Krest Investment Limited V. West African Portland Cement (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment)

This appeal is against the Judgment of the High Court of Lagos State, Lagos Division delivered on the 23rd day of November, 2010 by K. A. Jose (Mrs.) J. in suit No: ID/1027/2008.

By way of short summary of facts giving rise to this appeal, the Claimant/Appellant/Cross Respondent in this appeal was commissioned by the Defendant, Respondent/Cross Appellant in this appeal by Local purchase order dated 28th August 2006, to remove from its site 200,000 bulk cubic meter of what the claimant described as “over burden” at N210 per bcm. The Claimant immediately mobilized to Defendants Shagamu site and hired earth moving machines, two scrappers and a bulldozer towards executing the contract.

In the process of executing the contract, the Claimant informed the Respondent that it had already evacuated 80,000 bcm of over burden, the Defendant disputed this figure and said the Claimant had only evacuated 10, 670 bcm, the disagreement in the figures evacuated led to series issues including locking up of Claimants hired equipment, in an effort to resolve the dispute series of

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discussion took place between the parties but yielded no positive results, the contract was finally terminated by the Defendant/Respondent. The termination of the contract eventually culminated into filing an action by the Claimant at the lower Court via a Writ of Summons and Statement of Claim dated 4th day of November 2008, in the writ the Claimant asked for the following:

a) The sum of N25,610,000 (Twenty-Five million, Six hundred and Ten thousand Naira) being demurrage and or rent incurred by the Claimant as a result of wrongful detention of the Claimants 2 hired scrappers and a bull dozer at the cost of N200,000 and N90,000 per day respective for 88 days in the case of the two scrappers and 89 days in the case of the bulldozer.

b) The sum of N10,000,000 (Ten million Naira) as general damages for the loss suffered by the claimant as a result of the defendant’s breach of the contract which was unilaterally terminated without notice and any just cause.

The cost of this action.

Parties filed and exchanged their respective pleadings and at the conclusion of the trial, the lower Court held that a case of detinue was not established by the

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Appellant/Cross Respondent as Claimant against the Respondent/Cross Appellant as Defendant, and that although the Appellant/Cross Respondent’s contract was wrongfully terminated as found by the lower Court, there was no basis upon which the lower Court could assess and award damages as claimed, in other words the Court held the view that there were no sufficient materials put forward by the Claimant to justify award of damages. The Claimant became aggrieved by this decision and therefore filed a Notice of appeal on the 22nd day of February, 2011 containing three grounds of appeal, the Notice of appeal is at pages 174-178 of the Record of Appeal. The grounds of appeal are reproduced without their respective particulars as follows:

I. The learned trial Judge erred in law and on the facts to have held that the Claimants representatives did not make a demand for the return of their equipment in the Custody of the defendant and that therefore the defendant was not liable in detinue for the wrongful detention of the equipment.

II. The learned trial Judge erred in law to have held that the Claimants did not prove detinue against the Defendant in any event