⦿ CASE SUMMARY OF:
Civil Design Construction Nig. Ltd. v. SCOA Nigeria Limited (2007) – SC
⦿ LITE HOLDING
The award of damages for value of the chattel for detinue is at the date of judgement.
⦿AREA OF LAW
– Hire Purchase.
Civil Design Construction Nig. Ltd.
SCOA Nigeria Limited
(2007) 6 NWLR (Pt.1030) 300
(2007) 2 S.C 195
⦿ LEAD JUDGEMENT DELIVERED BY:
W. S. N. ONNOGHEN, J.S.C
* FOR THE APPELLANT
– C. EZIKE, Esq.
* FOR THE RESPONDENT
– PRINCE ADESEGUN A JIBOLA.
⦿ FACT (as relating to the issues)
The plaintiff who is hereinafter called “the appellant,” at first bought one Ingersoll Cyclone Water Well rig with registration No. LA 2632 WD, from the respondent under a Hire Purchase Agreement for the sum of N100.000.00 being two instalments of N50, 000.00 each remaining unpaid or outstanding at the time of the dispute between the parties.
The facts of the above two transactions, as will be observed, are undisputed by the parties.
There is finally a third transaction involving scrappers, the facts in relation to which, however, are violently disputed by the parties. In those instances, the allegations were that on 26/1/84 and 10/2/84 respectively, it bought a road scrapper each on those dates for the sum of N159,903.00 and fully paid cash for both.
The appellant’s further contention is that the parties later agreed that the sums paid on the two scrappers be merged and credited to the appellant on account of the purchase by the appellant on hire purchase terms of one new rig and two service rigs’; that the respondent later expressed its inability to implement the said agreement which made the appellant to instruct the respondent to sell the scrappers and make a refund to it of the purchase price for both scrappers.
On the other hand, the respondent contends that each scrapper was sold for N177,162.00 and that the sum of N159,903.00 paid by the appellant on each scrapper was a deposit against the said purchase price and that the appellant owed the balance of N34, 518.00 on both scrappers.
It is the further contention of the respondent that the appellant bought two other scrappers for which no deposit was made but rather, the appellant allegedly deposited its rig No. LA 2632 WD as security against the payment due on the said scrappers.
The respondent claimed to have delivered the four scrappers to Sokoto Agricultural Development Project (SADP) on behalf of the appellant on an alleged instruction of the appellant which the appellant denied.
It is in these circumstances that the appellant instituted suit No.LD/481/85 in the High Court of Lagos State, holden at Ikeja.
1. Were the purchase and sale governed by Hire Purchase Act 1965?
2. With regard to the plaintiffs 2 scrappers and the reliefs sought for their conversion/detinue what reliefs should the Court of Appeal have awarded in the circumstances of this case?
3. In the circumstances of this case, what is the correct measure of damages for the seizure of the plaintiff’s rigs?
4. Was the award of the sum of N108,324.16 to the defendant made on the correct principles of law?
1. Whether there was evidence to support the award of damages made by the Court of Appeal.
2. Whether the Court of Appeal was justified in making a fresh appraisal of evidence already appraised by the trial court.
3. Whether the Court of Appeal was right when it held that exhibit D3 was inadmissible and evidence of a fact not pleaded.
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 IS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. It is settled law that a plaintiff must succeed on the strength of his case and not on the weakness of the defence and that where the evidence of the defence supports the case of the plaintiff, the plaintiff is entitled to rely on same in proof of his case. It is not disputed that the plaintiff/appellant pleaded that the rig is a mechanically propelled motor vehicle intended or adopted for use on roads duly registered as a motor vehicle by the respondent. The position of the law being what it is, the appellant is entitled to take advantage of the evidence of DW1 extracted under cross examination and which supports the pleading of the appellant to the effect that the Particular rig in issue is a motor vehicle.
ii. I hold the view that if the rig is generally treated as if it is a motor vehicle and having regard to the facts and circumstances of this case its being registered by the motor licensing authority, being insured, given certificate of road worthiness and driven by a driver it is in fact a motor vehicle within the contemplation of section 20(1) of the Hire Purchase Act.
iii. That apart, it is in evidence that it is the respondent who represented to the appellant that the rig in question is a motor vehicle by the act of registration of same as a motor vehicle with the motor licensing authority and obtained a certificate of road worthiness for the vehicle and are, in law, estopped from denying that the said rig is a motor vehicle.
iv. Even under the common law, if it were to apply to the facts of this case, which I do not concede, the respondent cannot seize or repossess the rig without recourse to the court, It is therefore not the case that if the common law applies, the respondent can repossess the rig by seizure or otherwise than as provided by law, particularly as it is in evidence before the court that appellant had paid up to 60% of the purchase price of the rig in question which fact has not been disputed by the respondent. I therefore hold that the Hire Purchase Act applies to the transaction between the parties and that as it is admitted that appellant has paid 3/5th of the purchase price of the rig in issue the respondent cannot in law repossess the rig otherwise than in accordance with the law. In the circumstance, I resolve issue No. 1 in favour of the appellant.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. Since the lower courts have, rightly in my view, found concurrently that the delivery and sale of the appellant’s scrappers by the respondent to SADP was without the authority of the appellant and therefore wrongful and the respondent has not contested issue No 2 as argued before this court and therefore deemed to have conceded same, it follows that appellant is entitled to the reliefs claimed in respect of the said two scrappers, particularly as pleaded in paragraph 34(8), 34(9), 34(10) and 34(11) of the third amended statement of claim which is hereby ordered accordingly. For the avoidance of doubt, it is further ordered that the necessary inquiries into the market value of the said scrappers shall be as at the date of the judgment of the High Court.
