Inspector James Abah & Ors. V. Jabusco (Nigeria) Ltd. (2007)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.C.A.

This is an appeal from the decision of Benue State High Court of Justice (now the lower court) contained in the judgment of Hon. Justice E. O. Ogbole in suit No. MHC/36/95 delivered on the 23rd day of August, 1999.

By an amended statement of claim, filed by the leave of the lower court, the plaintiff (now the respondent) claimed against the 1st to 6th defendants (now appellants) in paragraph 19 in the terms hereinafter appearing:-

“19. Wherefore the plaintiff claims from the defendants jointly and severally (the 6th defendant being vicariously liable for the acts of the 1st – 5th defendants) the sum of N1,000,000.00(One million Naira) only made up as follows:-

1. A Special Damages

Cost price of the missing goods

as at December, 1994) N317,200.00

2. General Damages

(Inconvenience, assault, detention etc) N682.800.00

TOTAL N1.000.000.00”

The events leading to this appeal started on the 6th day of December, 1994, when a team of three Police Detectives, namely, Inspector Habu, Sergeant Iliya Zaki and Corporal Usman Danladi from ‘A’ Division. Jos, registered themselves at ‘A’ Division, Makurdi, for the purpose of conducting an investigation in Makurdi.

After registering themselves, they went to town and on their return they brought with them various items of electronic appliances and one Innocent Obiechena, a salesman of the respondent company.

The goods were items of sale in the respondent’s store which were called away by the purported detectives from Jos. It was alleged that Kenneth Nwoye, another salesman of the respondent was also taken away to ‘A’ Division, Makurdi where the goods were off-loaded and kept in the custody of the 1st to 5th appellants. The two salesmen, who later testified before the lower court as PW1 and PW2 respectively were also detained behind the counter. They were, however, later released with instruction to report the following morning. In the evening of the same day, the detectives came back and removed the goods from ‘A’ Division. Makurdi with the words that the matter or case was being transferred to S.I.I.B. Makurdi.

When the duo of PW1 and PW2 reported at ‘A’ Division on the 7th day of December, 1994. as directed, they were told that their case had been transferred to S.I.I.B. and the goods had already been taken to S.I.I.B. Enquiries at S.I.I.B. revealed that no such case was so transferred and no electronic goods were brought to S.I.I.B. The case was reported to the Benue State Commissioner of Police (6th appellant), who instituted an orderly room trial against the 1st to 5th appellants. In an effort to recover the goods, the respondent through the PW5 sponsored trips to Jos and another place but the goods were lost and there was no trace of them.

It was when all efforts to recover the goods failed that the respondent took out a writ of summons against the appellants herein, upon which amended statement of claim and amended statement of defence were filed. Respondent called five witnesses while four witnesses testified for the appellants. At the end of addressees by counsel on both sides, the learned trial Judge, in a considered judgment delivered on the 23rd day of August, 1999, found for the respondent and awarded total damages of N667.200.00. made up of N317.200.00 for special damages and N350.000.00 as general damages, against the appellants jointly and severally (the 6th appellant being vicariously liable).

The present appeal is against that judgment. The appellants originally filed five grounds of appeal and by the leave of this court, they filed an amended notice and grounds of appeal with eight grounds incorporating the five original grounds of appeal. The appellants have distilled five issues for determination of this court in their brief of argument, namely –