BASSEY v. VITAMALT PLC

CITATION: (2017) LPELR-42545(CA)

In the Court of AppealIn the Ibadan Judicial Division

Holden at Ibadan

ON FRIDAY, 5TH MAY, 2017Suit No: CA/IB/376/2009

Before Their Lordships:

MODUPE FASANMI Justice, Court of AppealCHINWE EUGENIA IYIZOBA Justice, Court of AppealHARUNA SIMON TSAMMANI Justice, Court of Appeal

BetweenMR. BROWN BASSEY - Appellant(s)

AndVITAMALT PLC - Respondent(s)

RATIO DECIDENDI

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1. ACTION - PLEADINGS: Effect of failure to plead facts and lead evidence insupport of claim"Now, it is clear that cases in the High Courts, and especially the High Court ofOgun State are heard on pleadings. It is thus the pleadings of the parties thatdefine the respective cases presented by the parties. Those pleadings areclearly stated in the Statement of Claim, for the Plaintiff and Statement ofDefence for the Defendant. It is therefore clear that any evidence on facts thatare not pleaded would go to no issue. In the same vein, any decision of theCourt based on facts that have not been pleaded cannot stand. See Ugbodumev. Abiegbe (1991) 8 NWLR (pt.209) p.261; Ejindu v. Obi (1997) 1 NWLR (pt.483)p.505 and Chief Ayoola Adeosun v. The Governor of Ekiti State (2012) LPELR -7843 (SC). Thus, in the case of Nwokorobia v. Nwogu (2009) 10 NWLR (pt.1150)p.553, the Supreme Court, per Mukhtar, JSC (as he then was) said:"It is settled law that litigation is fought on pleadings of the parties, as it formsthe foundation from which it is developed and tackled to the stage of judgment.It is pleadings that form the basis of the plank of a case and the evidence thatis adduced in support therefore. Hence the fulcrum of a case is derived fromthe pleadings and its success depends thereon, for pleadings that are bereft ofthe facts needed to prove a case, cannot be proved by evidence no matter howcogent. i.e. parties are bound by their pleadings."?It therefore means that in an action heard on pleadings, the averments in thepleadings serve the purpose of spelling out with certainty and some exactitudethe case each party intends to present at the trial in prove of his case.Accordingly the evidence adduced at the trial must accord with the factsaverred in the pleadings, and any evidence adduced at the trial which cannotbe traced to the pleadings will go to no issue and any decision of the Courtbased on such evidence cannot be allowed to stand. In the same vein anyaverment in the pleading which is not supported by the evidence will bedeemed abandoned. See Adeyeri v. Okobi (1997) LPELR - 8055 (SC); Arjay Ltdv. A. M. S. Ltd (2003) 7 NWLR (pt. 820) p. 577; Christiana I. Yare v. NationalSalaries, Wages and Income Commission (2013) LPELR - 20520 (SC) andAdeleke v. Iyanda (2001) 13 NWLR (pt. 729) p. 1. Thus, in the case of Olaniyi v.Elero (2007) 8 NWLR (pt.1037) p.517, this Court, per Okoro, JCA (as he thenwas) said:"It is a well settled principle of law that evidence which is not founded on anyfact pleaded goes to no issue. Whatever evidence is led at the trial to support afact not pleaded lacks a foundation to rest upon and as such cannot escapeimminent collapse. In the instant case, the Appellant having failed to plead theexact words alleged to be libelous, there was nothing to lead evidence on, andwhere as in this case evidence was led, the trial Judge was bound to disregardsuch evidence as he did. The evidence lacked a launching pad and wasworthless..."Per TSAMMANI, J.C.A. (Pp. 10-12, Paras. C-F) - read in context

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2. ACTION - CAUSE(S) OF ACTION: How the Court determines reasonable causeof action"It is the law that it is the Plaintiff's claim that determines the nature of thecause of action. The Court will determine this from the Writ of Summons andStatement of Claim. In other words, it is the totality of the facts pleaded in thestatement of Claim that determines the cause of action in any particular case.See Oloba v. Akereja (1988) 3 NWLR (pt.84) p.508; Omomeji v. Kolawale (2008)14 NWLR (pt.1106) p.180 at 205; Nissan (Nig.) Ltd v. Yaganathan (2010) 4NWLR (pt.1183) p.149 at 154 and Nokia West Africa (Nigeria) Limited v. Mr.Williams Orioha (A.K.A. 2 Shotz) (2016) LPELR - 40189 (CA) per Augie, JCA (ashe then was)."Per TSAMMANI, J.C.A. (P. 30, Paras. A-D) - read in context

3. DAMAGES - MEASURE OF DAMAGES: Measure of damages in an action forconversion"Now, the law is that in an action or claim of damages for conversion, the lawpermits award of damages based on the principle of restitution of the injuredparty. However in a claim of damages for conversion, the measure of damagesis generally the value of the chattel or goods at the time of the conversiontogether with any consequential damages flowing from the conversion.SeeC.D.C. (Nig.) v. SCOA (Nig) Ltd (2007) 25 C. p.198 at 1999 and Ordia v.Piedmant (Nig.) Ltd (1995) 2 NWLR (pt.379) p.516. The redress the Plaintiff isentitled to is a return of the chattel or goods to the Plaintiff (owner) or thepayment of the equivalent value of the goods converted. In other words in aclaim for conversion, only the value of the goods as at the date of conversionmay be awarded. Though special damages may be claimed and awarded, but itdoes not include a claim for loss of earnings after the date of conversion. SeeOjini v. Ogo Oluwa Motors (Nig.) Ltd (supra); U.B.A. Plc v. Ogunsanya (2003) 8NWLR (pt.821) p. 111; Stitch v. A.G; Federation (1986) NWLR (pt.46) p.1007and Odejide v. Fagbo (2004) 8 NWLR (pt.874) p.1. In the case of Mrs. BettyDarego v. A. G. Leventis Nigeria Limited & Ors (2015) LPELR - 25009 (CA), mylearned brother Nimpar, JCA said:"I agree that the award of damages generally is based on the principle ofrestitution for the injured party. It is broadly a monetary compensation. Ihowever disagree with the learned counsel for the Appellant that damages inan act for tort of conversion is awarded as at the date of judgment... Inconversion damages is given as at the day of conversion, a single sum, usuallythe value of the item at date of conversion and damages for its detention. Theargument of awarding damages for the period of litigation is inconsistent withthe principles of award of damages in cases of conversion. See the case ofC.D.C. (NIG) v. SCOA (Nig) Ltd (2007) 2 S.C. 198 at 199 where the Court heldthus:"The measure for damages for conversion generally is the value of chattel atthe time of conversion together with any consequential damages flowing fromthe conversion."Per TSAMMANI, J.C.A. (Pp. 37-39, Paras. E-D) - read in context

