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18TH OCTOBER, 1956

WACA 203/1954

3PLR/1956/61 (SC)




M.C. NAGEON DE LESTANG, F.J. (Read the Judgment of the Court)




PRACTICE AND PROCEDURE – Statement of Claim – Amendment by Court – Propriety of.

PRACTICE AND PROCEDURE – Statement of claim – Writ of Summons – Relationship of.

TORT – Detinue – Applicable principles.



  1. O. Lambo (with F.O. Anyaegbunam) -for Appellant
  2. Somolu -for Respondent.



DE LESTANG, F.J. (Delivering the Judgment of the Court):

This is an appeal from the decision of the Supreme Court of Nigeria (as it was then called) sitting at Benin dismissing the appellant’s suit with fifteen guineas costs. From that decision the appellant is appealing to this Court.

The appellant instituted proceedings for the recovery of a kit-car, de­scribing his claim in the writ of summons thus:­

“the plaintiffs claim against the defendant is for the return of the plaintiffs Kit-car No. L7197, unlawfully detained by the defen­dant, or £91-2s (ninety-one pounds two shillings) its value. Also £588 (five hundred and eighty-eight pounds) being loss of earn­ings due to the unlawful detention of the said Kit-car by the de­fendant for the period 23rd February, 1948, to 23rd February, 1949, at £49 (forty-nine pounds) per month.”

Pleadings having been ordered, the appellant filed a statement of claim which to put it mildly, was irregular in many respects, and in which he omitted to aver that the Kit-car was in the possession of the respondent or that the respondent had refused to deliver it to him on demand.

The appellant, however, gave evidence to the effect that he was the owner of the kit-car having purchased it from a doctor for £91-2s; that he had taken it to a place called Sapele where the respondent resided and had there arranged with him for the vehicle to be kept on the respondent’s premises and for the driver of the vehicle to hand over to the respondent for safe­keeping the earnings of the car; that when the appellant went to collect the car the respondent would not let him take it away unless “he (the defendant) saw the driver” and that subsequently the respondent ignored a solicitor’s letter to deliver the car to the appellant.


On that evidence which he clearly accepted, the learned Judge would have entered judgment for the appellant, but for the view which he held that the statement of claim disclosed no cause of action by reason of the omission to aver that the respondent had taken or was in possession of the kit-car and had refused to deliver it to the appellant on demand. He considered whether he should amend the statement of claim, but decided against such a course on the ground that an amendment would serve no useful purpose in as much as “it would still not improve the plaintiff’s case because the amended state­ment of claim would only show that the defendant refused to deliver the car unless the plaintiff produced the driver who had left the car in the defen­dant’s house; that is a conditional refusal which is not sufficient to constitute detinue.” He accordingly dismissed the suit as already stated.


The first question for decision is whether the learned Judge was right in holding that the statement of claim disclosed no cause of action. In my view he was. To succeed in a suit in detinue in the circumstances of this case the plaintiff must establish the wrongful detention of his chattel by the defen­dant. It follows, therefore, that a plaintiff suing in detinue must aver in his statement of claim wrongful detention of his chattel by the defendant. There was no such averment in the appellant’s statement of claim in the present case. It is true that the writ of summons alleges “an unlawful detention” by the respondent, but it is, I think, well settled that a statement of claim when filed, supersedes the writ of summons and must itself disclose a good cause of action. For these reasons I agree with the learned trial judge that the state­ment of claim did not disclose a cause of action.


The next question for decision is whether the learned trial judge was right in refusing to amend the statement of claim. He was of opinion that the respondent’s refusal to deliver the kit-car was conditional and that a condi­tional refusal was insufficient to constitute detinue. As I have said before, what must be established in a suit in detinue is wrongful detention by the de­fendant, that is to say, the defendant must have shown an intention to keep the kit-car in defiance of the plaintiff. This is usually shown by proving a de­mand and a refusal to deliver. When, however, the refusal is conditional it does not necessarily show a withholding of the chattel against the will of the plaintiff, provided that the condition is reasonable, and not merely a device to put off the plaintiff. But where, as in the present case, the respondent knew that the kit-car was the absolute property of the appellant and had himself removed the appellant’s driver and substituted his own driver in his place, his refusal to deliver unless the appellant brought the driver was un­reasonable and without justification and showed in my view a clear intention on his part to withhold it from the appellant. In other words, his refusal was conditional in form but not in substance.


It is obvious that had the learned trial Judge been of that view, he would have amended the statement of claim and entered judgment for the appel­lant in the terms set out in his judgment. That being so, this appears to me to be a proper case in which this Court, in the exercise of the powers conferred upon it, should make the necessary amendment. I would therefore, add a paragraph immediately after paragraph 16 of the statement of claim to read as follows:­


“16 (a) The defendant wrongfully detained and still detains, from the plaintiff the plaintiff’s kit-car.”


The appellant claimed damages from the respondent for the wrongful detention of his kit-car from the 23rd February, 1948, to 23 February, 1949, at the rate of £49 per month. The learned trial Judge, on the evidence before him was of opinion that this claim was grossly exaggerated and considered £3 a week to be a fair net average earning of the vehicle. He gave cogent reasons for arriving at this figure and I am not prepared to say that he was wrong in his assessment of damages. I would therefore, allow this appeal and enter judgment for the appellant against the respondent for the return of the kit-car or £75, its value at the date of the judgment, and also for £156 by way of damages. I would allow the appellant costs both in this Court and in the Court below, which I would assess at £50-Os-Od and £32-6s-Od respectively. I would grant a stay of execution for three days.


JIBOWU, AG. F.C.J.: I concur.


HUBBARD, AG. F.J.: I concur.


Appeal allowed




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