' l 1 IN THE SUPREME COURT OF NIGERIA HOLDEN AT ABUJA ON FRIDAY THE 13TH DAY OF MAY, 2011 BEFORE THEIR LORDSHIPS DAHIRU MUSDAPHER JUSTICE, SUPREME COURT MAHMUD MOHAMMED JUSTICE, SUPREME COURT MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE JUSTICE, SUPREME COURT JOHN AFOLABI FABIYI JUSTICE SUPREME COURT BODE RHODES-VIVOUR JUSTICE, SUPREME COURT SC. 47/2005 BETWEEN: NACENN NIG ER IA LI M ITE D PLAINTI FF/ APPE LLAN T AND BEWAC AUTOMATIVE PRODU CE RS LI M ITED DEFE NDANTS/RESPOND ENT JUDGMENT (DELIVERED BY M. S. MUNTAKA COOMASSIE, JSC) The appellant as plaintiff in its further further amended Statement of Claim dated 1/2/96 claimed against the respondent as the defendant as follows:­ "WHEREFOR E t he plaintiff cla ims from t he defendant as follows:- I. Replacement Engine for AN 7322 EB N590,241.21 II. Replacement Engine for AN 6619 EB N590,241.21 Ill. Insurance costs for AN 6619 EB N1,457.77 IV. Insurance costs for AN 6619 EB N1,457.77 v. Freight duty and clearing charges for replacement Engine for AN 7322 EB N68,033.49 VI. Freight duty and clea ring charges for AN 6619 EB N68,033.49 N1l319 l464.9 4 2 B. Loss of use/earnings at the rate of W1,600.00 for two tippers, counting from 23/4/91 up to and in cl uding 31st March, 1992; W2,600 per day from 1st day of April, 1992 up to and including 31st day of December, 1994 and from the 1st of January, 1995, at the rate of W9,000.00 per day until the judgment is delivered in this suit and until the judgment debt is liquidated by the Defendant, the two tippers in question in this suit". Pleadings were duly filed and exchanged after which the parties called their respective witnesses. The trial Judge in its decision entered judgment for the plaintiff in the following terms:- "i. There shall therefore be judgment for the plaintiff as follows:- a. W1,319,464.94 being the costs of replacing the plaintiff's two engines b. Loss of income commencing from 23/4/91, a day after full payment of the judgment debt in E/ 179/86 as follows:- 1. W1,000.00 per day from 23/4/91 to 23/3/92. 11 . W2,600.00 per day from 1st April, 1992 until 31st Decem ber, 1994 .... ." The defendant was dissatisfied with the above judgment of the trial court and has as a result successfully appealed to the Court of Appeal Enugu Division hereinafter called court below. The court below on 29/11/04 unanimously allowed the appeal and set aside the judgment of the trial court and its orders. The matter was remitted to the Chief Judge Enugu 3 State to be tried de novo by another Judge. See pages 219 - 230 of the record. The plaintiff was dissatisfied with the decision of the court below and has appealed to the Supreme Court. Before us and in accordance with the rules of this court, both parties through their respective counsel filed and exchanged their briefs of argument. The appellant in its brief of argument dated 5/5/10 formulated three issues for determination as follows:- "1. Whether the Court of Appeal was right to have set aside the award made by the High Court to the appellant of the sum of N1,319,644.94 being the replacement value of the two engines on the basis that the High Court did not apply the correct principle of law relating to assessment of damages in an action in detinue and lack of consideration of the worn out state and depreciation value of the engines in making the award (ground 1, 3 and 5) 2. Whether the Court of Appeal was right to have interfered and reversed the finding of the High Court that the respondent failed to prove that the vehicles were unserviceable and in setting aside the award of damages for loss of use made by the High Court on the ground that the tipper vehicles were unserviceable (Ground 2) 4 3. Whether the Court of Appeal was right to have made an order for trial de novo of the suit in the circumstances of the case . (Ground 4} Whilst the respondent herein also formulated three issues for determination thus:- "1. Whether the Court of Appeal was right to have set aside the award made by the High Court which is based on the costs of importing new engines in lieu of the costs of accidented and "knocked" old Engines". 2. "Was the Court of Appeal right in setting aside the award of damages for loss of use made by the High Court on the ground that the tipper vehicles were unserviceable and abandoned". 