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4. EVIDENCE - EVALUATION OF EVIDENCE: When an Appellate Court canevaluate evidence"It is the law that where the trial Court shirked its primary duty of evaluatingthe evidence adduced by the parties or fails to consider the case before it, thisCourt will be in as good position as the trial Court to do so. In other words, sincean appeal is a continuation of the matter brought before the trial Court, thisCourt is empowered by Section 15 of the Court of Appeal Act, 2004 to:"... have full jurisdiction over the whole proceedings, as if the proceedings hadbeen instituted in the Court of Appeal as Court of first instance and may re-hearthe case in whole or in part or may remit it to the Court below for the purposeof such re-hearing..."By Section 15 of the Court of Appeal Act (supra) therefore, this Court has widepowers over the proceedings subject of the appeal. It therefore clothes thisCourt with full jurisdiction on the matter, so as to do what the lower Court orCourt of first instance had jurisdiction to do in the proceedings but did not orfailed to. In other words, this Court has full jurisdiction as the Court of firstinstance or trial Court to do what that Court had the jurisdiction to do in theproceedings from which the appeal emanated. Such power includes rehearingthe matter. See Usman v. Kaduna State House of Asembly & Ors (2001) 11NWLR (pt.1044) p.148; Ezeigwe v. Nwalulu (2010) 10 NWLR (pt.1183) p.159;Inakoju v. Adeleke (2007) 4 NWLR (pt.1025) p.423; Amaechi v. INEC (2008) 5NWLR (pt.1080) p.227 and Agbakoba v. INEC (2008) 18 NWLR (pt.1119) p.489.However, for the Court of Appeal to resort to Section 15 of the Court of AppealAct (supra), the following conditions must be satisfied:(a) The trial Court must have the legal power to adjudicate in the matter beforeit,(b) The real issue raised by the claim of the Plaintiff at the trial Court must becapable of being distilled from the Grounds of Appeal;(c) All the necessary materials must be available to the Court of Appeal forconsideration;(d) The need for expeditious disposal of the suit will meet the ends of justicewhich must be apparent on the face of the materials before the Court; and(e) That injustice will be occasioned thereby if the suit is remitted to the trialCourt.In the instant case, the suit was instituted in the trial Court on the 12th day ofOctober, 2005 which is about 12 years now. Judgment was delivered in July,2009. The justice of the case will therefore be further delayed especially whenthere is the likelihood of an appeal being filed from the decision of the trialCourt again, if the matter is remitted to the trial Court for a rehearing. It is clearfrom the processes on record that the trial Court had the jurisdiction to hear thesuit leading to this appeal and there are sufficient materials, both oral anddocumentary, on the record for the consideration of this Court. In thecircumstances, it is my view that it is proper in the circumstances to exercisethe powers granted to this Court by Section 15 of the Court of Appeal Act, 2004.See also Obi v. INEC (2007) 11 NWLR (pt.1046) p.565; F.C.D.A. v. Koripamo-Agary (2010) 14 NWLR (pt.1213) p.365 at 394 and A.G; Anambra State v.Okeke (2002) 5 S.C.N.J. p.3318."Per TSAMMANI, J.C.A. (Pp. 25-27, Paras. A-E) -read in context

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5. TORT - CONVERSION: Nature of claim in conversion"Now, the tort of conversion is an act of willful interference, without lawfuljustification, with any chattel or goods in a manner inconsistent with the right ofanother who is the true owner, and whereby that other is deprived of the useand possession of that chattel or good. The tort of conversion is thereforecommitted when the Defendant, without lawful justification, takes a chattel orgood out of the possession of the Plaintiff, with the intention of exercisingpermanent or temporary dominion over such chattel or good. The cause ofaction in conversion therefore immediately arises where the Defendant willfullyand without justification takes chattel or good out of the possession of thePlaintiff, with the intention of depriving either permanently or temporarily, thePlaintiff of the use and enjoyment of that chattel or goods. Thus, in the case ofOjini v. Ogo Oluwa Motors (Nig.) Ltd (1998) 1 NWLR (pt.534) p.353 at 363,Belgore, JSC (as he then was) said:"When a person, by deliberate act, deals with the chattels of another in amanner inconsistent with that other's right whereby he is deprived of the useand possession thereof, the tort of conversion is committed. To be liable forconversion, the Defendant not intend to question or deny the Plaintiff's rightbut it is enough that his conduct on the chattel is inconsistent with thePlaintiff's rights."?It is therefore obvious that ownership forms the Kernel of the tort ofconversion, and therefore, a Plaintiff who cannot prove ownership cannotsucceed in a claim in an action for conversion. See Owena Bank (Nig.) Ltd v.N.S.C.C. Ltd (1993) 4 NWLR (pt. 290) p. 698; Boniface Anyika Co. v. Uzor (2006)15 NWLR (pt.1003) p. 560; Seven Up Bottling Co. Ltd v. Abiola & Sons Co. Ltd(2001) FWLR (pt.70) p.1611; C.O.P. v. Oguntayo (1993) 6 NWLR (pt. 299) p.259; Omidiora v. Ademiluyi (1997) 6 NWLR (pt. 508) p.294 and H. S. Engr. Ltdv. S. A. Yakubu (Nig.) Ltd (2009) 10 NWLR (pt.1149) p.416. See also Ihenacho v.Uzochukwu (1997) 2 NWLR (pt.487) P.257.In the case of Boniface Anyika & Co. (Nig.) Ltd v. Uzor (supra), the SupremeCourt held that for the Plaintiff to succeed in an action for conversion, thefollowing ingredients must be disclosed by credible evidence:(a) That the Plaintiff is the owner of the goods.(b) That the goods do not belong to the Defendant.(c) That the goods were taken out of the possession of the owner, who is thePlaintiff, without lawful justification.(d) That the Defendant had the intention of exercising permanent or temporarydominion over the goods.?(e) That the Plaintiff made specific demand for the goods; and(f) That the demand was followed by an unequivocal act of refusal by theDefendant to surrender the goods to the Plaintiff."Per TSAMMANI, J.C.A. (Pp.30-33, Paras. E-A) - 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, Agbara Judicial Division,

delivered by A. A. Akinyemi, J on the 27th July, 2009 in Suit

No. HCT/334/2005.

By a specially endorsed Writ of Summons and Statement of

Claim dated and filed on the 12/10/2005, the Appellant who

was the Plaintiff sought the following reliefs:

(i) N780,577.50 (Seven Hundred and Eighty Thousand, Five

Hundred and Seventy-Seven Naira, Fifty Kobo) per month

from November 2001 till the date of judgment being

monthly loss of earnings.

(ii) Interest at 18% on N780,577.50 (Seven Hundred and

Eighty Thousand, Five Hundred and Seventy-Seven Naira

Fifty Kobo) monthly from November, 2011 till the date of

judgment.

(iii) The immediate release of 750 (Seven hundred and

Fifty) cartons of Vitamalt with the liquid contents, cartons

and bottles inclusive.

OR

The payment of the money equivalent of 750 cartons of

Vitamalt with the liquid contents (cartons and bottles

inclusive) at the market value of the products on the date of

judgment.

The Respondent as Defendant filed a

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Statement of Defence which was subsequently amended

and filed on the 16/1/07 pursuant to the order of the trial

Court made on the 10/1/2007.

The Plaintiff/Appellant’s case before the trial Court is that,

he used to be a staff of the Respondent before he was

appointed a distributor for the Eastern part of Nigeria

based in Onitsha in 1999. That by the business, he used to

pay cash and also supply empty bottles to the company who

would then load his vehicle with the required supplies. That

he used to provide his own vehicle for transporting the

empty bottles from Onitsha to Agbara and transporting the

supplies from Agbara to Onitsha. The Appellant also stated

that he used to provide 750 cartons to the Respondent for

each trip on a regular basis, averaging 2,615 cartons per

month. That in the year 2000, he lost his vehicle and all the

750 cartons in an accident at Ijebu-Ode involving students

of Tai Solarin College of Education who burnt same. That

due to the incident, he was unable to do business for eight

(8) months. That he was however able to borrow money

from friends and colleagues in July, 2000 which enabled

him to buy 750 new empty cartons of

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Vitamalt bottles which then enabled him to recommence

business with the Respondent.

