WEMA BANK PLC v. ARISON TRADING &ENGINEERING COMPANY LTD & ANOR

CITATION: (2015) LPELR-40030(CA)

In the Court of AppealIn the Ibadan Judicial Division

Holden at Ibadan

ON FRIDAY, 9TH OCTOBER, 2015Suit No: CA/I/363/2013

Before Their Lordships:

HARUNA SIMON TSAMMANI Justice, Court of AppealMUDASHIRU NASIRU ONIYANGI Justice, Court of AppealNONYEREM OKORONKWO Justice, Court of Appeal

BetweenWEMA BANK PLC - Appellant(s)

And1. ARISON TRADING & ENGINEERING CO. LTD.2. CHIEF AIKULOLA - Respondent(s)

RATIO DECIDENDI

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1 ACTION - DECLARATORY RELIEF(S): Duty of a party seeking a declaratory relief"To succeed, the plaintiff must rely on the strength of his own case, as declaratoryorders are not granted even on the admission of the Defendant; though where aweakness in the Defendant's case supports the case of the Plaintiff, such a plaintiffmay rely on it to strengthen his own case. Ultimately, the burden is on the plaintiff allthrough to prove by credible evidence that he is entitled to the declaration sought-Thus, in the case of Dumez Nigeria Ltd v. Nwakhoba (2008) 18 NWLR (Pt.1119) p.361,Mahmud Mohammed, JSC (as he then was) held that:"The law on the requirements ofthe plaintiff to plead and prove his claims for declaratory reliefs on the evidencecalled by him without relying on the evidence called by the Defendant is indeed wellsettled. The burden of proof on the plaintiff in establishing Declaratory Reliefs to thesatisfaction of the Court is quite heavy in the sense that such Declaratory Reliefs arenot granted even on admission by the Defendant where the Plaintiff fails to establishhis entitlement to the declaration by his own evidence."Basically therefore, in claimsrelating to declaratory reliefs, the burden is on the plaintiff to establish his claim onthe strength of his claim and should not rely on the weakness of the defence. See,Nwokidu v. Okanu (2010) 3 NWLR (pt.1181) p.362; Alechendu v. Oshoke (2002) 9NWLR (Pt.773) p.521 at 535; Dantata v. Mohammed (2000) 7 NWLR (Pt.664) p.176and Senator Julius Aliucha & Anor v. Martin Nwanscho Elechi & Ors (2012) LPELR -7823 (SC)." Per TSAMMANI, J.C.A. (Pp. 17-18, Paras. B-C) - read in context

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2 TORT - DETINUE: Nature of the tort of detinue; What must be established for aplaintiff to succeed in a claim for detinue"In the case of Zenon Pet & Gas v. Idrisiyya Ltd (2006) 8 NWLR (Pt.982) p.221 at 245paragraphs E - G, M. D.18 Muhammad, JCA (as he then was) describes an action indetinue in the following words:"An action in detinue is brought for recovery of thespecific personal chattel, ...wrongly detained from the person entitled to thepossession of them, and /or for damages occasioned by the wrongful detainer, theAppellant herein. Accordingly, detinue is based on the Defendant's wrongful detentionof plaintiff's chattel coupled with the Defendant's refusal to deliver up and restorepossession of the chattel following the Plaintiff's demand. The redress the Plaintiff isentitled to is strictly not for the wrong but for the return of the chattel he had beendispossessed, or the value of the chattel if same had been destroyed as well as theloss of use of the chattel."My Lord, Ogunbiyi, JCA (as he then was) at page 249 of thecase cited above, also describes the tort of detinue as consisting in the wrongfulwithholding of the Plaintiff's goods. That it does not matter whether the person or thewrong doer, i.e. the detainee of the goods obtained possession of the detained goodslawfully or illegally or by seizure, and that what is relevant is the wrongful retention ordetention of the chattel after demand. My Lord therefore concluded that:"It istherefore material that, to sustain an action in detinue, there must be demand by theplaintiff and on receipt of this notice the persistence in keeping the chattel by theDefendant would give rise to an action in detinue."A claim in detinue is therefore onethat is predicated on a possessory right or action that seeks recovery of personalchattels illegally or unjustly retained or detained. The claim in detinue thereforegerminates from the act of delivery of goods by the owner to another to keep, andwho afterwards fails or refuses to deliver back the chattel or goods to the true owner.In an action or claim for detinue therefore, it is necessary that the Defendant shouldhave come into possession lawfully either by finding it or the delivery of same. It is anaction which lies for the recovery of property from one who has acquired possessionof it lawfully but retains same wrongfully, illegally or without a right to continue insuch possession, upon demand by the person entitled to possession. The Defendantshould therefore not have any reasonable justification for keeping or detaining thechattel. See F.B.N. Plc v. Sangonuga (2007) 3 NWLR (Pt.1021) p.230; NACENN (Nig)Ltd v. B.A.P. Ltd (2011) 11 NWLR (Pt.1257) p.193 and Anuruba v. E.C.B. Ltd (2005) 10NWLR (Pt.933) p.321. To succeed in a claim in detinue therefore, the plaintiff mustadduce credible evidence to establish the following facts:(i) That he is the owner ofthe property chattel in question(ii) That he has an immediate right to possession ofthe property or chattel;(iii) That the Defendant is in actual possession of the propertyor chattel;(iv) That he has made proper demand on the Defendant to deriver uppossession of the property or chattel to him; and(v) That the Defendant, has, withoutlawful excuse, refused or failed to deliver up the property or chattel to him.It would beseen therefore that the gravamen or centre-pin in an action in detinue is the wrongfulretention of the chattel."Per TSAMMANI, J.C.A. (Pp. 18-21, Paras. F-E) - read in context

3 APPEAL - UNAPPEALED FINDING(S): Effect of unappealed findings"It is the law that any finding of fact by a trial Court on a vital point in issue, for whichthere is no appeal, is deemed established. Such fact remains valid, subsisting andbinding on the parties. See Ebenigbe v. Achi (2011) 2 NWLR (Pt.1230) p.65;L.H.A.B.U.M.B. v. NYIB (2011) 12 NWLR (Pt.1260) p.1 and S.P.D.C.N. Ltd v. Ejebie(2011) 17 NWLR (Pt.1276) p.324."Per TSAMMANI, J.C.A. (P. 27, Paras. B-C) - read incontext

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4 TORT - DETINUE: Remedies open to a plaintiff who has a right of action in detinue"...However, when a person's chattel has been unlawfully detained by another person,the person who is denied possession or use of that chattel, has several remediesavailable to him; and such remedies include;(a) specific return of the chattel anddamages for its detention; or (b) The value of the chattel as assessed and alsodamages for its detention; or (c) Return of the chattel or recovery of its value asassessed and also damages for its detention.It therefore means that in an action fordetinue, a successful plaintiff will be entitled to an order of specific return of thechattel detained; or its value in default of such return in circumstances where thechattel has been destroyed or otherwise unavailable. See NACENN (Nig.) Ltd v. B.A.P.Ltd (supra) at 208 - 209, paragraphs G - A; Julius Berger (Nig) Plc v. Omogui (2001) 15NWLR (Pt.736) p.401 and Zenon Pet & Gas v. Idrissiya Ltd (supra) at p.245 paragraphsF - H." Per TSAMMANI, J.C.A. (Pp. 34-35, Paras. C-E) - read in context

