WEMA BANK PLC V ARISON TRADING & ENGINEERING CO. LTD. & ANOR

WEMA BANK PLC V ARISON TRADING & ENGINEERING CO. LTD. & ANOR


IN THE COURT OF APPEAL
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN

ON FRIDAY, 9TH OCTOBER, 2015


Appeal No: CA/I/363/2013

CITATION:

Before Their Lordships:

HARUNA SIMON TSAMMANI, JCA

MUDASHIRU NASIRU ONIYANGI, JCA

NONYEREM OKORONKWO, JCA


BETWEEN

WEMA BANK PLC
(APPELLANT)

AND

ARISON TRADING & ENGINEERING CO. LTD.
CHIEF AIKULOLA
(RESPONDENTS)


PRONOUNCEMENTS


A. ACTION
1. Declaratory Reliefs – How the plaintiff must rely on the strength of his case to prove he is entitled to declaratory reliefs
Duty of a party seeking a declaratory relief

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 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). Per TSAMMANI, JCA. read in context

B. TORT
2. Detinue – What an action in detinue seeks to achieve and what must be proved to succeed in a claim for detinue
Nature of the tort of detinue; What must be established for a plaintiff 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 245 paragraphs E – G, M. D.18 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 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 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. Per TSAMMANI, JCA. read in context

C. APPEAL
3. Unappealed Findings – Effect of unappealed findings

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. Per TSAMMANI, JCA. read in context

4. 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 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 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. Per TSAMMANI, JCA. read in context

D. DAMAGES
5. Special Damages – The class of anticipated profit and how it must be proved
Whether anticipated profit is in the class of special damages that must be proved

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. Per TSAMMANI, JCA. read in context

6. 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 for return of damages the chattel in question and for the wrongful detention; or sue for its value. Per TSAMMANI, JCA. read in context

7. Damages for Detention – The damages that a claimant is entitled to in detinue
The nature of damages that a plaintiff is entitled in an action in detinue

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). Per TSAMMANI, JCA. read in context

8. Pleadings – The binding nature of 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 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. Per TSAMMANI, JCA. read in context

E. WORDS AND PHRASES
9. “Detinue” – Meaning of “Detinue”

By way of definition Detinue is a wrongful retention of the possession of goods and the wrong arises upon the detention of the chattel, after demand for its return by the person entitle to it immediate possession has been made. See Julius Berger Nigeria Plc. v. Omogu (2001) 15 NWLR (Pt.736) page 401 at 415 – 416 para H-A. Per ONIYANGI, JCA. read in context

10. Detinue – The action a detinue is founded on
What is an action in detinue based on

It is trite that in detinue there must be a demand followed by a refusal. An action cannot be founded only on the demand by the claimant without a corresponding refusal. See Chigbu v. Tonimas (Nig.) Ltd. (2006) 9 NWLR (Pt.984) page 186 at pg.210. Per ONIYANGI, JCA. read in context

F. PRACTICE AND PROCEDURE
11. Reasonable Time – What reasonable time is and how it can be determined
The concept of reasonable and what 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 in relation to the facts of each case because what constitutes a reasonable time in each case may not constitute reasonable time in another case.”

And in Moses Abiegbe & Anor v. Edhereniu Ugbodume & Ors (1973) 1 sc 103 it was stated that:

“What is a reasonable time to do some act or acts depend on many circumstances for different occasions.” Per OKORONKWO, JCA. read in context


LEAD JUDGMENT DELIVERED BY TSAMMANI, JCA


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 Respondentsin this appeal were the Claimants at the Court below, while the Appellant was the Defendant. The Respondentsas 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

(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 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 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 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 (N75,081.7 k). 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 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 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 7/8/13; 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 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 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 bring 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 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 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 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 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, 00 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 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 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 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 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 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. 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 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 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 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 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 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 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 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 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 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 21/1 /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 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/ /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 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 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 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. 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 none 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 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 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 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 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 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 its 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 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 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 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.

ONIYANGI, JCA

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

As clearly brought out on page 22 of the lead judgment by my learned brother that liability arose from 28/11/2008 after payment of the outstanding balance of N1,000.00, though the Respondent paid N2,000.00 i.e. one thousand Naira in excess. (see Exhibit “K”). The respondents’ entitlement in damages would be from that 28/11/2008 and 17/2/2009 and not as erroneously computed by the learned trial judge.

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

It is crystal clear and not in dispute by parties that the title deed of the Respondent was not returned till 17/2/09 after the demand letter of 28/11/08 Exhibit “K” which came into existence after payment of the outstanding balance of N1,000.00. The Appellant is therefore liable in damages for the 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.

OKORONKWO, JCA

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.

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 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 speculation. See Agbaje v. James (1976) NMLR 49. Certainly the award of general damages of N15,000,000.00 was without foundation and arose perhaps from mere conjecture see Dumez v. Ogboli (1972) 3 SC 196.

It is true that after the extinction of the debt by Exhibit L of 28/11/08 received by the Appellant on 5/12/08, it took the Appellant a period of some 74 days before the release of the title document. It could be said that a period of 74 days amounted to a delay and was unreasonable but what is reasonable in the circumstance of this case would depend on its peculiar circumstance because 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 in relation to the facts of each case because what constitutes a reasonable time in each case may not constitute reasonable time in another case.”

And in Moses Abiegbe & Anor v. Edhereniu Ugbodume & Ors (1973) 1 sc 103 it was stated that: “What is a reasonable time to do some act or acts depend on many circumstances for different occasions.”

In this case the transaction in this case 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 conclusion he arrived at and abide by the orders made.