The Appellant further stated that in November, 2001 he

paid money for the liquid contents of 750 cartons and then

loaded his lorry from Onitsha to Agbara, and that the

Respondent issued him with a packaging voucher as

evidence that the empties were received. That in the

instant case, his vehicle was not loaded due to delays by

the Respondent’s factory. That the vehicle that brought his

empty bottles from Onitsha could not wait due to the delay

so he had to make an alternative arrangement. That he

finally got a lorry that accepted to convey the 750 cartons

to Onitsha but the driver of the lorry parked at Ijanikin

outside the factory, so he had to get another lorry and was

able to carry the goods from the factory to Ijanikin where

the other lorry was parked. That at Ijanikin, the lorry had

developed a fault so he had to look for a secure place to

keep his goods pending the repair of the vehicle. That he

met a fellow distributor at Ijanikin who provided him with a

space to park his goods. That he returned the following

morning to carry his goods only to discover that

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the Respondent had carted away the goods back to the

factory on the explanation that they (company) suspected

that he planned to sell the goods in Lagos. That he wrote

several letters to the Respondent personally and through

counsel for the return of the goods to no avail.

The Respondent who testified through D.W.1 confirmed

that the Appellant was one of her distributors based in

Onitsha. That in the year 2001, the Appellant applied for

empty bottles (empties), and thus paid for 750 crates or

cartons of Vitamalt. That the Appellant came with a truck

for collection and it was loaded with 750 crates of the drink

to be sold at Onitsha. That two hours later, the said truck

returned to the factory empty, thus raising suspicion as to

whether indeed it had made the trip to Onitsha. That the

company management was informed and upon

investigation it was found that the goods were discharged

at Ijanikin in the shop of one of the company’s distributors.

That in the circumstances, the management decided to

repossess the goods as it was meant for Onitsha and not

Ijanikin, which was a breach of company policy. That the

company was ready to release the goods to the

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Appellant and even promised to convey same to Onitsha but

the Appellant refused. That the company then refunded him

the balance of the value of the goods through his lawyer

after deducting the sum of N275,000.00 being the balance

of the empty cartons loaned to him.

At the trial, the Appellant testified for himself and tendered

several documents which were admitted in evidence. He

did not call any other witness. The Respondent also

presented its case through one witness (D.W.1) and

tendered some documents which were admitted in

evidence. At the close of evidence, respective counsel filed

and served Written Addresses and in a judgment delivered

on the 27/7/2009, the trial Court dismissed the

Plaintiff/Appellant’s case. The Appellant is not satisfied

with that decision and has now filed this appeal.

The Notice of Appeal which is at pages 67 – 73 of the

Record of Appeal was dated and filed on the 26/10/2009. It

consists of seven (7) Grounds of Appeal. The Appellant

complied with the Rules of this Court by filing an

Appellant’s Brief of Arguments. Despite being served, the

Respondent did not file any Brief of Arguments.

Consequently, on

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the 19/01/2017 this appeal was set down for hearing on the

Appellant’s Brief of Arguments alone, vide Motion on

Notice dated the 21/12/16 and filed on the 9/1/17.

The Appellant’s Brief of Arguments was dated and filed on

the 26/01/2010. Therein, four issues were distilled for

determination as follows:

1. Whether the learned lower Court Judge was right in

holding that it was the case of the Appellant that his goods

were wrongly re-possessed by the respondent who was

under the mistaken belief that he intended to sell them in

Lagos, contrary to the dealership agreement.

[Ground 1].

2. Whether the learned trial Judge did not depart from the

parties case in holding that the Appellant did not deny

receipt of N311,500.00k paid by the Respondent vide

Exhibit K. [Ground 2].

3. Whether the learned trial Judge was right in holding that

there was no evidence on record as to whether or not the

Appellant or his counsel accepted the sum of N311,500.00

paid vide Exhibit K as full and final settlement of his claim.

[Grounds 3 and 4].

4. Whether the learned trial Judge was right in failing to

consider the issues of

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the entitlement of the Appellant to his claims having regard

to the proof of by evidence on pleadings of the wrongful

seizure, detention and conversion of his goods by the

Respondent.

[Grounds 5, 6 and 7].

As stated earlier, the Respondent did not file any Brief of

arguments and this appeal was thus heard on the

Appellant’s Brief of Arguments alone, pursuant to order of

this Court made on the 19/1/2017. Having studied the

issues formulated by the Appellants, I propose to determine

issues 1 and 4 together while issues 2 and 3 shall also be

determined together. I begin by considering issues 2 and 3.

On issues 2 and 3, learned counsel for the Appellant

contended that the issue of payment of the sum of

N311,500.00k vide Exhibit K by the Respondent and the

receipt thereof by the Appellant was not joined by the

parties considering that the Appellant had admitted receipt

of same. The case of A.T.M. Plc v. B.V.T. Ltd (2007) 1

NWLR (pt.1015) p.259 at 282 Paragraphs F – H was

cited to submit that, in the circumstances, it was not

necessary for the Appellant to amend his Statement of

Claim before he could admit receipt of the money. That

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having admitted receipt of the money and the Respondent

not having pleaded nor led evidence that the Appellant

accepted same in full and final settlement, the issue of

receipt of the money was merely an academic issue and

therefore, the learned trial Judge erred in holding that the

Appellant did not cross-examine thereon or deny receipt of

the money especially when the Appellant did not deny

receipt of the money. The cases of Olagunju v. Adesoye

(2009) 9 NWLR (pt.1146) p.265 Paragraphs F – G and

Yusuf v. Adeyemi (2009) 15 NWLR (pt.1165) p.606 at

631 Paragraph D were cited in support. Learned Counsel

then submitted that, the decision of the trial Court is

tantamount to departing from the case of the Appellant,

which led to the trial court arriving at an erroneous

conclusion and decision.

On issue three (3), learned counsel for the Appellant

contended that, from the pleadings and evidence led by the

parties, it is clear that there was no dispute nor issues were

joined on the following facts:

(a) That the Respondent offered the sum of N311,500.00 to

the Appellant would accept in full and final settlement of

his claim.

(b) That the offer

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made vide Exhibit K was routed through learned counsel

for the Appellant.

(c) That on the 10/1/07, learned counsel for the Appellant

informed the Court in the presence of the Respondent and

her counsel that his instruction was to accept the said sum

as part-payment; and that same was recorded in page 52 of

the Record of Appeal.

(d) That the response of learned counsel for the

Respondent was recorded by the learned trial Judge at

page 53 of the Record of Appeal.

(e) That at page 53 of the Records, the learned trial Judge

directed that the matter should proceed, whereof the

Appellant was cross-examined and he did confirm at page

58 of the Record of Appeal that he only accepted the sum

as part-payment.

Learned Counsel for the Appellant then contended that, it

is therefore curious when the learned trial Judge proceeded

to hold that, there is no evidence that the Appellant or his

counsel rejected or accepted such payment conditionally or

otherwise than in full and final settlement of his claim in

this suit. That, if the learned trial Judge had made careful

and proper use of his record, he would have recognized

that the payment and

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receipt of the money for the purpose it was received was no

longer in issue, the Appellant having stated that he

accepted the money as part-payment of his claim. The case

of Nzekwu v. Nzekwu (1989) 2 NWLR (pt.503) p.31

was then cited to submit that the learned trial Judge shut

his eyes from the obvious and thereby came to a perverse

conclusion. We were then urged to hold that, the learned

Judge was in error and to set aside his findings and

conclusions on the issue of the payment of N311,500.00.

