Nigerian Bottling Company Plc V. David Okafor (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J. C. A. (Delivering the leading judgment)

At the High Court of Rivers State (Coram: Mary U. Odili J, as she then was) the Respondent, as the Plaintiff, sued the Appellant claiming –

a. The sum of N1, 176, 000.00 being and representing special damages for loss of use of his vehicle RV 4879 PA scania trailer from the 13th day of January, 1995 to the 30th day of June, 1995 and thereafter N7,000.00 per day until judgment is delivered.

b. General damages in the sum of Two Million and order compelling the defendant to return the said vehicle in good working condition.

The action was essentially in detinue.

Parties exchanged pleadings. The cause of action is that the Appellant, the Defendant, employed the services of S.J. Nsa, trading under the name and style of Nsa Brothers Trading company “to engage in the haulage of their products from Trans-Amadi Depot to different locations Rivers State.”The said S.J Nsa had no truk of his own. He allegedly engaged “the Plaintiff to perform the said haulage services using his trailers including no RV4879 PA owned by the plaintiff” between June, 1994 and 12th January, 1995. The plaintiff averred that in January, 1995 he employed one Lazarus Uzoh as a driver to operate the said truck no RV 4879 PA. On 9th January 1995 the truck was loaded with 1000 crates of the Defendant/Appellant’s products for delivery at Ahoada Depot. The said Lazarus Uzoh allegedly stole the 1000 crates of the Defendant’s products and absconded. He abandoned the truck on the highway. The police arrested the Plaintiff in course of their investigation. It is further averred in the statement of claim that –

10. While the Plaintiff was being detained at the police cell the Defendant moved the Plaintiff’s trailer RV 4879 PA to its premises at Trans-Amadi Industrial Estate and the same has been detained thereat.
11. After the Plaintiff was released from the police cell he confronted the Defendant and demanded the release of his vehicle out-the Defendant refused. Soon after his release the Plaintiff affected the arrest of Mr. Lazarus Uzoh in Lagos which arrest was the Plaintiff’s expense.
12. Soon after the arrest of Mr. Lazarus Uzoh the Plaintiff renewed his appeal to the Defendant to release his vehicle in order to mitigate his losses resulting from lack of use but the Defendant again refused to release the said vehicle.
13. Having testified (in the criminal charge against Lazarus Uzoh) on or about the 27th April, 1995 the Plaintiff consulted his counsel who on the 11th day of May’ 1995 wrote to the Defendant demanding who received the letter on or about the 15th day of may, 1995 failed refused or neglected to make a reply or comply with the demand contained therein. The said letter including the evidence of postage is herein pleaded and will be relied upon at the hearing.
14. Ever since the 13th day of January,1995 when the Defendant seized the plaintiffs said vehicle the plaintiff has not been able to generate any income therefore. That the said vehicle is still parked in the premises of the Defendant at Trans-Amadi Industrial Layout

The Defendant denied these allegations in the statement of defence, and emphasized that they did not seize the said vehicle and that they never ever refused to release the said vehicle to the Plaintiff. In another breadth the defence averred that:

even if the court finds as a fact (which is not conceded) that the Defendant siezed the plaintiff’s vehicle on the 13th day of January, 1995, the Defendant avers that the vehicle was seized in exercise of the right of lien on the said vehicle which the Defendant is entitled to.

This plea of lien is in consequence of the loss of Defendant’s 1000 crates of products valued at N340,000.00. To emphasize the point that they neither seized nor refused to release the Plaintiff’s truck on demand the Defendant averred in paragraph 11 of the statement of defence that the –

Plaintiff is free to remove (his) trailer which is a nuisance in the Defendant premises from the said demanding premises.

At the trial, the Plaintiff called three witnesses, including himself in proof of his allegations. Two witnesses testified for the defence. A total of five (5) documents were produced in addition and admitted as exhibits. At the close of evidence the parties, through their respective counsel, exchanged written addresses. On 3rd December, 1997 the trial court entered judgment for the Plaintiff and ordered the Defendant, now Appellant,

i. to pay N2,000,000.00 as general damages to the plaintiff, and

ii. to put plaintiffs vehicle in a roadworthy condition within 3 months and have the same returned to the plaintiff.

The trial court dismissed Plaintiffs claim of special damages. It also dismissed Defendant’s Third Party claims. It is this judgment that has prompted this appeal. By leave granted on 14th February, 2006 the Appellant amended his original notice of appeal. He now has 6 grounds of appeal. out of these six grounds of appeal the Appellant has formulated three (3) issues for determination as follows –