United Bank for Africa Plc V. Emmanuel Olufemi Ogunsanya & Anor (2002)
LawGlobal-Hub Lead Judgment Report
AKINTAN, J.C.A.
T
he appellant is a commercial bank, with branches in many parts of the country, including Ibadan. The respondents were the plaintiffs in this action instituted at Ibadan High Court on 6/4/94 as Suit No. I/495/94, while the bank was the defendant. The first respondent was a businessman, trading under the name and style of Asaniaye Trading Stores, and he maintained a bank account at an Ibadan branch of the appellant bank. The second respondent is the father of the first respondent, and he is the owner of the house at SW4/736 Asaka’s Compound, Oke-Foko, Ibadan.
The 1st respondent, sometime in 1986, approached the appellant bank, for a loan to finance his business operations. The bank obliged him, but the 1st respondent had to give a security for the loan. The 2nd respondent surrendered the title deed of his house, at SW4/736 Asaka’s Compound, Oke-Foko, Ibadan, to his son, the 1st respondent, so that it could be used as security for the loan. The arrangement was acceptable to the bank, who accepted the document. All the necessary documents were duly prepared and executed and the bank granted the required loan.
The dispute that led to the institution of this action, arose after the 1st respondent had repaid the loan granted him by the bank. He thereafter, requested the bank for the release of his father’s title deed, which he deposited with the bank as security. The bank could not release the document, despite repeated demands. The respondents, as plaintiffs, had to institute the action in which they claimed as follows in paragraph 33 of their amended statement of claim:
“(1) Declaration that the defendant has been unlawfully detaining the plaintiffs title documents, in respect of the plaintiffs property, situate, lying and being at SW4/736 Asaka’s Compound, Oke-Foko, Ibadan, which title documents the plaintiffs deposited with the defendant in 1986, to secure a loan of N25,000.00 which loan the plaintiffs liquidated on 26th June, 1992.
(2) The sum of N3,000, 000 being special and general damages in detinue against the defendant for its continued wrongful and illegal detention of the plaintiffs title documents in respect of premises described in (1) above, since 26th June, 1992, when the plaintiff liquidated its indebtedness to the defendant.
(3) MANDATORY ORDER on the defendant to release the said title documents registered as Number 33 at page 33 in volume 674 of the Lands Registry, Ibadan, to the plaintiffs.
In the Alternative
The sum of N5,000,000 (Five Million Naira) only as compensation for the failure of the defendant to produce the said title documents.”
Pleadings were filed and exchanged and the trial took place before Oladeinde, J. The two plaintiffs gave evidence for the plaintiffs at the trial, while the case for the defence was presented by one Mrs. Aderonke Balogun, an official of the bank from its head office in Lagos. It is the plaintiffs’ case that after the 1st plaintiff/respondent had repaid the loan, he took from the bank, he (1st plaintiff) requested for the return of the title deed, he deposited with the bank, which he wanted to use as security for another loan from another financial institution. The defendant/appellant failed to deliver the document to the 1st plaintiff/respondent. In its place, a certified copy of the same document obtained by the bank from the Deeds Registry, was delivered to the 1st respondent. The certified copy was rejected by the 1st respondent. The appellant again offered N2,000 to the 1st respondent, so that he could obtain a certified copy in place of his missing title deed. Again, the 1st respondent also rejected the offer.
The case for the defence, as presented by the only defence witness, Mrs. Aderonke Alake Balogun, a manager at the bank’s headquarters, was that, the 1st plaintiff started banking with the bank in 1985. She confirmed that the 1st plaintiff applied for an overdraft from the bank in 1986, and used the title deed of the 2nd plaintiff’s house as collateral. The facility was granted. She also confirmed that the 1st plaintiff eventually paid off the loan and demanded for a return of the title deed. When the bank could not find the title deed, a certified copy of the same deed was obtained from the Deeds Registry, and sent to the 1st plaintiff as a replacement. That was, however, rejected by him. She also said that the bank offered him N2,000 to enable him procure another certified copy. That offer was also rejected by the 1st plaintiff.