Now, it is clear that cases in the High Courts, and

especially the High Court of Ogun State are heard on

pleadings. It is thus the pleadings of the parties that define

the respective cases presented by the parties. Those

pleadings are clearly stated in the Statement of Claim, for

the Plaintiff and Statement of Defence for the Defendant. It

is therefore clear that any evidence on facts that are not

pleaded would go to no issue. In the same vein, any

decision of the Court based on facts that have not been

pleaded cannot stand. See Ugbodume v. Abiegbe (1991)

8 NWLR (pt.209) p.261; Ejindu v. Obi (1997) 1 NWLR

(pt.483) p.505 and Chief Ayoola Adeosun v. The

Governor of

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Ekiti State (2012) LPELR – 7843 (SC). Thus, in the case

of Nwokorobia v. Nwogu (2009) 10 NWLR (pt.1150)

p.553, the Supreme Court, per Mukhtar, JSC (as he then

was) said:

“It is settled law that litigation is fought on pleadings of the

parties, as it forms the foundation from which it is

developed and tackled to the stage of judgment. It is

pleadings that form the basis of the plank of a case and the

evidence that is adduced in support therefore. Hence the

fulcrum of a case is derived from the pleadings and its

success depends thereon, for pleadings that are bereft of

the facts needed to prove a case, cannot be proved by

evidence no matter how cogent. i.e. parties are bound by

their pleadings.”

It therefore means that in an action heard on pleadings, the

averments in the pleadings serve the purpose of spelling

out with certainty and some exactitude the case each party

intends to present at the trial in prove of his case.

Accordingly the evidence adduced at the trial must accord

with the facts averred in the pleadings, and any evidence

adduced at the trial which cannot be traced to the

pleadings will go to no issue and any decision

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of the Court based on such evidence cannot be allowed to

stand. In the same vein any averment in the pleading which

is not supported by the evidence will be deemed

abandoned. See Adeyeri v. Okobi (1997) LPELR – 8055

(SC); Arjay Ltd v. A. M. S. Ltd (2003) 7 NWLR (pt.

820) p. 577; Christiana I. Yare v. National Salaries,

Wages and Income Commission (2013) LPELR –

20520 (SC) and Adeleke v. Iyanda (2001) 13 NWLR

(pt. 729) p. 1. Thus, in the case of Olaniyi v. Elero

(2007) 8 NWLR (pt.1037) p.517, this Court, per Okoro,

JCA (as he then was) said:

“It is a well settled principle of law that evidence which is

not founded on any fact pleaded goes to no issue. Whatever

evidence is led at the trial to support a fact not pleaded

lacks a foundation to rest upon and as such cannot escape

imminent collapse. In the instant case, the Appellant having

failed to plead the exact words alleged to be libelous, there

was nothing to lead evidence on, and where as in this case

evidence was led, the trial Judge was bound to disregard

such evidence as he did. The evidence lacked a launching

pad and was worthless…”

In the instant case, going by the

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Record of Appeal, and especially the judgment of the trial

Court, it is obvious that the learned trial Judge rested his

decision on the alleged payment by the Respondent to the

Appellant of the sum of N311,500.00 as full and final

settlement of the Appellant’s Claim. This can be seen

clearly in the judgment of the trial Court at pages 64 – 66

of the Record of Appeal, wherein the learned trial Judge

found and held as follows:

“There is no evidence before me that the Plaintiff or his

counsel rejected this payment, or accepted it conditionally

or otherwise than in full and final settlement for the

Plaintiff’s Claim in this suit.

The evidence for the Defendant that following Exhibit “K”

the said sum of N311,500.00 was paid to the Plaintiff

through his counsel, was not denied, challenged or

contradicted in any way. It is trite law that unchallenged

evidence, if credible shall be accepted as true, and acted

upon by the Court. Rather than being challenged, there is

in fact a clear indication Albert (sic: albeit) in learned

Plaintiff counsel address that the said sum of N311,500.00

was paid and receipted by the Plaintiff,

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through his counsel. At Paragraph 6.06 on the last page of

his filed Written Address, learned counsel submitted this

(sic):

“On relief iii the Defendant is still detaining the goods of

the Claimant here having admitted that the said goods

belong to the Claimant, he is thus entitled to release of

same but the Claimant’s prayer is alternative which is for

the payment of the value of 750 cartons of Vitamalt with

the legend (sic) contents and bottles for which the Claimant

gave evidence but now less the sum of N311,500.00 by the

Defendant at the close of evidence. The Defendant having

not filed any Counter-Claim or set off.”

From this submission, coupled with the fact that there was

no reply to Paragraph 3(i) on the Amended Statement of

Defence, and that the evidence of the defendant on the

point was also not challenged or contradicted, I find and

hold as a fact that the Defendant did pay and the Plaintiff

did accept the sum of N311,500.00 in settlement of the

claims in this suit all sent in the course of trial.

Exhibit “K” stated that the payment was to be in full and

final settlement of the Plaintiff’s claims in

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this suit. The Plaintiff and or his lawyer did not wrote back

(sic), at least there is no evidence before me that they did)

to contest this statement, neither did they file any amended

reply to deny that the payment was not in full and final

settlement. In the light of this, I find and hold that the said

payment of N311,500.00 made by the Defendant to the

Plaintiff, was made adequate in full and final settlement of

the entire claims of the Plaintiff in this case… In view of

this development, I consider it a needless academic

exercise addressing the other issue raised by the two

learned counsel in their respective Written Addresses.”

The learned trial Judge arrived at this decision after giving

a summary of the case presented by the parties. He then

came to the conclusion as reproduced above, after

considering the pleading of the Respondent in Paragraph

3(i) of the Amended Statement of Defence filed on the

16/1/2007. It was pleaded therein as follows:

“3(i). After this suit was instituted, Defendant recomputed

Plaintiff’s net entitlement to be N311,500.00 (three

hundred and eleven thousand, five hundred naira) which it

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offered to Plaintiff and has since remitted to his counsel by

letter dated 5th January, 2007. The said sum was arrived at

after deducting Plaintiff’s debts of N275,000 and “I.O.U” of

N10,000.00 taken on 7th December, 2001 from the credit

representing the value of the liquid content and empties

repossessed as aforesaid.”

The Respondent further pleaded in Paragraph 4(c) of the

Amended Statement of Defence that:

“It had already paid to Plaintiff, the sum of N311,500.00

(Three Hundred and Eleven Thousand, Five Hundred

Naira) representing Plaintiff’s net entitlement.”

It is my view that by the above stated pleadings, it is the

case of the Respondent that after going through her

records, it came to the conclusion that the outstanding

entitlement of the Appellant with her was N311,500.00

only. That it had paid the said sum of N311,500.00 to the

Respondent. Indeed going by the records, especially at

pages 52, 53, 58 and 60 thereof there is no dispute on the

fact that the Appellant offered the sum of N311,500.00 to

the Respondent. Though learned counsel for the

Respondent admitted or acknowledged receipt of

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that sum, he denied that it was accepted as full and final

settlement of the Appellant’s Claim. The Appellant himself

said so when he was re-examined at page 58 of the records.

Going by the pleadings at Paragraphs 3(i) and 4(c) of the

Amended Statement of Defence, it was never pleaded that

the Appellant had accepted the sum of N311,500.00 as full

and final payment or settlement of his claims against the

Respondent. The pleadings and the evidence on record do

not support the findings and conclusion of the trial Court

that the Appellant had accepted the said sum of

N311,500.00 as full and final settlement of his claims

against the Respondent.

