Geonnasons Pharmaceuticals (Africa) LTD. V. Francis Edheku (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AKAAHS, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Plateau State delivered by Damulak, J. on 3/12/99 in suit No. PLD/J589/95. In paragraph 17 of the statement of claim, the plaintiff claimed both special and general damages against the defendant as follows:-

“(i) the sum of N436,050.00 (Four hundred and thirty-six thousand and fifty Naira) being special damages for loss of earnings from his Mazda Bus Registration No. BA 596T from 9/2/94 to 9/9/95.

(ii) the sum of N850.00 (Eight hundred and fifty Naira) per day being loss of earnings on the bus from the date of filing of this action i.e. 11/9/95 till the vehicle is delivered up to the plaintiff.

(iii) the sum of N250,000.00 (Two hundred and fifty thousand Naira) being general damages for the unlawful detention of plaintiff’s degree certificate, his cel1ificate of provisional registration and his Mazda Bus Registration No. BA 596T.

(iv) the costs of this action.”

The plaintiff testified in person and called three other witnesses but the defendant did not lead any evidence in defence. Counsel for the parties addressed the court and in a reserved judgment the learned trial Judge found in favour of the plaintiff and awarded him damages in the sum of N500,000.00 against the defendant.

The defendant is dissatisfied with the said judgment and appealed against it in the notice of appeal dated 25/12/99 containing six grounds of appeal (see pages 201-203 of the records of appeal). The defendant will hereinafter be referred to as the appellant while the plaintiff will be called the respondent.

The appellant filed a brief of argument from which the appellant’s counsel formulated the following three issues for determination:-

1. Was the claim of the respondent being one in detinue, properly constituted in law? (Ground 6).
2. Was the trial court right in law when it failed to resolve the issue of “demand and refusal to deliver” in its judgment, when the action was founded in tort of detinue? (Ground 2).
3. Was the trial court right in entering judgment in favour of the respondent in the entire circumstance of this case?

(Grounds 1, 3, 4 and 5).

The respondent’s counsel adopted the issue formulated by the appellant’s counsel.

When the appeal was called, only the appellant’s counsel, Mr. H. N. Ugwuala was present in court. The Registrar informed the court that Ayo Adeniyi, Esq., of counsel appeared for the respondent on 27/9/2005 when the appeal was adjourned to 15/2/2006 for hearing. Since the parties had filed and exchanged briefs of argument the appeal was deemed as having been argued on the briefs in accordance with Order 6 rule 9(5) Court of Appeal Rules, 2002. Learned counsel for the appellant’s contention is that the entire suit of the respondent was not properly constituted in that there was no head of claim for the return of the detained chattels (or their value) but only claims in damages for the loss of use of the chattels.

He argued that in a claim founded in the tort of detinue, damages can only be claimed or awarded in addition to, and not in isolation of, the primary claim for the specific return of the chattel detained, or its value. He then listed the three remedies which a plaintiff suing for detinue has in law. As damages flow from the primary claim of the return of the chattel or its value as assessed, it follows that an order for payment of damages can only be made as an ancillary order to a specific order for return of the chattel or payment for its value.

It was argued on behalf of the appellant that the claim of the respondent is unknown to law since it was not for any of the remedies enunciated by the Supreme Court in Oshevire Ltd. v. Tripoli Motors (1997) 5 NWLR (Pt.503)1, (1997) 4 SCNJ 246 at 260. Learned counsel also referred to Bullen and Leake and Jacob’s Precedents of Pleadings, 12th Edition to state that where there is no demand and or refusal, no action in detinue lies. He then made reference to the address of counsel both in the main address and reply where the respondent admitted that he did not lead evidence in proof of demand and refusal and submitted that the trial court ought to have dismissed the claim of the respondent since there could not have been a refusal to deliver.