CASE SUMMARY OF:
Leventis Motors Ltd v. P. E. Agbajor (1971) - SC
by NSA PaulPipAr
- Sale by description;
Leventis Motors Ltd
P. E. Agbajor
(1971) All N.L.R. 82;
Federal Supreme Court
LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
- Mr Majekodunmi.
* FOR THE RESPONDENT
- Mr Ajuyah.
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Bank: Zenith Bank.
Name: Branham Paul Chima.
Account No.: 2178756839.
FACT (as relating to the issues)
The appellants were the plaintiffs in the High Court, Benin City, where they had claimed from the defendant the sum of £850 being the outstanding balance still unpaid in respect of one Mercedes Benz 220S saloon car sold to the defendant by the plaintiffs at Benin City on 8th May, 1964. According to their statement of claim, the car which was second-hand at the time was offered to the defendant for £1,500. He agreed to pay this amount for the car, paid the sum of £650 in cash that same day and then signed the plaintiff's invoice. The balance of £850 was to be paid within one month of the sale either by the United Dominion Corporation (Nigeria) Ltd. of Lagos to whom he was applying for a loan or personally if the Corporation defaulted.
After three written requests by the plaintiffs for the payment of the balance of £850, the defendant, on receiving the last request written on 31st August, 1964, informed the sales manager of the plaintiff company that what he asked for was a home-delivery car and not a second-hand car, and hence, was not going to pay the remainder balance.
Judge found as follows: "I will say at this state that I believe in its entirety the description which the defendant said the plaintiffs' witnesses made to him of the car. Now, although the defendant did not say he wanted a home-delivery car when he looked forward for the plaintiff to get a car from him to buy and so it cannot be said that that was an original condition on which the plaintiff was to sell him a car, it is my view that the plaintiffs' 1st witness by offering the car to the defendant as a home-delivery car and camouflaging it as such, introduced into the sale a warranty as to the condition of the car that the car was such...I will go even further and say that it appears to me the defendant by the £650 he paid, had paid what would be a fair price for the car."
Hence, the trial judge found for the defendant (Respondent herein).
The Plaintiff (as Appellant herein) is dissatisfied and has appealed to this Court.
1. Whether what the defendant/respondent was offered and what he bought was a second-hand Mercedes Benz 220S saloon car or a home-delivery car?
HOLDING & RATIO DECIDENDI
1. THE SUPREME COURT GAVE JUDGEMENT IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. In considering this point, it is difficult to lose sight of the fact that the defendant/respondent himself admitted that he signed the invoice (Ex. 2) in which the car was described as a second-hand car. In explaining why he signed, the defendant/respondent testified as follows: "I asked plaintiffs' 1st witness why the car was described as a second-hand car and he said that was how they described second-hand cars. (Home-delivery cars probably intended). I myself regarding a home-delivery car as a second-hand car, I signed the paper".
ii. Even Vincent Egbina (4th D/W) one of his witnesses who was the accounts clerk in the Police Headquarters in Benin City at the material time also testified that: "Home-delivery cars are classified as second-hand cars." Therefore to our mind, the contention that a car described as a home-delivery car is different from one described as a second-hand car, is, in the particular circumstances of the instant case and bearing in mind the known facts about the particular car, fallacious. The car is, without any doubt, a second-hand car. That being the case, the distinction is one without a difference. Indeed, the defendant/respondent notwithstanding how the car might have been described to him, knew or ought to have known that he was buying a second-hand car for the following reasons: (a) The car, at the time it was sold to the defendant/respondent, had a Nigerian vehicle licence (Ex. 1) made out in the name of one Nzegwu, the former owner, on the windscreen; (b) it had done at least 4,000 miles and probably 21,000 miles (the figure shown on its speedometer) at the time it was offered for sale; (c) it was at least three months old and probably older; and (d) it was clearly described in the invoice (Ex. 2) made out on 8th May, 1964, the date of the sale, and signed on that same day by the defendant/respondent as a "second-hand car".
iii. As we have pointed out earlier, the car was offered to the defendant/respondent as a second-hand car and he bought it as such. It is, in our view, a case of sale by description. There was no question of any hidden defects in the car; this much was conceded by the learned Counsel for the defendant/respondent. The contract is therefore governed by the provisions of section 15 paragraph (b) of the Sale of Goods Law (Cap. 115 of the Laws of the Western State of Nigeria) applicable in the Mid-West at the material time.
iv. There is one other point. The learned trial Judge was of the view that the sum of £650 paid by the defendant/respondent was a fair price for the car. Quite apart from the fact that his views in this respect are irrelevant to the plaintiffs/appellants' claim, he obviously overlooked the material fact that within a week of the sale of the car to him, the defendant/respondent insured it for the sum of £1,000 as shown in the insurance policy (Ex. 12)! The plaintiffs/appellants' claim for the balance of £850 is in our opinion therefore well founded. No other conclusion seems possible.
Section 15 paragraph (b) of the Sale of Goods Law (Cap. 115 of the Laws of the Western State of Nigeria): "Where goods are bought by description from a seller (whether he be the manufacturer or not), there is an implied condition that the goods shall be of merchantable quality: provided that if the buyer had examined the goods there shall be no implied conditions as regards defects which such examination ought to have revealed."
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Bartlett v. Sidney Marcus Ltd. (1965) 1 W.L.R. 1013 (C.A.);
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