Indeed, Exhibit “K” relied upon by the learned trial Judge,

and dated the 06/11/2006 was written before the Amended

Statement of Defence was filed on the 16/01/2007. Though

the Appellant did not write the Respondent in response to

the said Exhibit “K”, at the proceedings of the trial Court

on the 10/01/2007, Chief Fasae of learned counsel for the

Appellant informed the Court, in the presence of the

Respondent’s counsel as follows:

“We have received letters and 2 cheques

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from counsel to the Defendants for our clients, but we are

prepared to accept the payments only as part payment and

not full payment of our entitlement, otherwise we wish to

continue with the case.”

Mr. Kunle Carew of learned counsel for the Respondent

then responded as follows:

“I confirm settling those cheques, which we came about

after a re-computation of the accounts. However, as far as

we are concerned it is full and final payment, if they don’t

accept it as such, then we are also ready to proceed with

the case.”

It was obvious to the Court therefore that the parties were

unable to settle or agree on the payment of the sum of

N311,500.00 made by the Respondent to the Appellant. On

that score, the learned trial Judge directed that the matter

proceeds. It is therefore puzzling that the learned trial

Judge instead of resolving the issue in his judgment lazily

came to the conclusion that the Appellant had accepted the

sum of N311,500.00 as full and final settlement of his

claims against the Respondent. This finding is certainly

against the evidence on record and therefore perverse. It is

hereby set aside. Issues 2 and

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3 are therefore resolved in favour of the Appellant.

Now, arguing on issue one (1), learned counsel for the

Appellant cited the case of Chime v. Ezea (2009) 2

NWLR (pt.1125) p.263 at pp.358 Paragraphs E – G

and 373 Paragraphs B – C to contend that the primary

duty of a trial Court is to properly understand and appraise

the case presented by the parties so as to do even justice.

That, the Appellant’s case before the trial Court was that,

having paid for the goods ownership (title) and possession

in the goods had passed to him. That the learned trial Judge

misunderstood the Appellant’s case and thereby

misdirected himself going by the totality of the pleadings

and evidence before the Court. Learned Counsel then

submitted that it was never the case of the Appellant that

his goods were re-possessed by the Respondent, and that

the importation of the word “re-possessed” by the learned

trial Judge occasioned injustice to the Appellant. That the

misdirection on the facts of the Appellant’s case led to the

subsequent findings and conclusions of the learned trial

Judge and thus prevented him from considering the

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Appellant’s claim for loss of earnings. The case of Onu v.

Idu (2006) 12 NWLR (pt.995) p.657 at 686

Paragraphs C – F was then cited to submit that, the

findings of the trial Court having not been borne by the

pleadings and evidence is perverse.

On issue four (4), learned counsel for the Appellant

submitted that the only issues joined by the parties were on

whether the seizure and conversion of the Appellant’s

goods was justified; and whether the Appellant is entitled

to claims for loss of earnings and/or restitution for his

seized and converted goods. The case of Chime v. Ezea

(2009) 2 NWLR (pt.1125) p.263 at 383 was cited to

submit that, the learned trial Judge abandoned the

substance of the Appellant’s claim to embark on the

unsolicited endeavor of considering the issue of whether or

not the Appellant accepted the money paid as full and final

settlement of his claims. It was then submitted that, this

Court has the power to evaluate the pleadings and evidence

adduced in order to resolve the dispute between the

parties, since it is the law that this Court has the power to

do what the trial Court failed to do in the discharge of its

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primary duty.

Learned Counsel for the Appellant then urged us to

evaluate the evidence adduced by the parties and to resolve

the issue of the Appellant’s claims against the Respondent.

It was thus submitted that, the Appellant’s claim is

predicated on trespass to his property, detention and

conversion of same by the Respondent. The cases of

Anuruba v. E.C.B. Ltd (2005) 10 NWLR (pt.933) p.321

at 341 – 342 Paragraphs F – A; M.I.N. Ltd v.

M.F.K.W.A. Ltd (2005) 10 NWLR (pt.934) p.645 at 667

– 668 and Boniface Anyika & Co. (Nig.) Ltd v. Uzor

(2006) 15 NWLR (pt.1003) p.575 – 576 Paragraphs F –

A were then cited to submit that, all the Appellant was

required to proof are:

(a) Ownership and possession of the goods;

( b ) T h e i n t e r f e r e n c e w i t h s a m e b y t h e

Defendant/Respondent;

(c) Lack of lawful justification for such interference or

consent of the Plaintiff; and

(d) That the Plaintiff actually demanded for the release of

the goods but the Defendant failed, refused or neglected to

release the goods on demand.

Learned Counsel went on submit that, the Appellant

pleaded and proved

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ownership of the 750 cartons of Vitamalt purchased from

the Respondent. That the Respondent had in fact admitted

ownership of the goods by the Appellant. That the

Appellant also pleaded and led evidence that he made

several demands for the release of the seized goods but the

Respondent refused to comply. It also submitted that the

evidence led by the Appellant was never controverted nor

discredited under Cross-Examination. We were accordingly

urged to hold that the Appellant proved ownership of the

goods, the acts of trespass and conversion, the demands for

the release of the goods and the refusal of the Respondent

to comply with the demand. We were also urged to hold

that the action of the Respondent was without justification

either in law, oral agreement of the parties or other

custom, usage or policy of the business or trade.

Furthermore, that non of the document tendered by the

Respondent show that the Respondent had such power to

interfere with the goods purchased and paid for by its

customers, nor was any of the Respondent’s numerous

distributors called to testify on such custom or policy of the

trade or business. That, in fact Exhibit

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“C” written by the Respondent only gave power to the

Respondent to “black list” any distributor’s action in breach

of the company’s pricing policy. The case of S.P.D.C. Nig.

v. Okonedo (2008) 17 NWLR (pt.1117) p.484 at 519

was then cited in urging us to hold that the Respondent

indeed interfered with the Appellant’s good without

justification.

On the issue of loss of earnings, learned counsel for the

Appellant contended the Appellant had pleaded in

Paragraphs 5, 6 and 7 of the Statement of Claim that before

the incident complained of in 2001, he was selling an

average of 2,615 cartons of malt drinks monthly at an

average of N298.50 per month, and thus earning a profit of

N780,577.50 per month. That the Appellant testified at the

trial and tendered the statements of account issued to him

by the Respondent and tendered in evidence as Exhibits

“H” and “H1”. Learned Counsel then cited the cases X.S.

(Nig.) Ltd v. Taisei (W.A.) Nig. Plc (2006) 15 NWLR

(pt.1003) p.533 at 552 and Unipetrol (Nig.) Plc v.

Adireje (W.A.) Ltd (2005) 14 NWLR (pt.946) p.563 at

625 were then cited to submit that the

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Appellant was able to prove that he was denied his monthly

earning from 2001 till the 27/07/2009 (the date of

judgment).

Learned Counsel for the Appellant also submitted that, the

Appellant led evidence to show his entitlement to interest

of 18% per month on the earning of N780,577.50 from

November, 2001 till the date of judgment. Claim three (3)

was in the alternative to the claim for loss of earning, and

will be considered only if the claim for loss of earnings fail

or cannot be awarded in the circumstances of the case.

