respondents”. On the 20th October, 1976, after listening to the arguments and submission from both counsel for the appellant and the respondents we dismissed this appeal for reasons we are now about to give.
A number of grounds, unduly prolix and in many respects irregular and improper, as in the main they were really arguments or contentions in support, rather than grounds, of appeal, were filed; and we do not propose to set them out here since, in the end, learned counsel for the appellant offered to argue, and indeed argued, all the ground together. The sum of his argument was that the learned trial judge erred in law in regarding the evidence referred in support of the appellant’s claim for special damages as “speculative”; and consequently failed to evaluate properly and adequately the said evidence. Had he properly directed him on the law relating to proof of special damages, in circumstances similar to this case, the learned trial judge would have made an award in respect of special damages claimed by the appellant; and we were directed to a number of cases, most of which were hardly relevant to the issues and facts in this appeal. The portion of the judgment of the learned trial judge which is the subject of the foregoing com-plaint reads:
………..while I have no doubt that the plaintiff would have made some profit if he had succeeded in the importation of the electrical goods from Taiwan, I am not impressed with his speculation of a hundred per cent profit. The evidence before me falls far short of establishing special damages…………
Earlier on, the learned trial judge had said in a passage of his judgment:
‘The plaintiff claims £50,000 (N100,000) special and general damages. He gave evidence that if he had succeeded in importing the goods for which he required Letters of Credit, he would have made more than hundred per cent profit which he estimated at N18,000 from the transaction with Ih-Shin Electrical Machinery Works Ltd.
Adebowale Electrical Industries Ltd. was prepared to allow the plaintiff credit facility to the limit of £40,000 …….. and twenty-five per cent discount on all purchases from the Company. The plaintiff estimated that he lost N20,000.00 on that deal.
The plaintiff had had business dealings with Phillips Nigeria Ltd. to which he was indebted. The Company was prepared to allow him credit facility with twenty five per cent discount on purchases…………”
The (earned trial judge then referred to a passage in the judgment of Coker, J.S.C. delivering the judgment of this Court in Oshinjinrin & Ors. v. Alhaji Elias & Ors. (1970) 1 All N.L.R. 153 dealing with the issue of proof of special damages, which reads:
……..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.”
We pause to observe, once again, that this claim is in detinue, primarily the claim in this type of action is not for damages but for the return of the specific goods wrongfully detained (or their value as assessed). Damages, however, if any is proved to have been sustained, will, in addition to an order for delivery of the chattels (or specific goods) be awarded. (See Anderson v. Passman, Gent & Ors. (1835) 7 C. & P.193; also 173 E. R. 86 at 86 Coleridge, J.). The measure of damages for detention of goods (i.e. in detinue is peculiar and the normal measure is usually –
(1) the market value of the goods where delivery of the specific goods detained has not been ordered; and
(2) even in the cases where an order for the return of the goods has been made, a sum of money representing the normal loss through the detention of the goods; and this (when applicable) quite often is the market rate at which the goods could have been hired during the period of detention.
In those cases, therefore, where the goods, the subject matter of the action for detinue, have not (as such) been profit-earning it is extremely difficult to assess the damage to the plaintiff (see Somervell & Romer, L.J.J. in The Medianna (1900) A.C. 113 at 246, 252 and 257).
However, the plaintiff is entitled to damage for loss arising from his inability to make use of the specific goods; and this can be recovered under either head of damage – general or special. Dealing with the subject of damages in detinue, the learned authors of Halsbury Laws of England (in Vol. 38 of the 3rd Edition (1962) at p.795, article 1321, state:
“Apart from the question of the general value of the goods the plaintiff may be able to show that he has suffered special damage by their detention or conversion. Such damage, ff claimed, and if the reasonable forseeable result of the defendant’s unlawful acts, is recoverable ………….” (Italics supplied)
Where however, the plaintiff particularises items of special damage, then he must establish the same by evidence.
At this stage, we will draw attention to the observations by the learned authors of Mayne & McGregor on Damages on the expression “General and Special Dam-age” to the effect that –
“the terms are used in a variety of meanings and if these meanings are not kept separate the indiscriminate use of the terms only spells confusion” – (see Mayne & McGregor on Damages 12th Edition (1961) Articles 9, 10, 11 at pages 11, 12 & 13).
Thereafter the learned authors dealt with three meanings of the expression and it is with what they describe as the second and third “meanings” (and these relate to pleadings and proof) that we are concerned in this appeal. Much of the contention and submission in support of this appeal, in our view, stems from failure on the part of learned counsel (for the appellant) to draw a clear line of distinction between the rules relating to proof of special and general damages.
“General damages ……………………….. are such as the jury may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of reasonable men………………………..”
Prehn v. The Royal Bank of Liverpool (1870) L. R. 5 Exch. 92 per Martin, B.)
From the point of view of proof (evidence), general damages are classified into two categories –
(1) that in which they (damages) may either be inferred (e.g. in cases of defamation or of personal injury to plaintiff when pain and suffering may be presumed); and
(2) that in which they will not be inferred but must be proved (for instance, dam-ages arising by way of general loss of business following an injury).