5 DAMAGES - SPECIAL DAMAGES: Whether anticipated profit is in the class of specialdamages that must be proved"It is the law that anticipated profit is in the class of special damages which must bestrictly proved by evidence. See A.G.; of Oyo State & Anor v. Fairlakes Hotels Ltd &Anor (No.2) 12 S.C.N.J. p.1.."Per TSAMMANI, J.C.A. (P. 37, Paras. D-E) - read in context

6 TORT - DETINUE: Options available to a person suing in detinue"It is the trite law therefore that, a person suing in detinue has the option to sue forreturn of damages the chattel in question and for the wrongful detention; or sue forit's value."Per TSAMMANI, J.C.A. (P. 38, Paras. B-C) - read in context

7 DAMAGES - DAMAGES FOR DETENTION: The nature of damages that a plaintiff isentitled in an action in detinue"Generally the damages a claimant is entitled to would be nominal or generaldamages for the detention where the chattel has been returned. Such damage isgenerally presumed. where special damages are claimed, they must be specificallyproved by evidence. See C.D.C. (Nig) Ltd v. SCOA (Nig) Ltd (2007) 6 NWLR (Pt.1030)p.300; NACENN (Nig.) Ltd v. B.A.P. Ltd. (supra)."Per TSAMMANI, J.C.A. (P. 38, Paras. C-E) - read in context

8 ACTION - PLEADINGS: Whether parties are bound by their pleadings"It is the law that, parties are bound and limited in their claims to the pleadings.Accordingly, a Court should not award a relief which is not claimed by any of theparties. This is because, a Court of Law is a Court of Justice and should thereforealways administer justice according to law and not according to sentiments."PerTSAMMANI, J.C.A. (P. 39, Paras. A-B) - read in context

9 WORDS AND PHRASES - "DETINUE": Meaning of "Detinue""By way of definition Detinue is a wrongful retention of the possession of goods andthe wrong arises upon the detention of the chattel, after demand for its return by theperson entitle to it immediate possession has been made. See Julius Berger NigeriaPlc. v. Omogu (2001) 15 NWLR (Pt.736) page 401 at 415 - 416 para H-A."PerONIYANGI, J.C.A. (Pp. 41-42, Paras. F-A) - read in context

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10 TORT - DETINUE: What is an action in detinue based on"It is trite that in detinue there must be a demand followed by a refusal. An actioncannot be founded only on the demand by the claimant without a correspondingrefusal. See Chigbu v. Tonimas (Nig.) Ltd. (2006) 9 NWLR (Pt.984) page 186 atpg.210."Per ONIYANGI, J.C.A. (P. 42, Paras. D-E) - read in context

11 PRACTICE AND PROCEDURE - REASONABLE TIME: The concept of reasonable andwhat it entails"...in Barrister Amanda Pam & Anor v. Nasiru Mohammed & Anor (2008) 5 - 6 SC (Pt.1)83, it was stated that:"Reasonable time in its nebulous content cannot be determined in vacuo but inrelation to the facts of each case because what constitutes a reasonable time in eachcase may not constitute reasonable time in another case".And in Moses Abiegbe & Anor v. Edhereniu Ugbodume & Ors (1973) 1 sc 103 it wasstated that:"What is a reasonable time to do some act or acts depend on many circumstances fordifferent occasions". Per OKORONKWO, J.C.A. (P. 46, Paras. C-F) - read in context

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HARUNA SIMON TSAMMANI, J.C.A. (Delivering the

Leading Judgment): This appeal is against the judgment

of the Ogun State High Court, sitting at Abeokuta in Suit

No: AB/25/2009, delivered by The Hon. Justice P. A.

Onamade on the 24th day of June, 2013.

The Respondents in this appeal were the Claimants at the

Court below, while the Appellant was the Defendant. The

Respondents as Claimants had taken out a Writ of

Summons against the Appellant, wherein they prayed the

Court below to grant them the following reliefs as per

Paragraph 37 of the Amended Statement of Claim:

"38. WHEREOF the Claimants claim against the Defendant

as follows:

(i) Declaration that the detention of the 2nd Claimant's title

documents registered as No.59 at page 59 in Volume 1853

of the Lands Registry, Ibadan, by the Defendant on account

of a debt long settled inspite of repeated demand is illegal,

unlawful and unconscionable.

(ii) The sum of N285,000,000.00 (Two Hundred and Eight-

Five Million Naira) being special damages for the losses

suffered by the Claimants owing to the act of the

Defendant.

PARTICULARS

(a) Loss of projected earnings from November, 2008 to

March, 2009 = N270,000,000=00

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(b) Cost of preparation of feasibility report and

procurement of materials on site = N15,000,000=00

(iii) The sum of N500,000,000=00 (Five Hundred Million

Naira) as general damages for the Defendant's wrongful

detention of the Claimant's document.

(iv) Interest of 10% on the above sums from the date of

judgment till same is liquidated."

Briefly, the Plaintiffs/Respondents' claim is that, sometime

in 1981, the 1st Respondent applied for a loan of one

hundred and fifty thousand naira (N150,000=00) from the

defunct National Bank of Nigeria to enable it execute

certain contract projects. That as condition for the grant of

the loan, the 1st Respondent was requested to deposit title

documents of landed property. Accordingly, to satisfy that

condition, the 2nd Respondent as chairman/Managing

Director of the said 1st Respondent title released the

documents of his landed property registered as No.59 at

page 59 in volume 1853 at the Lands Registry office,

Ibadan to the 1st Respondent. The 1st Respondent then

deposited the title deeds of that property with the

Appellant as security or collateral for the loan by executing

a Deed of conveyance in favour of National Bank of Nigeria

who

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then perfected the mortgage.

The facts as disclosed in the pleadings and evidence

adduced by the parties disclose that a dispute arose in the

relationship between the National Bank and the

Respondents. As a result of the dispute the Respondent

instituted an action against National Bank in suit No:

AB/200/96. Judgment in that case was delivered on the

10/9/1999 wherein, the Court adjudged the Respondents to

be indebted to the Appellant to the tune of Seventy-five

Thousand and Eighty-one Naira (N75,081.00) only. That on

the 28/9/1999, the Respondent paid the sum of N74,081.00

to National Bank on the belief that such payment was in

total satisfaction of the judgment debt. That on the

04/11/1999, the 2nd Respondent then wrote the National

Bank of Nigeria Ltd intimating it of such payment and

further demanded for a return of the title deeds of the land

conveyed to them as collateral for the loan.

It is also the case of the Plaintiffs/Respondents that, due to

bank mergers and acquisitions in the banking industry

National Bank of Nigeria Plc was acquired by the Appellant

(Wema Bank). That the Respondents therefore, through

their solicitor, Chief Afe

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Babalola, SAN & Co again wrote the Appellant vide fetters

dated 28/2/2006 and 18/9/2008 demanding for the release

of the title documents, yet the Appellant failed to oblige

them. That the Respondents however discovered later on,

that the amount earlier paid to National Bank of Nigeria

Ltd in satisfaction of the judgment debt it owed the

Appellant was short by One Thousand Naira (N1,000=00)

only, which they caused to be paid to the Appellant. That,

after making the payment, the Respondent sent a Bank

Draft for the payment to the Appellant through their

solicitors and also made a further demand for the release of

the title deeds, but the Appellant again failed to release the

title deeds.

