Chief Paul Ordia V. Piedmont (Nigeria) Ltd. (1995)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, J.S.C. 

The appellant bought two galvanised steel barges from the liquidator of a company that constructed the bridge on Ethiope River. That was in 1978, and the two barges were moored near the new bridge. By the time the plaintiff sought to take delivery of the barges he discovered they had been taken away by the defendant to Ologbo where the defendant put them to use. The plaintiff then instituted an action to recover the barges at Sapele in the High Court of the former Mid-Western State but his action was dismissed. He then appealed to the Supreme Court where by consent judgment it was ordered as follows:

“(a) The plaintiff/appellant shall pay to the defendant/respondent the sum of N900.00 being the present price agreed to by the parties in respect of both barges constituting the subject matter of appeal.

(b) After payment of the said amount of N900.00 by the plaintiff/ appellant to the 2nd defendant/respondent, the 2nd defendant/respondent shall permit the plaintiff/appellant to take possession of the said barges and remove same for his own use and benefit.

(c) The plaintiff/appellant shall pay to the 2nd defendant/respondent the cost of this appeal assessed at N500.00.”

The plaintiff/appellant promptly complied with the above judgment by paying the sum of N1,040.00 into the defendant/respondent’s account (i.e. N900.00 and cost of N500.00) which the respondent refused to accept by sending a cheque for the same sum back to him on 9th April, 1976. The appellant then paid this same sum into the Registry of the High Court in respondent’s favour but despite notice to this payment, the respondent still refused to collect the sum. The appellant then demanded the return of the barges as ordered by the Supreme Court but this demand was not heeded. This led to the suit that found its way from the High Court through the Court of Appeal to this court.

The High Court entered judgment in favour of the plaintiff on the issue of liability for not handing over the barges to the appellant, finding in conversion rather than in detinue. He awarded N2,000.00 as damages for loss of use for four days detention. Against the award of damages the plaintiff/appellant appealed to the Court of Appeal which dismissed the appeal; he has thus with leave appealed to this court. One of the reasons why the Court of Appeal dismissed the appeal was that the evidence of the cost of each barge or its replacement was not before the court and that Exhibit P1, a quotation for a new barge from the boat builders was not properly before the court. The appellant therefore in support of his grounds of appeal formulated the following issues for determination:

“1. Were the learned Justices of the Court of Appeal right to affirm the judgment of the learned trial Judge assessing and awarding damages on the basis of plaintiff’s case being founded on conversion which their Lordships held to be wrong

2. Were the learned Justices of the Court of Appeal right in their view that the plaintiff did not prove strictly the value of the barges to which the plaintiff is entitled
3. Having found that plaintiff’s Claim is based on detinue, were the learned Justices of the Court of Appeal right to say that the plaintiff did not appeal against the failure to order return of the barges when there was no such failure”

Court of Appeal adverted to the issues between the parties when it held:

“Where, however, the learned Judge appear to have gone wrong, in my respectful view, was when he decided that appellant’s action was more in the nature of conversion rather than detinue. It is crystal clear from appellant’s claim that he based his action on detinue and not on conversion.” By Supreme Court judgment in suit SC/384/74 “Exhibit B2″ the appellant was entitled to the ownership and possession in respect of the two barges and pay N900 to the respondent. Notwithstanding the plaintiff paying this amount to the defendant, the latter impudently refused handing over ownership …” See Page 156 Line 39 to Pages 147 Lines 1-10.”

There was a marked distinction between the first action which went to Supreme Court from High Court when there was no intermediate appellate court and the present action now in issue. The previous action was based on conversion but once the Supreme Court entered the consent judgment alluded to earlier the present action has taken a new turn. Detinue is based on history of development of Common Law. It is based on the defendant’s wrongful detention of plaintiff’s chattel, with the evidence of defendant’s refusal to deliver up the chattel on demand by the plaintiff. The redress is not strictly for the wrong but for the return of the chattel or its value; and since the second half of last century the loss of use of the chattel [See common Law Procedure Act 1852 for the transformation that took place in the issue of detinue]. Detinue is now an action only in tort for failure to deliver up the plaintiff’s chattel and it entails claim for the return of the chattel or its value and damages for its detention.

Since the Supreme Court entered the consent judgment the plaintiff has been entitled to the return of the barges. He made the demand for their return which was ignored by the defendant. His action, rightly, is in detinue. Nowadays it is even possible to ask for specific return of the chattel if it is still in possession of the defendant rather than its value, and damages for its detention [See for example the analysis in General and Finance Facilities Ltd VS. Cooks Cars (Romford) Ltd. (1963) 1 WLR 644, 650.] But more appropriately it is up to the plaintiff to decide which course to follow among the following:

1. value of chattel and damages for its detention. The value of the chattel is as proved at the time of judgment in trial court and the onus is on the plaintiff to prove the value. He is also to show by evidence the damage suffered by the detention.
2. the return of the chattel and damages. In this case the judgment on proof of the detention is for the return of the chattel and damages for its retention.
3. for the return of the chattel or its value as assessed, and damages for its detention. This seems to be the best form of action for if the chattel has otherwise been removed from jurisdiction or hidden away and out of sight of the sheriff there is no alternative other than a distraint for the value of the chattel as assessed plus of course damages for its detention.

The Court of Appeal having resolved the issue as that based on detinue curiously erred by dismissing the appeal of the plaintiff. Conversion as distinct from detinue attracts damages in the form of value of chattel up to the time of conversion; in detinue it is as at the date of judgment. Trial court refused to award damages for detention of the chattels for more than four days believing and so holding that the action was based on conversion. Court of Appeal rightly in my view held the action was in detinue but it failed to proceed on the appropriate assessment of damages. The Court of Appeal erred in this regard.

The next question is whether the Court of Appeal was right in holding that the plaintiff did not prove strictly the value of the barges. Court of Appeal relied on the English case of Hali v. Barclay (1937) 3 All ER 620, 623 that when goods in issue are not readily available in the market the claimant is entitled to the cost of replacement of the good. The only evidence of the plaintiff on the value of the barges (which certainly are not readily available in the market) is that of Julius