Boniface Anyika & Company Lagos Nigeria Ltd. V. Katsina U. D. Uzor (2006)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C.

The plaintiff is the appellant in this appeal. The defendant is the respondent. They had a business relationship. It was the clearing of goods. The respondent is a clearing agent. The appellant is the owner of the goods.

The case of the appellant is that it imported 400 surgical orthopaedic chairs into the country and employed the respondent to clear the goods. It paid the sum of N12, 500.00 inclusive of N300.00 transportation fee to the respondent. The respondent did not deliver the goods as agreed. Upon demand for the goods, the respondent concocted a story that the goods were seized by customs officials.

The case of the respondent is different. As a clearing agent, he was contracted by the appellant to clear its container purportedly containing 400 surgical chairs. Upon examination by the Board of Customs and Excise, the goods were found to be ordinary chairs, which are prohibited. Customs officials seized the goods and auctioned them to Messrs Nnawo Enterprises in 1988. The appellant, though aware of the sale of the goods by customs officials, filed an action. That is the case of the respondent.

The appellant sued the respondent and others. It sued for “damages and conversion in the sum of N5,641,600.00, being exchange rate for US $68,000.00 paid for, or a return of 400 units of orthopaedic surgical chairs converted by the defendants as well as the sum of N12,500,00 paid for clearing goods”.

At the trial, some of the respondents originally sued by the appellant had their names struck out of the suit. The learned trial Judge gave judgment to the appellant. He found the defendant liable in conversion. The appeal of the respondent to the Court of Appeal was upheld. Judgment against the respondent was set aside and the claim dismissed. It is against that decision that the appeal has come to this court.

Briefs were filed and exchanged. The appellant formulated the following single issue for determination:

“Whether a case of conversion was made against defendants by the plaintiff.”

The respondent formulated the following four issues for determination:

1. Whether the appeal is competent in view of the fact that the grounds of appeal are grounds of mixed law and fact and no leave was sought by the plaintiff/appellant.
2. Whether the appellant pleaded and established facts upon which the defendants/respondent can be found liable for the tort of conversion.
3. Whether exhibit P4, the document tendered by plaintiff/appellant’s witness showing that the goods were contraband and was (sic) sold to Nnawo Enterprises, supports the contention of the appellant that the goods were not contraband. In view of the fact that the document emanated from the Department of Customs and Excise the body charged with the duty of inspecting goods imported into Nigeria.
4. Whether there was any evidence or inference of collusion between the defendant/respondent and Board of Customs and Excise in relation to plaintiff/appellant’s forfeited cargo with regard to exhibits P4 – P4J.”

Learned counsel for the appellant, F.R.A. Williams (Jnr.) submitted that a case of conversion was made against the respondent. He cited Ihenacho v. Uzochukwu (1997) 2 NWLR (Pt. 487) 257 at 268. Relying on paragraphs 9, 10 and 11 of the further amended statement of claim, learned counsel submitted that when the paragraphs are viewed together with the document copied at pages 98 and 99 of the record, it will be clearly seen that all the material facts necessary to establish the conversion have been established. He argued that the document can only come into existence if the imported goods are released to the Clearing Agent and that if the goods were contraband, a seizure note would have been issued instead.

Relying on the evidence of PW2, and other evidence before the Court, learned counsel submitted that the evidence before the court confirms that on 7th January, 1988, the imported goods were released to the respondent. He contended that the Court of Appeal arrived at a wrong decision, particularly when that court took exhibit P4 at face value. He urged the court to allow the appeal.

Learned counsel for respondent, Mr. A. M. Makinde, submitted on issue No.1 that as the three grounds of appeal are grounds of mixed law and fact, the appellant ought to have sought the requisite leave. Failure on the part of the appellant to seek leave, counsel contended, renders the appeal incompetent. He cited section 233(3) of the 1999 Constitution and the following cases: A.C.B. v. Obmiaimi Brick and Stone Sons Ltd. (1993) 5 NWLR (Pt. 294) 399 and Adeyemi v. Y. R. S. Ike Oluwa and Sons Ltd. (1993) 8 NWLR (Pt. 309) 27.

Learned counsel contended on issue No.2 that the object of pleadings is to state accurately the issue for trial. He cited Oduka v. Kasumu (1968) NMLR 28. While still on the pleadings of the appellant, counsel submitted that the pleaded facts in the further amended statement of claim did not make the respondent liable for the tort of conversion as he never at any point have either custody or control of the appellant’s imported goods nor committed any act that is inconsistent with appellant’s title to the goods. He cited Fauldes v. Willougby (1841) M and W50; Ojini v. Ogo Oluwa Motors (Nig.) Ltd. (1998) 1 SCNJ 20; (1998) 1 NWLR (Pt. 534) 353. He also submitted that the Bill of Entry, Traffic Managers Special Cargo Pass, Tally Way Bill No. 55617 obliterates respondent’s liability for conversion.

On issue No. 3, learned counsel submitted that exhibit P4 which emanated from the office of Deputy Director of the Department of Customs and Excise in charge of enforcement is a confirmation of the fact that the goods imported by the appellant were contraband.