According to the Plaintiffs/Respondents, the 2nd

Respondent had made two separate applications for loans

from First Bank of Nigeria and Astra Polaris Micro Finance

Bank Nigeria Ltd in the sums of N35,000,000=00 and

N25,000,000=00 respectively, to enable him finance his

business which was almost collapsing due to lack of

finance. That the two banks both requested as one of the

conditions for the grant of the loan, the conveyance to them

of title deeds of landed property for

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security for the loan. That, consequent upon that, the

Respondents again wrote the Appellant through their

counsel by letter dated the 20/10/2008 demanding the

immediate release of the title documents but the Appellant

refused and or neglected to release the said title

documents: That, the Respondents were left with no option,

than to institute an action before the Court below which

they did vide writ of summons and Statement of Claim

dated the 09/02/2009 and filed the 10/02/2009.

The Appellant as Defendant in the Court below, presented

her case through D.W.1. The Appellant then agreed that,

the judgment debt owed the Appellant by the Respondents

emanated from the judgment of the Court below in Suit

No:AB/200/96 delivered on the 10/9/99, to the tune of

Seventy-Five Thousand and Eight-One Naira, Seventy Kobo

(N75,081.70k). The Appellant however contended that

there were several correspondences from the Respondents'

counsel demanding for a release of the Deed of Conveyance

and that the Appellant have always let it be known to the

Respondents that the judgment sum was yet to be

liquidated. That it is when the entire judgment sum had

been fully liquidated that

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the process to return the documents would commence.

Furthermore, that the Respondents had not shown to the

Appellant any evidence of payment of the amount due to

liquidate its indebtedness as settled by the Court, so as to

enable it perfect its record in order to release the

documents. That, the sum of N74,081.70k claimed to have

been paid by the Respondents to National Bank of Nigeria

Ltd did not fully satisfy the judgment debt. The Appellant

therefore concluded that, the Respondents had not

liquidated fully the judgment debt, but that the title

documents were released to the Respondents on the

17/2/2009.

At the trial, the Respondents as Plaintiffs called three

witnesses and tendered several exhibits. The Appellant

called only one witness and also tendered some exhibits.

Counsel then filed and served Written Addresses, and in a

considered judgment delivered on the 24th day of June,

2013 the learned trial Judge adjudged the Appellant liable

in damages and awarded Fifteen Million, seven Hundred

and Fifty Thousand Naira only (N15,750,000.00) against

the Appellant in favour of the Respondents. The Appellant

being dissatisfied with the judgment has filed this

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appeal.

The first Notice of Appeal was dated on the 06th day of

August, and filed 2013 on the 7th of August, 2013. A

second Notice of Appeal was also filed on the 13/08/2013,

also within time. There is a third Notice of Appeal which is

undated but filed on the 29/08/2013 and signed by

Kolawole Esan; Esq. See pages 322 - 332 of the Record of

Appeal. At the hearing of the appeal on the 17/09/2015,

learned counsel for the Appellant withdrew the Notices of

Appeal dated the 06/8/13 and filed the 07/8/13; and that

dated and filed the 13/8/2013. This appeal was therefore

argued on the Notice of Appeal dated and filed on the

29/8/2013.

The said Notice of Appeal consists of four Grounds of

Appeal. In obedience to the Rules of this Court, the parties

filed and exchanged Briefs of Arguments. The Appellant's

Brief of Arguments was dated and filed on the 19/02/2015

but deemed filed on the 30/4/3015. Therein, four issues

were raised for determination as follows.

1. Whether on the totality of the evidence before the Court,

the learned trial judge was not in error when he held that

the loan facilities sought by the Claimants from either the

First Bank or Astra Polaris

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Micro-Finance Bank might have been given if the 2nd

Claimant's Original Deed of Conveyance had been released

in time after liquidation of the indebtedness to the

Defendant (Ground 1).

2. Whether after finding that the Claimants/Respondents

did not prove special damages, the learned trial judge was

right in his application of the maxim ubi jus ibi

remedium in awarding damages in favour of the

Claimants/Respondents. (Ground 2).

3. Whether the learned trial Judge was justified in choosing

the higher figure of N35 Million as against the lower figure

of N25 Million in calculating the damages due without any

evidence before him and whether in particular, the learned

trial Judge was not wholly in error when he not only

awarded damages in favour of the claimants/Respondents

but also proceeded to award damages beyond the period of

claim by the Claimants/Respondents. (Ground 3).

4. Whether the award of damages was not excessive and

whether the learned trial Judge had not descended into the

area of litigation in the route towards the award of

damages. (Ground 4).

The Respondents' Brief of Arguments was dated and filed

on the 28/5/2015. Therein, the Respondents raised two

issues

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for determination as follows:

1. Whether on the totality of the evidence before the Court,

the learned trial Judge was not in error when held that the

loan facilities sought by the claimants from either the First

Bank or Astra Polaris Micro-Finance Bank might have been

given if the 2nd Claimant's Original Deed of conveyance

had been released in time after liquidation of the

indebtedness to the Defendant. (Ground 1).

2. Whether the award of the sum of N15,750,000.00

(Fifteen Million, Seven Hundred and Fifty Thousand Naira)

as damages to the Respondents was not justified and

justifiable particular regard being had to the finding of the

learned trial judge that the Appellant wrongly detained the

Respondents?

A careful consideration of the issues raised by the parties

would show clearly that the issues formulated by the

Respondents brings out the issues for determination

clearer. In that regard, I shall adopt the issues raised by

the Respondents as mine in the determination of this

appeal. I also find it pertinent to point out that issue one (1)

as formulated by Respondents has been subsumed in the

Appellant's issue one (1), while the Appellant's issues 2, 3

and 4

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are adequately captured in the second (2nd) issue

formulated by the Respondent. Accordingly, the Appellant's

issues 2, 3 and 4 will be argued together as issue two (2).

Now, in arguing issue one, learned counsel for the

Appellant referred us to the judgment of the trial Court at

page 314 lines 12 - 21, to submit that the findings and

conclusion of the learned trial Judge is erroneous and

speculative as it overlooked the testimony of the P.W.3.

That the said witness had stated that the financial

institutions were not bound to grant the exact amount

requested by a customer as loan. It was therefore

submitted that, if the trial Court had directed its mind to

that piece of evidence, it would have been circumspect in

coming to the conclusion that "the loans might have been

given" if the 2nd Respondent's "original Deed of

Conveyance had been released in time after liquidation of

the indebtedness to the Defendant".

That, from the testimony of the PW3, there was no certainty

that the loans would have been granted at all or the exact

amount.

Learned Counsel for the Appellant further submitted that,

the combined effect of Exhibits C1, C5 and K show that as

at the time

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those exhibits came into being, the indebtedness of the

Respondents to the Appellant had not been fully settled to

enable the Appellant release the title document. It was

therefore submitted that, from the Exhibits tendered before

the Court, before the 21st November, 2008 the

indebtedness of the Respondents to the Appellant had not

been completely settled, and thus the bank could not

release the title documents without the judgment sum

being fully liquidated.

Furthermore, that the DW1 testified in his Statement on

Oath at page 121 of the record of appeal enumerating the

process to be followed before the documents could be

released, and was never cross-examined on it; and that

such piece of evidence is deemed unchallenged and

therefore admitted. The cases of LSPDC & Anor v.

Nigerian Land Sea Foods Ltd (1992) NWLR (Pt.243)

p.620 and Obmiami Brick & Stone Nig. Ltd v. A.C.B.

Ltd (1992) 3 NWLR (Pt.229) p.260 at 294 paragraph

A, were cited in support. That this piece of evidence further

buttresses the testimony of the D.W.1 to the effect that the

sum of N74,087.70 claimed to have been paid by the

Respondents was not the full and final settlement of the

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judgment debt owed to the Appellant.