From the judgment of the trial Court at pages 62 – 66 of the

Record of Appeal, it is clear that the learned trial Judge

failed woefully to consider the Appellant’s claim. In other

words, the learned trial Judge did not evaluate the oral and

documentary evidence adduced at the trial in proof of the

Appellant’s Claims. He merely rested his decision on the

fact that the Respondent had paid to the Appellant and

which the Appellant had received, the sum of N311,500.00

as full and final payment or settlement of his claims. It has

been found in the course of this judgment that the learned

trial Judge erred in so holding.

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It is the law that where the trial Court shirked its primary

duty of evaluating the evidence adduced by the parties or

fails to consider the case before it, this Court will be in as

good position as the trial Court to do so. In other words,

since an appeal is a continuation of the matter brought

before the trial Court, this Court is empowered by Section

15 of the Court of Appeal Act, 2004 to:

“… have full jurisdiction over the whole proceedings, as if

the proceedings had been instituted in the Court of Appeal

as Court of first instance and may re-hear the case in whole

or in part or may remit it to the Court below for the

purpose of such re-hearing…”

By Section 15 of the Court of Appeal Act (supra) therefore,

this Court has wide powers over the proceedings subject of

the appeal. It therefore clothes this Court with full

jurisdiction on the matter, so as to do what the lower Court

or Court of first instance had jurisdiction to do in the

proceedings but did not or failed to. In other words, this

Court has full jurisdiction as the Court of first instance or

trial Court to do what that Court had the jurisdiction to do

in the

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proceedings from which the appeal emanated. Such power

includes rehearing the matter. See Usman v. Kaduna

State House of Asembly & Ors (2001) 11 NWLR

(pt.1044) p.148; Ezeigwe v. Nwalulu (2010) 10 NWLR

(pt.1183) p.159; Inakoju v. Adeleke (2007) 4 NWLR

(pt.1025) p.423; Amaechi v. INEC (2008) 5 NWLR

(pt.1080) p.227 and Agbakoba v. INEC (2008) 18

NWLR (pt.1119) p.489. However, for the Court of Appeal

to resort to Section 15 of the Court of Appeal Act (supra),

the following conditions must be satisfied:

(a) The trial Court must have the legal power to adjudicate

in the matter before it,

(b) The real issue raised by the claim of the Plaintiff at the

trial Court must be capable of being distilled from the

Grounds of Appeal;

(c) All the necessary materials must be available to the

Court of Appeal for consideration;

(d) The need for expeditious disposal of the suit will meet

the ends of justice which must be apparent on the face of

the materials before the Court; and

(e) That injustice will be occasioned thereby if the suit is

remitted to the trial Court.

In the instant case, the suit was instituted in the trial Court

on

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the 12th day of October, 2005 which is about 12 years now.

Judgment was delivered in July, 2009. The justice of the

case will therefore be further delayed especially when

there is the likelihood of an appeal being filed from the

decision of the trial Court again, if the matter is remitted to

the trial Court for a rehearing. It is clear from the

processes on record that the trial Court had the jurisdiction

to hear the suit leading to this appeal and there are

sufficient materials, both oral and documentary, on the

record for the consideration of this Court. In the

circumstances, it is my view that it is proper in the

circumstances to exercise the powers granted to this Court

by Section 15 of the Court of Appeal Act, 2004. See also

Obi v. INEC (2007) 11 NWLR (pt.1046) p.565; F.C.D.A.

v. Koripamo-Agary (2010) 14 NWLR (pt.1213) p.365

at 394 and A.G; Anambra State v. Okeke (2002) 5

S.C.N.J. p.318.

I have carefully perused the case as presented by the

Plaintiff/Appellant before the trial Court in both his

pleadings and evidence. Specifically, the Plaintiff/Appellant

had pleaded his case in Paragraphs 11, 12, 13, 14, 15, 16,

17, 18, 19, 20, 21, 22, 23, 24, 25,

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26, 27 and 28 of the Statement of Claim filed on the

12/10/2005. The Appellant testified in support of the

averments at the trial. See pages 47 – 58 of the Record of

Appeal. Specifically, the Appellant testified at page 47 lines

16 – 22 of the Record of Appeal as follows:

“In July, 2001, I borrowed monies from friends and

colleagues and bought 750 new cartons of empty Vitamalt

bottles, and started operating again with the Defendant.

Again it was on average sale of 2,615 cartons monthly. I

have ceased to trade with Defendant because in November,

2001, when I loaded my lorry for Onitsha, I paid money for

the liquid content of 750 cartons of empty bottles, the

company normally issued me with packaging vouchers

indicating that the empties were received.”

The Appellant also testified at pages 48 line 17 – 49 line 9

as follows:

“Upon receipt of my empties and money ordinarily the

Defendant would load my lorry. In this case my vehicle was

not loaded immediately due to delay on the Defendant’s

factory caused by them. The first vehicle that brought the

empties left without loading due to the delay in the

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factory and I had paid the lorry driver to and from freight.

Then I came down from Onisha to Agbara to make

alternative arrangement I got a trailer going that route

which.. accepted to carry my 750 cartons along. The trailer

driver packed at Ijanikin because he did not want to go to

the factory because of their delay. I then got a lorry to

carry the drinks from the factory to where the trailer was

packed at Ijanikin. We then discovered the trailer was

faulty and I looked for a secure place to keep my goods

pending the time the trailer would be repaired because I

had also paid him. I met a co-distributor at Ijanikin who

gave me a space to park my 750 cartons.

On the following day after the vehicle was repaired, we

went to that spot, myself and driver. To my greatest

surprise, I discovered that the Defendant came behind me

to pack the 750 cartons of Vitamalt empties and liquid

content, back to the factory. I went to them to confirm.

They said they suspected that I wanted to sell the goods in

Lagos. I was refused to see the Managing Director. I now

wrote a protest letter to the Managing Director of the

Defendant dated 16/11/06.”

[Underlined by me

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for emphasis].

It is the law that it is the Plaintiff’s claim that determines

the nature of the cause of action. The Court will determine

this from the Writ of Summons and Statement of Claim. In

other words, it is the totality of the facts pleaded in the

statement of Claim that determines the cause of action in

any particular case. See Oloba v. Akereja (1988) 3

NWLR (pt.84) p.508; Omomeji v. Kolawale (2008) 14

NWLR (pt.1106) p.180 at 205; Nissan (Nig.) Ltd v.

Yaganathan (2010) 4 NWLR (pt.1183) p.149 at 154

and Nokia West Africa (Nigeria) Limited v. Mr.

Williams Orioha (A.K.A. 2 Shotz) (2016) LPELR –

40189 (CA) per Augie, JCA (as he then was). Looking at

the totality of the pleadings and evidence adduced in this

case, it is obvious that the Appellant’s Claim was in

damages for conversion.

Now, the tort of conversion is an act of willful interference,

without lawful justification, with any chattel or goods in a

manner inconsistent with the right of another who is the

true owner, and whereby that other is deprived of the use

and possession of that chattel or good. The tort of

conversion is therefore committed when the Defendant,

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without lawful justification, takes a chattel or good out of

the possession of the Plaintiff, with the intention of

exercising permanent or temporary dominion over such

chattel or good. The cause of action in conversion therefore

immediately arises where the Defendant willfully and

without justification takes chattel or good out of the

possession of the Plaintiff, with the intention of depriving

either permanently or temporarily, the Plaintiff of the use

and enjoyment of that chattel or goods. Thus, in the case of

Ojini v. Ogo Oluwa Motors (Nig.) Ltd (1998) 1 NWLR

(pt.534) p.353 at 363, Belgore, JSC (as he then was)

said:

“When a person, by deliberate act, deals with the chattels

of another in a manner inconsistent with that other’s right

whereby he is deprived of the use and possession thereof,

the tort of conversion is committed. To be liable for

conversion, the Defendant not intend to question or deny

the Plaintiff’s right but it is enough that his conduct on the

chattel is inconsistent with the Plaintiff’s rights.”