3. "Whether the Court of Appeal was right to have made an order for trial de novo in this suit". The respondent is an automobile sales and service company with the appellant as one of its customers. Both parties have being doing business together for many years. However, prior to the institution of the present suit, the respondent sued the appellant in suit No. E/179/86 and got judgment in the sum of N73,639.94 representing an outstanding debt of previous services rendered to the appellant. This judgment was paid by the appellant. In the meantime, two tippers with registration No. AN 6619 EB and AN 7322 EB were in possession of the respondent for repairs. Those vehicles were bought by the appel lant from the respondent as "brand new · vehicles". The job orders were tendered as Exhibits Dl and 04. After the I, 5 appellant has complied with the judgment in suit No E/179/86, he sent its staff to go and collect the vehicles and it was discovered that the engine of the vehicle with registration No. AN 7322 EB has been replaced with strange engine, and as such the respondent was no longer in a position to deliver the vehicles. The appellant made enquiries at the cost of equivalent engine he received quotations which were tendered as Exhibit F, and got the naira equivalent from the Co-operative and Commerce Bank Pic which was tendered as Exhibit Fl. Appellant also obtained the insurance quotation which was tendered as Exhibit F2, the import duty quotation was also tendered as Exhibit F3. According to the appellant's witnesses the tippers were being used for civil engineering construction, and they also hired them to other users, the cost of the hiring were stated. funderlinings mine) At the hearing of this appeal, learned counsel to the appellant adopted his brief of argument and urged this court to allow this appeal. His arguments and submissions covered pages 4 - 19 of his brief dated 5/5/2010 and filed on 10/5/2010. On issue No. 1, learned counsel to the appellant submitted that cause of action of the appellant was primarily the failure of the respondent to comply with the part of the consent judgment in suit No. E/179/86 directing the respondent to return to the appellant the tipper vehicles in the custody of the respondent as the respondent has tempered with the vehicle engines. It was this contention that the reliefs sought by the appellant for 6 the replacement of the engines were the current cost of the engines and not the cost at the time of default by the respondent in returning the tipper vehicles. Thus the sum of N1,819,464.94 awarded by the High Court was the current cost for the replacement of the engines. Learned counsel submitted that the lower court was in grave error when it set aside the "said ·awa rd". It was his contention that the lower court misconceived the law re lating to assessment and award of damages in detinue, and that the decision in the case of Ade Olenle V. Roya l Exchange Assurance (1958) WNLR relied on by the lower court were decisions based on action in negligence and not in detinue. Learned counsel therefore submitted that the correct principle of law in the assessment of the value of a chattel unlawfully detained in an action in detinue is the value of the chattel at the judgment. The case of Ordia V. Piedmont (Nig.) Ltd (1995) 2 NWLR (pt. 379) 516 at 527- B- C, were cited. On the 2nd issue, it was the submission of the learned counsel that the award of damages for loss of use is in accord with the pleadings and evidence in the case as well as principles guiding the award of damages in an action in detinue, he referred to the evidence of the sole witness to the appellant that the said vehicle were delivered to the respondent for servicing and were to be returned in serviceable conditions. He therefore su bmitted further that the trial court having accepted the evidence of the appellant that the vehicles were to be serviced and returned in good condition, the Court of Appeal ought not to have interfered to re-evaluate the evidence. The evidence in these issues, without it being shown that the 7 finding of the trial court was perverse, or not supported by the evidence before it. He further submitted that the Court of Appeal did not re-evaluate the evidence on those grounds rather it erroneously proceeded to retry the case based on the record of evidence and from which it came to a different conclusion . The lower court, it was submitted committed, a grave error of law by substituting the finding of the trial court with its finding reversed the award of damages for loss of use made by the trial court.