Learned Counsel for the Appellant went on to submit that,

P.W.2 stated at page 222 lines 7 - 10 of the Records that, it

was while he was to go to Court that he completed payment

of the sum of N75,000.00 adjudged in Suit No: AB/200/96.

That, the evidence of the PW2 clearly demonstrated the

fact that the Respondents had not settled the total

indebtedness to the Appellant.

Furthermore, that the evidence of completion of payment

made vide Exhibit "G' was only delivered to the Appellant

through a letter dated the 28/11/2008 (Exh. L) and received

by the Appellant on the 05/12/2008. It was thus submitted

that, the implication is that, before the 5th day of

December, 2008, and as at the time the Respondents

applied for the loan facilities with the First Bank Plc and

Astra Polaris Micro-Finance Bank through Exhibits B1, C3,

C4 and C5, they had not fully liquidated their indebtedness

to the Appellant. That, there was no evidence before the

Court that the Respondents made a fresh demand for

release of the document from the Appellant, after the 5th

December, 2008, nor was there evidence of fresh

application made to the banks without

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success after the title documents were released or before

the Respondents sought redress in Court. We were

accordingly urged to hold that, there was no detention that

was illegal or unlawful in the circumstances.

Learned Counsel for the Respondents contended that, the

submissions of the Appellant on this issue is erroneous.

That, in determining the issue, the learned trial Judge

evaluated the evidence led by the parties and came to a

conclusion at page 307 of the Records that:

"..., I have no hesitation to conclude that the sums of

N74,081.70 in Exhibit "D2" and N2,000 in Exhibit "G" were

paid to and received by the Defendant. It thus means that

the claimants eventually settled their indebtedness to the

Defendant on 21 November, 2008."

Learned Counsel for the Respondent then submitted that,

there is no challenge to the above finding of the learned

trial Judge, and therefore it remains undisputed that the

whole indebtedness of the Respondent was fully paid to the

Appellant. That based on the above findings, the learned

trial Judge considered the Respondents' claim for losses

suffered as a result of its failure to secure loan facilities

from First Bank Plc and

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Astra Polaris Micro-Finance Bank. That the learned trial

Judge also evaluated the various correspondences between

the Respondents and the said banks which were tendered

in evidence; and that based upon such evaluation,

particularly that of Exhibits C5 and C6, and came to the

conclusion that the loan facilities would have been given if

the 2nd Respondent's Original Deed of Conveyance had

been released in time after liquidation of the indebtedness

to the Defendant. That the findings of the learned trial

Judge are neither erroneous nor speculative, because:

(i) The findings of the learned trial Judge who had the duty

to evaluate and ascribe probative value to the totality of the

evidence before him, based his findings on the oral and

documentary evidence adduced and tendered before

him.(ii) The findings of the trial Court was based on the

contents of Exhibits C5 and C6 wherein the banks

approached by the Respondents for loan facilities declined

further processing of the application for no other reason

than the failure of the Respondents to produce title

documents that the Appellant had refused to release.

(iii) The learned trial Judge had also found as a fact that

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the Respondents had fully repaid their indebtedness to the

Appellant.

(iv) There was unchallenged finding that the Appellant

wrongly detained the documents of the Respondents after

they had fully repaid their indebtedness to the Appellant.

It was also submitted that, the fact that the banks were not

bound to grant the exact amount of loan sought by the

Respondents does not remove the fact that the banks could

not in any event, grant a loan, in whatever amount

whatsoever, to the Respondents for the simple reason that

the Respondents were unable to produce the title

documents which were wrongly detained by the Appellants.

That, what is discernible from the evidence of PW3 is that

the consideration whether to grant a facility sought by a

customer in full or in part will only be taken after the

customer had fulfilled the conditions necessary for the

grant of a facility: That by Exhibit C5, Astra Polaris Micro-

Finance Bank refused to proceed with further processing of

the Respondents' application owing to non-production of its

title documents.

Learned counsel went on by referring to the finding of the

learned trial Judge at page 309 of the records, wherein the

learned

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trial Judge held that the Appellant had failed to tender any

documentary evidence with regards to the procedure for

the release of the documents and that there is no appeal

against that finding. That that finding is binding on the

parties. It was further contended that, the alleged failure of

the Respondents to liquidate fully indebtedness to the

Appellant could not avail the Appellant because its failure

to produce the title documents was never anchored on the

fact that the Respondents had not fully liquidated the

indebtedness. That indeed, it was the Respondents who on

their own discovered that the judgment debt had been

underpaid. We were accordingly urged to resolve this issue

in favour of the Respondents.

Before I proceed, I find it necessary to point out that, the

claim of the Respondents who were Claimants or Plaintiffs

at the Court of trial is predicated on detinue. They had

sought that the Court declare that the detention of the 2nd

Respondent's title documents on account of a debt long

settled inspite of repeated demand is illegal, unlawful and

unconscionable. The other claims for damages are

dependent on the success or failure of the first claim. The

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principal claim of the Respondents in this appeal is

therefore a declaratory one. It is the law that in an action

seeking for declaratory reliefs or orders, the Plaintiff has

the sole burden to adduce credible evidence which must

satisfy the Court that the plaintiff is entitled to the

declaration sought.

To succeed, the plaintiff must rely on the strength of his

own case, as declaratory orders are not granted even on

the admission of the Defendant; though where a weakness

in the Defendant's case supports the case of the Plaintiff,

such a plaintiff may rely on it to strengthen his own case.

Ultimately, the burden is on the plaintiff all through to

prove by credible evidence that he is entitled to the

declaration sought- Thus, in the case of Dumez Nigeria

Ltd v. Nwakhoba (2008) 18 NWLR (Pt.1119) p.361,

Mahmud Mohammed, JSC (as he then was) held that:

"The law on the requirements of the plaintiff to plead and

prove his claims for declaratory reliefs on the evidence

called by him without relying on the evidence called by the

Defendant is indeed well settled. The burden of proof on

the plaintiff in establishing Declaratory Reliefs to the

satisfaction of the Court is

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quite heavy in the sense that such Declaratory Reliefs are

not granted even on admission by the Defendant where the

Plaintiff fails to establish his entitlement to the declaration

by his own evidence."

Basically therefore, in claims relating to declaratory reliefs,

the burden is on the plaintiff to establish his claim on the

strength of his claim and should not rely on the weakness

of the defence. See, Nwokidu v. Okanu (2010) 3 NWLR

(pt.1181) p.362; Alechendu v. Oshoke (2002) 9 NWLR

(Pt.773) p.521 at 535; Dantata v. Mohammed (2000) 7

NWLR (Pt.664) p.176 and Senator Julius Aliucha &

Anor v. Martin Nwanscho Elechi & Ors (2012) LPELR -

7823 (SC).

As pointed out earlier in the course of this judgment, the

Respondent's claim before the trial Court, was for the

Court to declare that the act of the Appellant in failing or

refusing to release the title document for the landed

property deposited with the Appellant by the Respondents

as security for a loan had caused them special and general

damages. The head of claim is therefore on the tort of

detinue.

In the case of Zenon Pet & Gas v. Idrisiyya Ltd (2006) 8

NWLR (Pt.982) p.221 at 245 paragraphs E - G, M. D.

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Muhammad, JCA (as he then was) describes an action in

detinue in the following words:

"An action in detinue is brought for recovery of the specific

personal chattel, ...wrongly detained from the person

entitled to the possession of them, and /or for damages

occasioned by the wrongful detainer, the Appellant herein.