Even in regard to this later category evidence will not be allowed to be given by a plaintiff of loss of a particular transaction or customer (following the injury) with a view to showing specific loss for that is a matter which falls in the realm of special damage; and –
“if there be any special damage which is attributable to wrongful act that special damage must be averred and proved, and if proved will be awarded (See The Susequehanna (1925) A.C. 655 at 661 per Lord Dunedin).
Special damages, therefore, consist of items of loss which have to be particularised or specified in the plaintiff’s pleadings (as the appellant has done in the instant case) in order that he may be permitted to give evidence thereof and recover thereon. The significance of our observations in the above two paragraphs will appear later in this judgment when we make reference to the award by the trial court of N6.000 as “general damages”.
Now, what was the evidence produced in support of the appellant’s claim to special damages (the particulars whereof were set out in his pleadings)? With regard to his arrangements with the Taiwan Companies, and Adebowale Company, the appellant put in evidence:-
(1) Exhibits “H” and “H1” the pro-forma invoice” of the goods (the table and standing fans) which the Taiwan firm was to send to him had he produced letters of credit acceptable to that trading company; and
(2) Exhibit “L” a letter from the Manager of the Ih-Shin Company which made reference to “pro-forma. invoices” for all classes of goods ranging from ‘Talcum and dusting powder’, “cable rope and twine” and such vague items as “electrical insulating equipment”, “other articles of glassware £3,000”, “other bottles” to mosquito and sandfly nets” described in the said “pro-forma in-voice” (Exhibit “M2”).
He did say in his evidence that –
“I lost as possible profit over £9,000 from the transaction with Ih-Shin as a result of the refusal of the defendants to return my title documents ………… I know Messrs. Adebowale Electrical Industries………… I approached the Managing Director (who was called by the appellant to confirm that appellant had been asked to produce some security to cover credit facilities to be extended to him) to extend credit facilities to me to purchase goods from the firm up to a limit of £30,000……… (sic) I lost about £10,000 over this period if I had succeeded in doing business with Adebowale Electrical Industries ………………”
So much was the evidence adduced in support of the claim for special dam-ages by the appellant. While the above is, indeed, evidence on which to make some award in respect of general damages, it certainly cannot be regarded, no matter howsoever stretched, as evidence in support of special damage in the con-text of the present case; therefore, in so far as they were proffered to bolster the appellant’s claim to his “particular losses” (i.e. items of special damages) they are no doubt “speculative”. The situation here does not in any way compare with that in the case Adel Boshali v. Allied Commercial Exporters Limited (1961) 1 All N.L.R. 917 to which we were referred. In that case, the contract between the parties was executed, even if inadequately or improperly; as the goods ordered had actually arrived, even though they failed to conform to contract, the matter had gone be-yond the “speculation stage”. In the instant case, the contract was still, at best, executory; the goods not having been covered by Letters of Credit could not, on the strict terms of the arrangement between the overseas vendors and the appellant, be delivered; nor was there any proper evidence (at least the learned trial judge neither found nor accepted any) of the market value or selling price of any such goods at the time the contract was due for execution (i.e. 1972). The entire evidence on the subject was completely speculative and we think the learned trial judge was justified in his attitude to the claim for special damages and, in our view rightly declined to make any award on that head of claim.
There is need, we think, for comment on the award in respect of general dam-ages. Although there is no appeal from that award, we may mention, in passing, that the award is seemingly inordinate. As already pointed out a claim in detinue is basically for the return of the specific chattel detained or its value (as known or assessed); general damages for unlawful detention may, if any is established, be awarded (for they are not to be presumed in this type of action); and even then they are, generally, nominal, unless the evidence establishes a case for substantial award under this head of damages. In the circumstances of this case, the respondents knew the purpose for which the documents were required by the appellant; when, therefore, the appellant failed to pursue and conclude his arrangements with his overseas and local business associates because he could not get the documents, the respondents ought to be liable for damages following, by way of general loss, his inability to do so. The question really is whether the dam-ages suffered in this category (i.e. general damages) scaled as high as N8,000.00. In other words, in the light of our earlier observations on the measure and proof of damages in actions for detinue in particular, and, generally, on proof of general damages whether the evidence in this case supports the award of as much as N8,000 under this head of damages? That, however,. is a question we are not called upon to answer in this appeal. However, with regard to the question raised directly in this appeal, damages, which may result from the appellant’s inability –
(1) to sell (de facto) the goods which he might have received had he concluded his local and overseas business arrangements; and
(2) to sell the same at a profit, the credit facilities extended to, or discounts allowed in favour of, the appellant notwithstanding, are clearly matters which cannot be presumed; they are matters which call for specific proof (within the principles clearly stated by this Court in Oshinjindn’s case, supra) and such proof was, unquestionably, absent in the instant case.
Accordingly, we had no difficulty in dismissing this appeal immediately at the end of the arguments urged upon us on the 20th October, 1976. The respondents will have the costs of this appeal payable to them by the appellant which we fix at N213,000.