It is therefore obvious that ownership forms the Kernel of

the tort of conversion, and therefore, a

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Plaintiff who cannot prove ownership cannot succeed in a

claim in an action for conversion. See Owena Bank (Nig.)

Ltd v. N.S.C.C. Ltd (1993) 4 NWLR (pt. 290) p. 698;

Boniface Anyika Co. v. Uzor (2006) 15 NWLR

(pt.1003) p. 560; Seven Up Bottling Co. Ltd v. Abiola

& Sons Co. Ltd (2001) FWLR (pt.70) p.1611; C.O.P. v.

Oguntayo (1993) 6 NWLR (pt. 299) p. 259; Omidiora

v. Ademiluyi (1997) 6 NWLR (pt. 508) p.294 and H. S.

Engr. Ltd v. S. A. Yakubu (Nig.) Ltd (2009) 10 NWLR

(pt.1149) p.416. See also Ihenacho v. Uzochukwu

(1997) 2 NWLR (pt.487) P.257.

In the case of Boniface Anyika & Co. (Nig.) Ltd v. Uzor

(supra), the Supreme Court held that for the Plaintiff to

succeed in an action for conversion, the following

ingredients must be disclosed by credible evidence:

(a) That the Plaintiff is the owner of the goods.

(b) That the goods do not belong to the Defendant.

(c) That the goods were taken out of the possession of the

owner, who is the Plaintiff, without lawful justification.

(d) That the Defendant had the intention of exercising

permanent or temporary dominion over the goods.

(e) That the Plaintiff made specific demand

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for the goods; and

(f) That the demand was followed by an unequivocal act of

refusal by the Defendant to surrender the goods to the

Plaintiff.

In the instant case, all the above stated ingredients were

clearly present in the evidence adduced by the Appellant at

the trial. The evidence discloses that the goods, i.e. 750

cartons of Vitamalt drinks were duly paid for by the

Appellant and receipted. The goods were then loaded in a

truck and taken out of the Respondent’s company for

onward transmission to Onisha and that the truck was

provided by the Appellant. In that respect, it is my view

that the moment the goods were paid for, loaded in the

truck and driven out of the company, title to those goods

had been transferred to the Appellant who then became the

owner of those goods. At the time the goods were in the

shop provided by the Appellant’s co-distributor at Ijanikin

the Appellant was still the owner and in possession of those

goods. At the time therefore, the Respondent had ceased to

be the owner of those goods.

As shown by the portion of the judgment of the trial Court

reproduced and underlined by me, it is clear that the

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Respondent removed or took away the goods from the place

kept by the Appellant, back to the factory in the absence of

the Appellant. The conduct of the Respondent showed

clearly that it had the intention of depriving the Appellant,

even if temporarily, of the use and enjoyment of the goods.

The Appellant made several requests and/or demands on

the Respondent to surrender the goods to him but the

Respondent failed to or refused to do so. Specifically, the

Appellant testified at page 49 lines 14 - 16 of the Records

that, despite demands made by him on the Respondent to

release the goods, the goods were not released. He then

stated at page 49 lines 21 - 23 as follows:

“I then went personally to the management to request the

release of my goods, but they refused to do so. They asked

me to put it in writing. I did by letter dated 22 Nov. 2001.”

See also the demand letters, Exhibits “B”, “D” and “E”

respectively. That despite those letters, the Respondent

refused to surrender the goods to the Appellant. He further

stated at page 50 lines 9 - 12 of the Record of Appeal as

follows:

“Before Exhibit

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“E” I made an oral request for the release. After Exhibit

“E”, I came down from Onitsha to Agbara several times to

request for my goods of all these at my own expenses. Still

they were not released, so I wrote several other letters to

them.”

The letters are evidenced by Exhibits “F and F1”, “F2 and

“G” respectively. It is worthy of note that, the Respondents

did not deny that they took the goods out of the possession

of the Appellant. They did not also contend that the goods

were returned to the Appellant. They however tried to

justify their action when they pleaded in Paragraphs 3(d),

(e) and (f) of the Amended Statement of Defence as follows:

“3(d). On one occasion afterwards while Plaintiff came to

pick goods worth N334,050.00 (three hundred and thirty-

four thousand and fifty naira), Defendant discovered that

the goods, which were meant to be taken to Onitsha in

Anambra State, were actually planned to be sold in the

Lagos area by the Plaintiff;

(e) This action of Plaintiff was against the policy of the

Defendant Company, known to Plaintiff, which permits the

Eastern based

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Distributors to purchase its products at a lower rate on the

understanding that the goods are to be sold only in the

Eastern Nigeria;

(f) As a result of the aforesaid discovery, Defendant took

immediate steps to repossess the goods to prevent

diversion by Plaintiff and further resolved that the goods

would henceforth be sold to Plaintiff only on the condition

that he fully pays for the empty cartons hitherto given to

him on loan.”

The total effect of the above pleading is that the

Respondent only re-possessed the goods on ground that the

Appellant breached the Respondent’s policy, and especially

it’s pricing policy. The problem with that defence is that,

title to the goods had already passed to the Appellant, who

had paid for and taken possession of them. The Respondent

did not tender any evidence which entitled them to retake

the ownership of the goods after title to same had already

passed to the Appellant. In other words, the Respondent

did not show by evidence that title to the goods passed to

the Appellant contingent upon the satisfaction or

happening of certain events. In the circumstances of this

case therefore, title to the

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goods had passed absolutely to the Appellant. The Exhibit

“C” written by the Respondent, and which catalogued the

sins of the Appellant clearly stated the consequence of the

Appellant’s alleged acts to be, “a total blacklisting of such

offending customer.” In the instant case, rather than “black

list” the Appellant, the Respondent took back and

converted the goods bought and paid for by the Appellant.

It is therefore my finding that the action of the Respondent

was not supported by any custom, usage, practice of the

trade or any of the terms of the distributorship agreement.

It was therefore not justified. I therefore hold that the

Respondent was liable for the conversion of the Appellant’s

goods without lawful justification. The Appellant is

therefore entitled to be compensated by way of damages.

Now, the law is that in an action or claim of damages for

conversion, the law permits award of damages based on the

principle of restitution of the injured party. However in a

claim of damages for conversion, the measure of damages

is generally the value of the chattel or goods at the time of

the conversion

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together with any consequential damages flowing from the

conversion. SeeC.D.C. (Nig.) v. SCOA (Nig) Ltd (2007)

25 C. p.198 at 1999 and Ordia v. Piedmant (Nig.) Ltd

(1995) 2 NWLR (pt.379) p.516. The redress the Plaintiff

is entitled to is a return of the chattel or goods to the

Plaintiff (owner) or the payment of the equivalent value of

the goods converted. In other words in a claim for

conversion, only the value of the goods as at the date of

conversion may be awarded. Though special damages may

be claimed and awarded, but it does not include a claim for

loss of earnings after the date of conversion. See Ojini v.

Ogo Oluwa Motors (Nig.) Ltd (supra); U.B.A. Plc v.

Ogunsanya (2003) 8 NWLR (pt.821) p. 111; Stitch v.