Accordingly, detinue is based on the Defendant's wrongful

detention of plaintiff's chattel coupled with the Defendant's

refusal to deliver up and restore possession of the chattel

following the Plaintiff's demand. The redress the Plaintiff is

entitled to is strictly not for the wrong but for the return of

the chattel he had been dispossessed, or the value of the

chattel if same had been destroyed as well as the loss of

use of the chattel."

My Lord, Ogunbiyi, JCA (as he then was) at page 249 of

the case cited above, also describes the tort of detinue as

consisting in the wrongful withholding of the Plaintiff's

goods. That it does not matter whether the person or the

wrong doer, i.e. the detainee of the goods obtained

possession of the detained goods lawfully or illegally or by

seizure, and that what is relevant is the wrongful retention

or

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detention of the chattel after demand. My Lord therefore

concluded that:

"It is therefore material that, to sustain an action in

detinue, there must be demand by the plaintiff and on

receipt of this notice the persistence in keeping the chattel

by the Defendant would give rise to an action in detinue."

A claim in detinue is therefore one that is predicated on a

possessory right or action that seeks recovery of personal

chattels illegally or unjustly retained or detained. The claim

in detinue therefore germinates from the act of delivery of

goods by the owner to another to keep, and who afterwards

fails or refuses to deliver back the chattel or goods to the

true owner. In an action or claim for detinue therefore, it is

necessary that the Defendant should have come into

possession lawfully either by finding it or the delivery of

same. It is an action which lies for the recovery of property

from one who has acquired possession of it lawfully but

retains same wrongfully, illegally or without a right to

continue in such possession, upon demand by the person

entitled to possession. The Defendant should therefore not

have any reasonable justification for keeping or

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detaining the chattel. See F.B.N. Plc v. Sangonuga

(2007) 3 NWLR (Pt.1021) p.230; NACENN (Nig) Ltd v.

B.A.P. Ltd (2011) 11 NWLR (Pt.1257) p.193 and

Anuruba v. E.C.B. Ltd (2005) 10 NWLR (Pt.933)

p.321.

To succeed in a claim in detinue therefore, the plaintiff

must adduce credible evidence to establish the following

facts:

(i) That he is the owner of the property chattel in question

(ii) That he has an immediate right to possession of the

property or chattel;

(iii) That the Defendant is in actual possession of the

property or chattel;

(iv) That he has made proper demand on the Defendant to

deriver up possession of the property or chattel to him; and

(v) That the Defendant, has, without lawful excuse, refused

or failed to deliver up the property or chattel to him.

It would be seen therefore that the gravamen or centre-pin

in an action in detinue is the wrongful retention of the

chattel.

In the instant case, it is not in dispute that the property in

question is the 2nd Respondent's title document in respect

of his landed property Registered as No.59 at page 59 in

Volume 1853 of the Land Registry at Ibadan. It is also

established that the said property was deposited

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with the Appellant as security for a loan in the year, 1981.

It is further agreed by the parties that the said title

document was to be released or returned to the

Respondents upon full satisfaction or liquidation of the

loan.

The facts as established further show that a dispute arose

in the relationship between the Respondents and the

Appellants, leading to Suit No: AB/200/96; and the Court

adjudged the Respondents to be indebted to the Appellant

in the sum of Seventy-Five Thousand and Eighty-One Naira

(N75,081.00). There is no dispute on the fact that Appellant

held onto the title documents. The fact in dispute or which

the Court was saddled with resolving is whether the

Respondents made a proper demand for the title

documents which the Appellant refused or failed to deliver

the title documents. The Respondents in proof of their case

had pleaded at paragraphs 11, 12, 13, 15, 16, 17 and 18 as

follows:

"11. The 1st Claimant instituted an action against National

Bank in Suit No:AB/200/96 (Arison Trading Engineering

Co. Ltd v. National Bank of Nigeria). Relevant

documents will be relied on at the trial.

12. The Court in the said case delivered its judgment on

10/9/99 and ruled that the claimant is indebted

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to National Bank in the sum of N75,081 being outstanding

interest on loan obtained from the Defendant. The Claimant

shall rely on the judgment of the Court.

13. The claimant avers that it paid the sum of N74,081 to

National Bank on 28th September, 1999 on a mistaken

belief that it was the total judgment sum.

14. Due to the merger and acquisition which in occurred

the banking industry, the Defendant acquired National

Bank.

15. The claimants caused their solicitor, Chief Afe Babalola,

SAN & Co, to officially demand for the release of the title

documents in possession of the Defendant through letters

dated 28th February, 2006 and 18th September, 2008 from

the Defendants, Claimants will rely on the said letters at

the trial.

16. Sometime in September, 2008, the claimants

discovered that the amount they paid for the liquidation of

the judgment debt was short by N1,000.00. They

immediately caused to be paid to the Defendant the sum of

N2,000 i.e. 1,000 in excess of the shortfall.

17. The 2nd claimant sent the bank draft for payment of the

money pleaded in paragraph 16 to the Defendant through a

letter by their solicitor and in the same letter demanded for

the release

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of the property title deeds pleaded..

18. The 2nd Claimant apart from the above letters made

several visits to the Defendants in order to obtain the title

documents but the Defendants did not yield to the request."

In proof of those facts pleaded, the Respondents called

three witnesses. The testimony of the witness I find

germane is that of the PW2 who adopted and relied on his

written statement on oath made on the 10/2/2009 as his

evidence in-chief. Several documents were tendered and

admitted through him, amongst which are exhibits in

support or validation of the above stated pleadings. The

documents I find relevant to the above pleadings are

Exhibits D1, D2, E, F, G respectively. Specifically, Exhibits

"D1" dated the 04/11/1999, "E" dated the 28/2/2006 and "F"

dated the 20/10/2008, demanded of the Appellant, to return

the Deed of conveyance Registered as No.59 at page 59 in

Volume 1853 of the Land Registry Office, Ibadan in the

name of Chief Duro Aikulola (2nd Respondent).

It is instructive to note that, the Appellant, as Defendant in

the Court below had responded at paragraphs 7, 8, 9, 10,

11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the Statement of

Defence

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to the effect that, the Respondents are the architects of

their own misfortune as they had delayed in full payment of

the judgment debt. That the Respondents had failed to

show evidence of full payment of the judgment debt as at

the date they wrote Exhibits D1, E and F. That in any case,

they had pointed out to the Respondents, upon receipt of

the Letters of Demand of the Respondents for the release of

the said Deed of Conveyance, written letters to the

Respondent's solicitors demanding evidence of full payment

of the judgment debt in Suit No:AB/200/96.

Now, based on the positions taken by the parties, I am of

the view that it will be necessary to determine whether, at

the time the Respondent wrote the Appellant demanding

the release of the Deed of Conveyance, they had fully

liquidated the judgment sum. This is because, the release of

the Deed of conveyance was clearly dependent upon full

liquidation of the said judgment debt by the Respondents.

The position of the Appellant is clearly brought out by

Exhibits "L" and "M". Exhibit "L" was dated the 24/7/2007

while Exhibit "M" was dated the 24/9/2008. In the two

exhibits, the Appellant requested for payment of

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the said judgment debt or evidence of such payment. It is

clear therefore that, as at the 24/9/2008, there was still

dispute between the parties as to whether, full liquidation

of the judgment debt had been made. At last, the

Respondents betrayed their position, and thus owned up

when they wrote Exhibit "K" dated the 28/11/2008. Therein,

the Respondents unequivocally admitted at page 2

(paragraph 6 thereof) as follows:

"On 27th of November, 2008 while going through the

judgment, we discovered that the judgment debt was

N75,081.79k (seventy-Five thousand, Eighty-one Naira and

seventy Kobo) this means, that our payment made on 26th

September, 1999 was less by N1,000 (One Thousand Naira)

only. As a result of this, we hereby attach a GTB Bank draft

number 02202274 of Two Thousand Naira dated 21st

November, 2008."