The learned trial Judge delivered his reserved judgment in the case on 30/11/98. He held that the plaintiffs had proved their claim against the defendant bank. The learned Judge also held, inter alia, as follows in the concluding portion of the judgment:
“The 1st plaintiff gave evidence as follows-
‘If I have to produce another title document, I will have to see my father’s vendors and they will take money to agree to sign another title document, about N400,000: if my solicitor has to help me in perfecting the document, I will have to pay N500,000 to him’. I have no alternative than to accept this evidence. I rely on the case of Doobay & Ors. v. Mohabeer (1967) 2 All E.R. 760, because the evidence was not challenged in cross-examination or by any other evidence from the defendant to the contrary. I am satisfied on this authority, that I can accept ipso dixit of the 1st plaintiff as to what it would cost, to procure another title document. I therefore, award the plaintiffs the sum of N900,000 to procure another original title document as special damages as pleaded in paragraph 32(e)(1) and (ii) of their statement of claim. Plaintiffs are also entitled to general damages on the claim for damages in detinue.
On the evidence before me, I can only award a nominal sum of N2,000 and I so award them.”
The plaintiffs were also awarded another N2,000 as costs.
The defendant was dissatisfied with the verdict of the court and has appealed against it to this court. Two grounds of appeal were filed against the judgment. The parties filed their respective brief of argument in this court. Although, the appellant filed only two grounds of appeal against the verdict, the following four issues are however, formulated as arising for determination in the appellant’s brief:
(a) Whether based on the evidence before the court, the plaintiffs have satisfied the burden of proof placed upon them under the law in the award of special damages.
(b) Whether having regards to the evidence before the court, the trial Judge correctly evaluated and assessed the special damages against the defendant in favour of the plaintiffs.
(c) Whether the cost of N2,000.00 each of general damages and costs are not excessive, having regards to the evidence before the court.
(d) Whether the Court of Appeal can interfere in the exercise of discretion on the quantum of damages awarded by the lower court.”
It is now settled that, brief writing has become part of the procedural law of the appellate courts in Nigeria. The form and other modalities that a good brief should take have been laid down in numerous judicial decisions. To that end, it has been clearly stated that the sole purpose of a brief is to present a summary of a party’s case on appeal in an accurate and lucid form. It is expected to be in a form that will present the party’s case in a succinct and clear form and contain a condensed statement of the propositions of law or fact or both, which a party or his counsel wishes to establish at the hearing of the appeal together with the reasons for making the propositions and the authorities relied on to sustain them.
Similarly, it is now also well settled that issues for determination must be limited to and fall within the scope of the grounds of appeal filed since they must arise from them. Proliferation of issues are therefore, not permissible. It follows therefore, that while the number of issues formulated may tally with the number of the grounds of appeal filed or less, it is not permissible that they may be more than the grounds filed. Where there are more issues than the number of grounds of appeal filed, such a situation is regarded as undue proliferation of issues and quite unacceptable. See Oduntan v. General Oil Ltd. (1995) 4 NWLR (Pt.387) 1; Adelaja v. Fanoiki (1990) 2 NWLR (Pt.131) 137; Chinweze v. Masi (1989) 1 NWLR (Pt.97) 254; and Adehi v. Atega (1995) 5 NWLR (Pt.398) 656.
In the instant case, the appellant filed only two grounds of appeal but four issues were formulated in the appellant’s brief. There is therefore, a clear breach of the rule against proliferation of issues. The effect of a breach of the rules relating to brief writing does not necessarily affect the outcome of the appeal. Thus, a bad, faulty or inelegant brief surely attracts adverse comments from the court. But it will not necessarily be regarded as amounting to no brief. The court will not close its eyes to the facts of its existence. The court will still be bound to ensure that substantial justice is done to the parties in the case before it. See Obiora v. Osele (1989) 1 NWLR (Pt.97) 279; Akpan v. State (1992) 6 NWLR (Pt.248) 439; Omojasola v. Plison Fisko (Nig.) Ltd. (1990) 5 NWLR (Pt.151) 434; and Tukur v. Govt., Taraba State (1997) 6 NWLR (Pt.510) 549.
The position is however, quite different in a situation where the issues formulated by the appellant for the resolution of the appeal do not flow from the grounds of appeal filed in the case or where arguments are not on issues formulated but on grounds of appeal. In such situations, the court will treat such case as if no brief was filed and the appeal would be struck out. See Adehi v. Atega, supra. The position in the instant case is that the appellant formulated four issues out of two grounds of appeal. The appellant is therefore guilty of proliferation of issues. While such action is repulsive, it is not enough to treat the case as one without a brief. The matter will still be given due consideration so as to ensure that justice is done to the parties in the case. The appeal will therefore be considered on its merit.
