YASSIN V. BARCLAYS BANK D.C.O.

• Pages: 136-144

136

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NIGERIAN SUPREME COURT CASES

[1968] N.S.C.C.

that he was negligent in looking after the goods in his possession and that because

of that it is established not that the goods were lost from his possession but that

they have deteriorated in value, then the claim cannot, in our judgment, be brought

in detinue. When an action is brought in detinue it is brought for the specific re-

covery of personal chattels wrongfully detained from the person entitled to the pos-

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5

session of them and for damages occasioned by the wrongful detainer, and

examples of how the claim should be brought can be seen in Bullen and Leake's

Precedents of Pleadings, 11th edition, P. 427.

The plaintiff, in the present circumstances, ought to have considered whether it

was possible to sue in contract or in tort for negligence itself. The plaintiff here did

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10

not establish that the defendant had lost the goods whilst in its possession and by

the time the action was commenced the learned trial judge accepted that none of

the goods remained in the possession of the defendant as they had been handed

over the Palm Lines at the request of the plaintiff and we do no see that the learned

trial judge was wrong in making this finding. Having regard to this, Mr. Atilade's

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15

submission on the law fails and it is not, therefore, necessary to consider the vari-

ous grounds of appeal which, on the facts, he contended supported his submission

as to the law.

Finally, we must add that it was not disputed by Mr. Atilade that. after the goods

were handed over to Palm Lines by the defendant, Palm Lines shipped some 22.85

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20

tons for the plaintiff but no credit seems to have been given to the defendant for

this in the plaintiff's claim for £2,725. 16.6 and no evidence of the value of the

goods so shipped was given so it would, in any case, have been impossible for

us to have given judgment for the plaintiff for the sum claimed if he had otherwise

established his claim which we have already indicated in our view he has not.

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The appeal is accordingly dismissed with costs which we will assess on hear-

ing counsel as to the amount that the defendant had to pay for the record of ap-

peal, as this does not appear, as it always should, in the record of appeal.

Appeal dismissed.

30

YASSIN V. BARCLAYS BANK D.C.O.

35

IBRAHIM KHALIL YASSIN

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DEFENDANT/APPELLANT

V

BARCLAYS BANK D.C.O.

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PLAINTIFFS/RESPONDENTS

SUIT NO. SC 213/1967

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40

SUPREME COURT OF NIGERIA

BRETT,

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J.S.C.

LEWIS,

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J.S.C.

MADARIKAN,

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J.S.C.

17th May, 1968.

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45

Contract

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- Contract of guarantee - Debt proved by admissible evidence under

s.96(2)(e) of Evidence Act as an ordinary book of bank - Inadmissible evidence

to be rejected but possibly admissible evidence not to be rejected if admitted

unopposed - If evidence wrongly admitted miscarriage of justice based under

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s.266(1) of Evidence Act - Claim that condition precedent to guarantee not

fillfilled must be pleaded in U.K. and in Nigeria under Order 32 Rule 11

and 13 of the Supreme Court (Civil Procedure) Rules.