After reviewing both oral and documentary evidence

adduced by the parties, the learned trial Judge found and

thus, held at page 307 lines 1 - 5 of the records as follows:

"With the above decisions of Superior Courts of record, I

have no hesitation to conclude that the sums of N74,081.70

in Exhibit "D2" and N2,000 in Exhibit "G" were paid and

received by the

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Defendant. It thus means that the claimants eventually

settled their indebtedness to the Defendant on 21

November, 2008."

The above finding of the trial Court has not been

challenged in this appeal in anyway. It is the law that any

finding of fact by a trial Court on a vital point in issue, for

which there is no appeal, is deemed established. Such fact

remains valid, subsisting and binding on the parties. See

Ebenigbe v. Achi (2011) 2 NWLR (Pt.1230) p.65;

L.H.A.B.U.M.B. v. NYIB (2011) 12 NWLR (Pt.1260) p.1

and S.P.D.C.N. Ltd v. Ejebie (2011) 17 NWLR

(Pt.1276) p.324. It therefore remains settled, that the

Respondents finally settled fully their indebtedness to the

Appellant on the 21/11/2008.

I wish to clarify here that liability of a Defendant for

detinue, in the circumstances of this case does not

automatically arise on the date the debt due was liquidated.

It is my view that the liability of the Appellant will arise

from the date the Respondents made a demand for release

of the Deed of conveyance. Now, having found and held

that the debt due was fully liquidated on the 21st

November, 2008, it would mean that, all other demands for

the release of the Deed of conveyance, made

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prior to the 21/11/2008, did not give any right to the

Respondents to demand for release of the Deed of

conveyance. Thus, Exhibits "D1", "E" and "F" did not

amount to valid demand for release of the Deed of

Conveyance, and therefore could not form any basis for

liability for detinue against the Appellant.

After a careful study of the documents tendered by the

parties, I find that the document relevant is that dated the

28/11/2008. That letter was tendered at the trial by the

Appellant as Exhibit "K." It is in that document that the

Respondents specifically made a demand for release of the

Deed of conveyance. The learned trial Judge would appear

to be of the view, when assessing the damages at page 320

lines 21 - 23 of the records that the effective date for

liability for detinue to arise in the circumstances of this

case is 21/11/2008. That, in my view is erroneous.

By the letter dated the 28/11/2008, the Respondents while

admitting their error with respect to the issue of payment

of the judgment debt, wrote in paragraph 7 of the said

Exhibit "K" that:

"On a final note, we hereby demand for the release of the

Deed of conveyance Registered as No.59 at page 59 in

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Volume 1853 of Land Registry Office, Ibadan in the name of

Chief Duro Aikulola within 7 days of your receipt of this

letter, failure of which we will not hesitate to perfect our

client's brief by instituting legal action against the bank."

The acknowledgment stamp on Exhibit 'K' reveals that the

demand for the release of the Deed of Conveyance was

received by the Appellant on the 05/12/2008. The evidence

discloses that the Deed of Conveyance was finally released

to the Respondents on the 17/2/2009, after the

Respondents had instituted their action claiming damages

for detinue. From the above analysis therefore, I am of the

view that the learned trial Judge was right when he held

that there was no justification on the part of the Appellant

to have continued holding the Respondent's title document

after settlement of the indebtedness. That liability arose

from the 28/11/2008 when the Respondents made the

demand for release of the Deed of conveyance. The issue to

be considered next is the issue of damages the

Respondents were entitled to. This issue is settled as issue

two (2).

Arguing issue two (2), learned counsel for the Appellant

argued in his issues, 2, 3 and

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4 by referring to the findings of the learned trial Judge at

pages 314 lines 1 - 9, 21 - 24; 318 - 319 lines 26 - 2 and 320

lines 20 - 26, that the claim of the Respondents was not one

for causing delay in releasing the title deed after the

liquidation of the loan granted to the Respondents by the

Appellant, but was one for special and general damages for

wrongful detention of the Respondents title document.

That, the learned trial Judge having found that the

Respondents failed to prove special damages, did a

complete somersault and without foundation invented

evidence and relied on the principle of ubi jus ibi

remedium. That the decision of the learned trial Judge

failed the test for the application of the principle as laid

down in the case of Bello v. A.G; Oyo State (1986) 5

NWLR (Pt.45). p.828 at 890 paragraphs A - B, because:

(i) The case before the trial Court was not one without a

remedy; and the Respondents failed to prove access to the

remedy open to them.

(ii) The Appellant was not under a duty to the Respondents

as at 21/11/2008.

(iii) There could not have been a breach of a duty that had

not arisen before the 05/12/2008, especially when there

was no

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fresh request for the release of the title document nor a

fresh application for the bank loan.

(iv) The Respondents did not prove that they suffered any

injury.

Learned counsel for the Appellant thus submitted that the

learned trial Judge raised the application of ubi jus ibi

remedium without foundation and in vacuo. That by so

doing, the learned trial Judge descended into the arena of

litigation and thus made a case for the Respondents to the

detriment of the Appellant.

It was further contended by learned counsel for the

Appellant that, there was no justification in choosing the

higher figure of N35 Million as against the lower figure of

N25 Million in calculating damages by the learned trial

Judge. That the learned trial Judge in his assessment of

damages chose on his own the higher sum of N35 Million

applied for from First Bank as against the lower sum of

N25 Million applied for from Astro Polaris Micro-Finance

Bank, without any evidence of preference from the

Respondents. That by so doing, the learned trial Judge

descended into the arena of litigation to make a case out

for the Respondent.

On the issue of the sum of N15,750,000.00 awarded the

Respondents, it

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was submitted that, the learned trial Judge made the award

without any evidence. That, that finding is speculative and

does not flow from the pleadings and evidence before the

Court. The case of American Cyanamid Company v.

Vitality Pharmaceuticals Ltd (1991) 2 NWLR (Pt.171)

p.15 at 30 paragraph G and Odonigi v. Oyeleke (2001)

6 NWLR (Pt.708) p.12 at 35 paragraphs E - G were

cited; and to further submit that, the learned trial Judge

refused to fully appreciate and make use of the evidence

before him which led him not only to award damages but to

award excessive damages in favour of the Respondents. We

were accordingly urged to allow the appeal and to set aside

the decision of the Court below.

In response, learned counsel for the Respondents

contended that, contrary to the assertion of the appellant

the damages awarded in favour of the Respondents is

justified having regard to the totality of the evidence

adduced before the Court. The case of Adetoro v. Ogo

Oluwa Kitan Trading Co. Ltd (2002) 9 NWLR (Pt.771)

p.157 p.157 at 214 paragraphs G - H was cited in

support. Learned Counsel then drew our attention to the

evidence of PW2, the documentary evidence adduced i.e.

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Exhibits B1, B2, B3, C1, C3 and C5, the findings of the trial

Court that the Respondents had fully repaid their

indebtedness to the Appellant, but the Appellant wrongly

detained the title documents of which there is no appeal;

and the unchallenged evidence that the Respondents were

trading or business customers of the Appellant; to submit

that, the trial Court did not take extraneous matters into

consideration in the award of damages. That non of the

conditions under which this Court can disturb the award of

damages made by the trial Court as laid down in Adetoro

v. Ogo Oluwa Kitan Trading Co. (supra) exists to

warrant this Court interfering with the award made by the

Court below.