The respondents, on the other hand, formulated the following single issue as arising for determination in the appeal:
“Whether or not having regard to the pleading and evidence adduced, the respondents are entitled to damages awarded by the learned trial Judge”.
As I consider the single issue formulated in the respondents’ brief as quite adequate in resolving the questions raised in the appeal, I intend to adopt it for the purpose of the appeal.
The main plank of the appellant’s case as canvassed in the appellant’s brief is that the plaintiffs failed to lead sufficient evidence in support of their claim. It is argued that the claim for special damages was not strictly proved as required by law. Reference is made to the evidence led in support of the special damages which is as follows:
“If I have to produce another title document, I will have to see my father’s vendors and they will take money to agree to sign another title document about N400,000. If my solicitor has to help me in perfecting the document, I will have to pay N500,000 to him.”
It is submitted that that piece of evidence cannot amount to strict proof of the special damages claimed by the plaintiffs in their pleadings and awarded by the trial Judge. This is said to be because the plaintiffs were not sure of what it would cost them to have another deed of conveyance if any would be available. The evidence is said to be a guess work at best and could therefore, not amount to strict proof required by law. It is further argued that the position would have been different if the plaintiff had told the court that he contacted his father’s solicitor and the figures got were those given in evidence.
It is also argued that the 1st plaintiff ailed to say that the finance house he approached for another loan would not accept the certified copy of the title deed. It is therefore, submitted that claims for N400,000 and N500,000 were not proved as required by law. Failure to call any of the vendor to the 1st plaintiff’s father and the solicitor was sufficient to vitiate the award since the court was not told why they could not be called as witnesses. It is also argued that the fact that the defence did not controvert the evidence given in support of the claim or contradict same cannot assist the plaintiffs since the burden was on them to prove their case.
As the plaintiffs failed to strictly prove the special damages they claim, it is argued that what they are entitled to is mere nominal damages because what the plaintiffs proved was mere detention and not a wilful or intentional detention.
It is submitted in reply in the respondents’ brief that the plaintiffs pleaded and led satisfactory evidence in support of their claim and as such the learned trial Judge was right in the conclusion he reached in the case. Reference is made to paragraph 32 of the plaintiffs’ amended statement of claim where he pleaded, inter alia, the value of the house covered by the deed; that before he could secure another deed he would have to contact the vendors who sold the land to his father and pay them the current market value of the land as well as paying cost of hiring a solicitor to secure the replacement. It is submitted that the learned trial Judge accepted the evidence led in support of the pleaded facts and that it was not open to this court, as an appellate court, to substitute figures of its own in place of the awards made by the trial court. It is further argued that the above submission is strengthened by the fact that the plaintiffs gave evidence of how much it would cost them to replace the document and how the 1st plaintiff suffered losses as a result of the defendant’s failure to return the document. The evidence was not challenged under cross-examination and no evidence was led to controvert the figures claimed. The learned trial Judge is therefore said to have acted properly in accepting the unchallenged evidence and making the awards he made in the judgment. There seem to be no dispute about the facts of this case because the parties seem to be in agreement on them. The title deed of the 2nd respondent’s house which his son, the 1st respondent, pledged as security with the appellant was not returned after the 1st respondent had fully paid the loan and despite repeated demands for its return. The disagreement seems to be whether the plaintiffs proved their claims and whether the awards made by the court are sustainable. The claim before the court was founded on detinue. It is settled law that a claim in detinue is aimed at the recovery of the chattel itself and damages for its detention; or if the chattel cannot be returned, then its value: see Adefunke v. Ikpehai (1958) WRNLR 33
Remedies in detinue must be by way of action in conversion in which the plaintiff seeks specific restitution of his chattel. At common law, it resulted in a judgment for delivery up of the chattel or payment of its value as assessed, and for payment of damages for its detention. This, in effect, gave the defendant an option whether to return the chattel or to pay its value. See General and Finance Facilities Ltd. v. Cooks Cars (Romford) Ltd. (1963) 1WLR 644 at 650; Hymas v. Ogden (1905) 1 KB 246; and Clerk & Lindsell on Torts, 14th ed. Para. 1180 on page 719.
In the instant case, the plaintiffs claimed for mandatory order for the return of the 2nd plaintiff’s title deed in possession of the defendant. There was also an alternative claim for the cost of procuring a replacement for the said deed. The appellant therefore, had an option whether to return the title deed or to pay its value. The lower court has, in the instant case, entered judgment for the plaintiffs for the amount, which the plaintiffs claim that it would cost them to procure a replacement for their title deed in possession of the appellant and damages. There is no doubt that the step taken by the court was quite within the law as declared above. But the grievances of the appellant seem to be in respect of the quantum of the damages awarded and whether the evidence led in support of the claim was adequate.