A.G; Federation (1986) NWLR (pt.46) p.1007 and

Odejide v. Fagbo (2004) 8 NWLR (pt.874) p.1. In the

case of Mrs. Betty Darego v. A. G. Leventis Nigeria

Limited & Ors (2015) LPELR – 25009 (CA), my learned

brother Nimpar, JCA said:

“I agree that the award of damages generally is based on

the principle of restitution for the injured party. It is

broadly a monetary compensation. I however disagree with

the learned counsel for the

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Appellant that damages in an act for tort of conversion is

awarded as at the date of judgment… In conversion

damages is given as at the day of conversion, a single sum,

usually the value of the item at date of conversion and

damages for its detention. The argument of awarding

damages for the period of litigation is inconsistent with the

principles of award of damages in cases of conversion. See

the case of C.D.C. (NIG) v. SCOA (Nig) Ltd (2007) 2

S.C. 198 at 199 where the Court held thus:

“The measure for damages for conversion generally is the

value of chattel at the time of conversion together with any

consequential damages flowing from the conversion.”

In the instant case, the principal claim of the Appellant is

for loss of earnings and 18% interest on the amount

claimed as loss of earnings. It is the law that, such a claim

for loss of earnings is inconsistent with the principles of

award of damages in cases of conversion. It cannot

therefore be awarded in a claim for the tort of conversion.

In the same vein, the 18% interest claimed on the loss of

earnings cannot be awarded, being contingent upon the

award of the damages for

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loss of earnings. Furthermore, the circumstances of this

case show clearly that it is no more feasible to order the

Respondent to immediately release the 750 cartons of

Vitamalt with the liquid contents in bottles thereof, to the

Appellant. That being so, it means that items (i), (ii) and (iii)

are not grantable. The only relief the Appellant can get is

the alternative one which seeks for:

“The payment of money equivalent of 750 cartons of

Vitamalt with the liquid contents (cartons and bottles

inclusive) at the market value of the products.”

The law does not permit this Court to award the value of

the goods as at the date of judgment. The amount of

damages to be awarded is the value of the goods at the

time of conversion together with any consequential

damages flowing from the conversion. In the instant case,

the Appellant pleaded in Paragraph 11 of the Statement of

Claim that:

“The Plaintiff states that in October, 2001 he did bring his

750 empty cartons to the Defendant on a purchase order

and he also did make payment therefore totaling

N334,050.00 (Three Hundred and Thirty Four Thousand

and Fifty Naira). The Plaintiff

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pleads and shall during trial found on a copy of packaging

Voucher for the delivery of the 750 cartons dated

15/10/2001 and the invoice witnessing the payment both

issued by the Defendant.”

The Appellant then testified in page 47 of the Record of

Appeal that he paid for the liquid contents of 750 cartons of

Vitamalt with the liquid contents. He also stated at page 51

of the Records that he bought the empty bottles at N350

per carton and that he had bought 1000 cartons on credit

from the Respondents. It therefore means that the value of

the 1000 cartons he bought on credit at N350 per carton

was N350,000.00. He then stated that he had repaid

N75,000.00 leaving a balance of N275,000.00. This agrees

with the case of the Respondents who pleaded that, after

recomputing the Plaintiff/Appellant’s entitlements, they

discovered that the Appellant was indebted to the company

to the tune of N275,000.00 plus N10,000.00 the Appellant

collected on an “I.O.U” on the 07/12/2001. According to the

Respondent, after deducting the sum of N275,000.00 and

the N10,000.00 owed it by the Appellant, it came to the

conclusion that the Appellant’s

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outstanding entitlement from the Respondent was

N311,500.00 which it had paid to the Appellant in full and

final settlement of his claims.

Now, at page 52 lines 1 – 2 of the Record of Appeal, the

Appellant admitted that he collected N10,000.00 from the

Respondent on an “I.O.U” on the 7/12/01. From the

evidence on Record, the Appellant testified that he paid for

750 cartons of Vitamalt and that he went with is empties

totalling 750 cartons. That he bought the empties at N350

per carton. Having used 750 cartons to buy the drinks, it

would mean that he was entitled to the value of 750 cartons

at N350 per carton, which amounted to N262, 500 (Two

Hundred and Sixty-two Thousand, Five Hundred Naira) for

the 750 empty cartons of Vitamalt. He further testified at

page 54 of the records that he bought 750 cartons of the

liquid content at N384.00 per carton, which totaled

N288,000.00 only. It therefore means that the value of the

goods converted would be N262,500.00 plus N288.000.00

only, which would amount to N550,500.00. However, the

Appellant also testified and tendered Exhibit ”A” which

show that the Appellant paid a composite or

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total sum of N445.40 per carton, and having bought 750

cartons, the total value would be N334,050.00 only. That is

exactly what was pleaded by the Respondent in Paragraph

3(d) of the Amended Statement of Defence. In law, that is

what the Appellant was entitled to at the time of

conversion.

I wish to note however, that the Respondent had on its

own, pleaded and led evidence to the effect that after

recomputing the Appellant’s net entitlements, it came to

the conclusion that the Appellant was entitled to the sum of

N311,500.00 being a full and final claims of the Appellant.

It is also on record that the Respondent paid to the

Appellant the sum of N311,500.00 as a full and final

settlement of the dispute between them. Though the

Appellant accepted the sum paid to him, he disagreed that

it was in full and final settlement of his claims against the

Respondent. It has been found however, in this judgment

that the Appellant cannot be awarded damages for loss of

earnings but only the value of his goods as at the date of

the conversion. The Appellant has also not been able to

establish by his pleadings and evidence that he is entitled

to any other claim,

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the claim for loss of earnings having failed. The totality of

what I have laboured to explain is that, the Appellant has

not proved that he is entitled to any other claim, special or

otherwise, consequent upon the Respondent’s act of

conversion, aside from the value of the goods converted as

at the time of the act of conversion.

Having held as above, it is my view that this Appeal has

succeeded on issues 1, 2 and 3. The Appeal has failed

however on issue 4. This Appeal therefore succeeds in part

only. Accordingly, that part of the judgment of the trial

Court to the effect that the Appellant accepted the sum of

N311,500.00 in full and final settlement of his claim against

the Appellant is hereby set aside. I make no order on cost.

MODUPE FASANMI, J.C.A.: The facts and the issues for

determination in this appeal have been set out in the draft

of the lead judgment of my learned brother Haruna Simon

Tsammani, JCA.

The issues raised in the appeal were lucidly dealt with. I

have nothing more to add. I agree entirely with the

reasoning and conclusion and abide by the consequential

orders contained therein.

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CHINWE EUGENIA IYIZOBA, J.C.A.: I had the privilege

of reading in draft the judgment just delivered by my

learned brother, HARUNA SIMON TSAMMANI JCA. I agree

with his reasoning and conclusions. The learned trial judge

erred in failing to consider other issues raised by learned

counsel in the case based on his erroneous conclusion that

the Appellant accepted the payment of N311, 500.00 in full

and final settlement of his claim. In the case of OBI

V. I.N.E.C. (2007) 11 NWLR (pt. 1046) 560 the SC set

out the conditions which must be satisfied to empower us

to re-hear the matter under Section 15 Court of Appeal Act

2004. As set out in the lead judgment, the conditions were

fully satisfied. I agree with my learned brother that after

considering the facts of the case that the only entitlement

of the appellant since he failed to prove by his pleadings

and evidence that he suffered any other consequential

damage flowing from the conversion; is the value of the

goods converted as at the time of the conversion; already

paid to him by the Respondent. I abide by the consequential

orders in the lead judgment.

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