Learned counsel for the Respondents went on to submit

that the learned trial judge rightly applied the principle of

ubi jus ibi remedium in awarding damages considering

the circumstances of the case. That, though the trial Court

had found that special damages had not been proved, that

finding could not serve to deprive the Respondents

of damages particularly given the fact that there was a

claim for general damages before the Court. It was

therefore contended that, without the

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application of ubi jus ibi remedium, there was a relief

upon which the award of damages could be anchored. We

were accordingly, urged to hold that the damages awarded

was based on credible evidence.

Now, as stated earlier in the course of resolving issue one

(1), the basis for a claim in the tort of detinue is for the

recovery of property from one who has acquired possession

of it but retains the property wrongfully, illegally or without

right. In that sense, a claim in detinue is a claim for the

specific return, delivery or surrender of a chattel to the

plaintiff who is entitled to it. However, when a person's

chattel has been unlawfully detained by another person, the

person who is denied possession or use of that chattel, has

several remedies available to him; and such remedies

include;

(a) specific return of the chattel and damages for its

detention; or

(b) The value of the chattel as assessed and also damages

for its detention; or

(c) Return of the chattel or recovery of its value as assessed

and also damages for its detention.

It therefore means that in an action for detinue, a

successful plaintiff will be entitled to an order of specific

return of the

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chattel detained; or its value in default of such return in

circumstances where the chattel has been destroyed or

otherwise unavailable. See NACENN (Nig.) Ltd v. B.A.P.

Ltd (supra) at 208 - 209, paragraphs G - A; Julius

Berger (Nig) Plc v. Omogui (2001) 15 NWLR (Pt.736)

p.401 and Zenon Pet & Gas v. Idrissiya Ltd (supra) at

p.245 paragraphs F - H.

In the instant case, the Deed of Conveyance which is the

chattel in question was returned to the Respondents on the

17/2/2009. This informed the amendment to the

Respondent's Statement of Claim wherein the claim for

release of the title documents was dropped. There is

therefore no claim for return of the documents of title.

It is not disputed that the learned trial Judge refused the

Respondents' claims on the head of special damages on the

ground that they were not proved. There is no appeal

against that finding. The claim for special damages have

therefore been rested. Curiously, however, the learned trial

Judge for reasons I find hard to understand, introduced the

principle of ubi ius ibi remedium and proceeded to award

damages to the Respondents under circumstances under

which such damages should be proved as

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special damages. Thus, after refusing the Respondents,

claim for special damages, instead of considering the other

claim for general damages, the learned trial Judge went on

to rationalize at page 318 lines 25 - 319 line 8 as follows:

"But there is no doubt that the Defendant did cause

damage to the Claimants for the delay in releasing the title

deed after the total liquidation of the loan granted to the

claimants by the Defendant bank.

It seems the only remedy available to the claimants is in the

broad and general principle law as contained in the old

latin maxim - ubi jus ibi remedium here signifies the

legal authority to do or demand something and remedium

here means the right of action, or the means given by law

for the recovery or the declaration or assertion of that

right. In other words, the maxim presupposes that

wherever the law gives a right, it also gives a remedy.

Conversely, wherever a Plaintiff is claiming a remedy that

remedy must be founded on a legal right per Oputa, JSC in

Chief Dr. Irene Thomas & Ors. v. The Most Reverend

Timothy O. Olufosoye (1986) 1 NWLR 669 at pp.689 -

690."

Despite this clear statement of the law as

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laid down by Oputa, JSC (of blessed memory) to the effect

that, Courts are enjoined to find a remedy where a legal

right has been proved to exist in favour of a claimant, the

learned trial Judge closed his eyes to the pleadings of the

Respondents. By so doing, the learned trial Judge either

wittingly or unwittingly, erroneously awarded damages to

the Respondents which could only be classified as special

damage. There was no evidence before the Court that the

business the loan sought by the Respondents would have

been applied into, would have attracted a profit of 10% per

year.

The evidence at the trial is that the loans were not granted

and so the business was never embarked upon. It is obvious

therefore that the loss of profit awarded by the trial Court

was merely anticipated. It is the law that anticipated profit

is in the class of special damages which must be strictly

proved by evidence. See A.G.; of Oyo State & Anor v.

Fairlakes Hotels Ltd & Anor (No.2) 12 S.C.N.J. p.1

cited by the learned trial judge at page 318 of the Records.

There was no evidence on record upon which the learned

trial judge could base his award of Fifteen Million, Seven

Hundred and Fifty Thousand Naira (N15,750,000.00). such

evidence was merely invented by the learned trial

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judge.

I also find that, the learned trial judge was in error when he

applied the ubi jus ibi remedium principle. In the

circumstances of this case, the Respondents had

established that they had a right to sue in detinue; and the

remedies available to a successful plaintiff suing for

detinue have been well settled by case law, some of which

have been cited in the course of this judgment. It is the

trite law therefore that, a person suing in detinue has the

option to sue for return of damages the chattel in question

and for the wrongful detention; or sue for it's value.

Generally the damages a claimant is entitled to would be

nominal or general damages for the detention where the

chattel has been returned. Such damage is generally

presumed. where special damages are claimed, they must

be specifically proved by evidence. See C.D.C. (Nig) Ltd v.

SCOA (Nig) Ltd (2007) 6 NWLR (Pt.1030) p.300;

NACENN (Nig.) Ltd v. B.A.P. Ltd. (supra).

It is therefore my view that the learned trial Judge erred

grievously when he, suo motu, imported into the case of

the parties, the principle of ubi jus ibi remedium. The

Respondents clearly claimed special and general

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damages as their remedy for the detention of the title

documents. It is the law that, parties are bound and limited

in their claims to the pleadings. Accordingly, a Court

should not award a relief which is not claimed by any of the

parties. This is because, a Court of Law is a Court of Justice

and should therefore always administer justice according to

law and not according to sentiments.

On that score, it is my view which I do hold that the award

of Fifteen Million, Seven Hundred and Fifty Thousand

Naira (N15,750,000.00) made in favour of the Respondents

was in error. The claim for special damages having been

dismissed, the Respondents were only entitled to nominal

or general damages for the detention of their title

documents. This is so as can be gleaned from Exhibits B1,

B2, B3, C1, C2, C3, C4, C5 and C6, which disclose that the

two applications for the loan were made before the

21/11/2008 when the judgment debt was fully liquidated. It

therefore means that as at the date(s) the Respondents

applied for the loan(s), they had no right to possession of

the title documents. They could not in the circumstances,

validly claim for any loss arising from the refusal

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of the banks to approve or grant any loan to them.

Now, I have held that the Respondent were entitled to

general or nominal damages from the Appellant for the

wrongly detention of the title documents. It has also been

found that liability arose from the 28/11/08 when the

Respondents formally made a demand for release of the

title documents. It is also in evidence that the title

documents were eventually released to the Respondents on

the 17/2/2009. The detention of the title deeds was

therefore for a period of seventy-nine (79) days.

It should however be noted that, there is no evidence on

the records that the Respondents reapplied to the banks for

the loan(s) in the period between 28/11/08 and 17/2/09 so

as to aggravate the amount of damages to be awarded.