The main complaint of the appellant was that the awards made in respect of the claims for special damages were not strictly proved as required by law. The position of the law relating to the amount of damages that could be awarded in actions for conversion of title deeds at common law is that the court may give as the measure of damages the full value of the estate, but to be reduced to a nominal sum on the redelivery of the deeds. If subsequently, the plaintiff should refuse to accept the deeds and insist on the full damages awarded, the court will presumably exercise its discretion to make him accept the document: see Coombe v. Sansom (1822) 1 Dow & Ry. 201; Loosenmore v. Radford (1842) 9 M. & W. 657 at 659 per Alderson B.; and McGregor On Damages, 13th ed., para. 1009, page 681.
In the instant case, the respondents as plaintiffs, pleaded the value of the house covered by the title deed now in issue. They also pleaded how much it would cost them to replace the title deed, which the appellant failed to return to them. The learned trial Judge entered judgment for the plaintiffs for the amount it would cost them to procure another title deed and nominal damages.
Special damages are damages which are of the type which the law will not infer from the nature of the act. They are not the type that normally follow in the ordinary course of the events. The law therefore, requires that they must be claimed specially and proved strictly: see Ekennia v. Nkpakara (1997) 5 NWLR (Pt.504) 152; Eseigbe v. Agholor (1993) 9 NWLR (Pt.316) 128; Onuigbo v. Nwekeson (1993) 3 NWLR (Pt.283) 533; Oshinjinrin v. Elias (1970) 1 All NLR 153; and Orient Bank (Nig.) Plc v. Bilante Int. Ltd. (1997) 8 NWLR (Pt.515) 37.
As already stated above, special damages must be specifically claimed and proved strictly. What amounts to ‘strict proof’ would depend on the facts of each case and the character of the acts which produce the damage as well as the circumstances under which the acts were done. But generally, the strict proof required in special damages means no more than that the evidence led must clearly show the same particularity as is necessary to support the pleadings. The evidence led must clearly consist of the particular loss. The term therefore does not mean an unusual proof, but simply implies that the plaintiff who had the advantage of being able to base his claim upon a specified calculation must give the court the precise facts which make such calculation possible. See WASA v. Kalla (1978) 3 SC 21; Odulaja v. Haddad (1973)11 SC 357; Imana v. Robinson (1979) 3-4 SC 1; Calabar East Co-operative Thrift and Credit Society Ltd. v. Ikot (1993) 8 NWLR (Pt.311) 324; Akintunde v. Ojeikere (1971) NMLR 91; and Orient Bank (Nig.) Plc v. Bilante International Ltd. (1997) 8 NWLR (Pt.515) 37. In the instant case, the plaintiffs pleaded the amounts that replacing the title deed would cost them. They also led evidence in support of their said pleadings.
The evidence led was neither challenged under cross-examination nor was it controverted by any contrary evidence. The learned trial Judge accepted the evidence and entered judgment for the plaintiffs accordingly. As already shown above, the option is still open to the appellant to return the respondents’ title deed in its possession thereby avoiding the payment of the amount awarded as special damages.
The conditions which must exist before an appellate court could tamper with an award made by a lower court, as in this case, are well laid down in judicial decisions. It must, to that end, be clearly shown that the trial Judge in assessing the damages, proceeded upon a wrong principle or on no principle of law as a result of which he made an award which is manifestly unwarranted, excessive, extravagant and unreasonable in comparison with the loss suffered by the plaintiff in the case. See Okoroji v. Ezuman (1961) All NLR 183; (1961) 1 SCNLR 187; Idahosa v. Oronsaye (1959) SCNLR 407; P.Z. & Co. Ltd. v. Ogedengbe (1972) 1 All NLR (Pt.1) 202; Okongwu v. NNPC (1989) 4 NWLR (PPt.115) 296; and Union Bank (Nig.) Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt.421) 558.
The appellant has failed to show that there was a breach of any of the aforementioned pre-conditions that must exist before this court could tamper with any of the awards made by the lower court.
In conclusion therefore, I hold that there is totally no merit in the appeal. I accordingly, dismiss it with N10,000 costs in favour of the respondents.
Other Citations: (2002)LCN/1218(CA)