On the whole therefore, I hereby set aside the award of

Fifteen Million, Seven Hundred and Fifty Thousand Naira

(N15,750,000.00) made by the trial Court in favour of the

Respondents. However, the Respondents had claimed the

sum of Five Hundred Million Naira (N500,000,000.00) only

as general damages for the wrongful detention by the

Appellant of the title documents. Being general damages, I

hereby award the sum of

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One Million Five Hundred Thousand Naira (N1,500,000.00)

only as general damages for wrongful detention of the

Respondents' title documents plus ten percent (10%)

interest per annum thereon, from the day of the judgment

of the Court below, i.e. 24/6/2013 till judgment is fully

satisfied.

It is therefore clear that the appeal has succeeded in part.

Accordingly, that part of the judgment which found the

Appellant liable for wrongful detention of the Respondents'

Deed of conveyance is hereby dismissed.

However, that part of the judgment awarding Fifteen

Million, Seven Hundred and Fifty Thousand Naira

(N15,750,000.00) only is hereby allowed and thus the

award made is set aside. I make no order on costs.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I have had a

preview of the judgment just delivered by my learned

brother HARUNA SIMON TSAMMANI, JCA. I agree with

the reasons therein advanced to arrive at the conclusion

that the appeal succeeds in parts.

As rightly identified by my learned brother the case of the

respondent before the Lower Court was for detinue and

consequential damages.

By way of definition Detinue is a wrongful retention of the

possession of goods and the wrong

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arises upon the detention of the chattel, after demandfor its return by the person entitle to it immediatepossession has been made. See Julius Berger NigeriaPlc. v. Omogu (2001) 15 NWLR (Pt.736) page 401at 415 - 416 para H-A.

As clearly brought out on page 22 of the lead judgmentby my learned brother that liability arose from28/11/2008 after payment of the outstanding balance ofN1,000.00, though the respondent paid N2,000.00 i.e.one thousand Naira in excess. (see Exhibit "K"). Therespondents' entitlement in damages would be from that28/11/2008 and 17/2/2009 and not as erroneouslycomputed by the learned trial judge.

It is trite that in detinue there must be a demandfollowed by a refusal. An action cannot be founded onlyon the demand by the claimant without a correspondingrefusal. See Chigbu v. Tonimas (Nig.) Ltd. (2006) 9NWLR (Pt.984) page 186 at pg.210.

It is crystal clear and not in dispute by parties that thetitle deed of the respondent was not returned till 17/2/09after the demand letter of 28/11/08 Exhibit "K" whichcame into existence after payment of the outstandingbalance of N1,000.00. The appellant is therefore liable indamages for the

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detention of the title deed after final payment and demand

made. See Civil Design Construction Nig. Ltd v. SCOA

Nig. Ltd (2007) 6 NWLR (Pt.1030) page 300 at page

354.

For the above reason and the detailed ones ably advanced

by my learned brother which I hereby adopt, I too feel that

the appeal succeeds in part. I dismiss that ground of appeal

against that part of the judgment which found the appellant

liable for wrongful detention of the respondents' title deed

and I allow the other part, i.e. the ground against the

award of N15,750,000.00 (Fifteen Million, Seven Hundred

and Fifty Thousand Naira).

In its place I also award the sum of N1,500,000.00 (One

Million Five Hundred Thousand Naira) only as general

damages for wrongful detention plus ten percent interest

per annum from the date of judgment by the Court below

i.e 24/6/2013 till when the said sum is fully liquidated.

No order on cost.

NONYEREM OKORONKWO, J.C.A.: I have had a preview

of the lead judgment in this case researched and written by

my learned brother Haruna Simon Tsammani JCA in

which his Lordship amply reviewed the facts and sought for

and applied the appropriate legal principles.

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In an appeal as hair-raising as this in its novelty, it is

difficult to resist the need to make a contribution to an

exposition.

For my purpose here, the facts of the case leading to this

appeal were that the respondents took a loan from the

predecessor of the appellant and as security for the loan

deposited with the said appellant's predecessor title deeds

of their real property thus creating a mortgage legal or

equitable.

As a result of a dispute arising in the loan transaction, the

parties went to Court in AB/200/96 when by the judgment

of 10/9/99, the sum of seventy five thousand, eighty one

naira (N75,081.00) was adjudged as payable to the

appellant by the respondent.

Respondents for reasons best known to themselves paid

seventy four thousand and eighty one naira only (N74,081)

to the appellant. Thus the sum of one thousand naira was

left outstanding.

Upon this payment (that is not in full) the respondent

demanded a return for of the title deeds through letters

written by respondents' solicitors.

upon realizing that the payment was short of one thousand

naira, the respondent, again through their solicitor,

forward a draft for the outstanding balance and again

demanded for a

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release of the title deeds vide their letter dated 28/11/08

Exhibit L which the appellant received on 5/12/2008. The

appellant released the title deeds on 17/2/09 - a period of

74 days.

Before the trial Court, the respondent claimed general

damages of N285,000,000.00 founded largely on failure of

the appellant to release their title document which made

them (respondents) fail to secure loans from two banks

they had applied to for loan for their business.

The trial Court found that at the time the respondent first

applied for the release of the documents they had not

extinguished their indebtedness to the appellant and so no

claim can arise therefrom and after they had extinguished

the indebtedness it was not shown that they (respondent)

made any application to those banks' loan upon the release

of their title deeds. Notwithstanding, the trial judge

awarded general damage of fifteen million, seven hundred

and fifty thousand naira only (N15,750.000.00). This is the

subject of this appeal.

The lead judgment has admirably considered the issue and

concluded that it was not justified in fact or in law because

damages must be rested on some legal right and not

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speculation. See Agbaje v. James (1976) NMLR 49.Certa in ly the award of general damages ofN15,000,000.00 was without foundation and aroseperhaps from mere conjecture see Dumez v. Ogboli(1972) 3 SC 196.

It is true that after the extinction of the debt by Exhibit Lof 28/11/08 received by the appellant on 5/12/08, it tookthe appellant a period of some 74 days before therelease of the title document. It could be said that aperiod of 74 days amounted to a delay and wasunreasonable but what is reasonable in the circumstanceof this case would depend on its peculiar circumstancebecause in Barrister Amanda Pam & Anor v. NasiruMohammed & Anor (2008) 5 - 6 SC (Pt.1) 83, it wasstated that:"Reasonable time in its nebulous content cannot bedetermined in vacuo but in relation to the facts of eachcase because what constitutes a reasonable time in eachcase may not constitute reasonable time in anothercase".And in Moses Abiegbe & Anor v. EdhereniuUgbodume & Ors (1973) 1 sc 103 it was stated that:"What is a reasonable time to do some act or actsdepend on many circumstances for different occasions".

In this case the transaction in this case

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began in 1981 and ennured up to 2009 a period of some 28

years during which litigations raged, mergers and

acquisitions took place. These elements were not taken into

consideration.

The delay of 74 days did not and could not have occasioned

any loss on the respondents as they were not shown to have

applied for any loan on the basis of the title deeds after the

release thereof when it became due for release.

If there was any delay, in my view, the injury resulting

therefrom will fall under the principle of injuria sine

damnum. See Street on Torts 6 Ed page 6. In such

situation Nominal damages will be awarded where the

Court decides in the light of all the facts that no damage

has been sustained. See The Mediana (1900) A.C. 113.

The function of nominal damage in such situation is to mark

the vindication of a legal right where no real damage has

been suffered. Neville v. London Express Newspaper

Ltd (1919) A.C. 368 at 392.

It seem to me that it is upon this consideration that my

Lord Tsammani JCA spurned the award of N15,000,000.00

general damages by the trial judge and awarded

N1,500,000.00 instead which could be seen as Nominal

damage. I agree with the

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conclusion he arrived at and abide by the orders made.

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