3. ISSUE 3 IS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. Is this court therefore to order the assessment of the value of the appellant’s car as at now or as at the date when the Federal High Court gave its judgment, namely, 18th May, 1983? It is pertinent to mention that although the appellant is in addition to the value of the car entitled to general damages, no such claim has been made in either her writ of summons or statement of claim. She would have been entitled to damages had the claim been made. Be that as it may, in my view, therefore, the assessment of the value of the car which is going to be made by the Federal High Court should be as at the date when that court gave its judgment in the case, which is 18th May, 1983 and not as at the date of this judgment or any date in the future as ordered in the judgment of my learned brother, Aniagolu, J.S.C.
4. ISSUE 4 IS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. Under section 2(2)(a) of the Hire Purchase Act parties to a hire purchase agreement are, among other requirements required to sign the agreement of hire. In the instant case, it is not disputed that only the appellant signed exhibit D2 and that the respondent never signed same. From the facts on record the appellant had paid 3/5th of the hire purchase price and under section 9(2) (a) of the Hire Purchase Act, the respondent cannot enforce repossession of the rig in issue.
ii. Even under the common law, it is settled that a hirer cannot repossess the hired goods without an order of court. In the instant case, it is not disputed that the respondent never obtained the leave of the court before seizing the rig in issue. In short, in either way, the respondent’s seizure of the rig in question was in breach of contract and therefore condemnable. It is therefore clear, and I hereby hold that the respondent having seized rig No. LA 8509 WD in violation of the provisions of the Hire Purchase Act cannot recover the outstanding installment of N100,000.00 and that the Court of Appeal erred holding otherwise.
1. ISSUE 1 RESOLVED AGAINST THE CROSS-APPELLANT.
RULING: I have to observe that I have dealt with many aspects of the issues in the cross appeal during my consideration of the main appeal. Particularly cross appellant’s issue No. 1 had been dealt with completely when the issue of damages recoverable for the two rigs and two scrappers were considered and determined.
2. ISSUE 2 RESOLVED AGAINST THE CROSS-APPELLANT.
RULING: On issue No.2, it is very clear, as found in the main appeal, that cross appellant presented conflicting claims in relation to how it came into possession of rig No. LA 2632 WD and for what purpose. In one breath, it is claimed that the rig was delivered by the appellant to the cross appellant as security against the purchase price of two additional scrappers whereas in another breath it is contended that it was sold vide exhibit D3 by the appellant to the cross appellant. To compound the matter, the cross appellant admitted that the rig was sent to it for repairs as pleaded and testified to by the appellant. At the end, the trial court awarded ownership of rig No. LA 2632 WD to the cross appellant even though cross appellant never claimed such a relief in its counter claim neither did it plead such a fact of ownership. It is settled law that an appellate court has the duty to set aside a perverse finding, judgment or decision particularly one that awarded a defendant what it never claimed on a case it never made before the court, as is in the instant case.
3. ISSUE 3 RESOLVED AGAINST THE CROSS-APPELLANT.
RULING: On the third issue, it is very clear that exhibit D3 is at variance with the pleadings of the cross appellant. It was never the case of the cross appellant that Rig No. LA 2632 WD was sold by the appellant to the cross appellant as can be verified from the pleading. Exhibit D3 was even shown not to have been made by an officer of the appellant. It is trite law that evidence on a fact not pleaded grounds to no issue, where admitted such evidence is strictly inadmissible in law primarily as it is not relevant if it were, it ought to have been pleaded.
S. 1, 9(2), Hire Purchase Act.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
In the case of Dale v. Hargreaves (1961) All ER 552 at 556 SALMON, J held that all that is required to categorise a machine as a motor vehicle is its capacity of “being driven along public roads in transit or for purposes of carrying materials from one site to another.”
In British Oxygen Co. v. Board of Trade (1968) 2 All ER 177 at 188 Buckley, J held that: “I am unable to accept the company’s contention that ‘vehicle’ here means only such ordinary means of transport as lorries and motor cars … in my judgment it extends to specialized vehicles.”
In the case of Stitch v. A.G of the Federation (1986) 12 S.C 373 at 422-423, (1986) 5 NWLR (Pt. 46) 1007 this court stated, per UWAIS, JSC (as he then was) that the measure of damages for conversion is “the value of the chattel at the date of conversion together with any consequential damages flowing from the conversion.”
In the case of Buswell v. Goodwin (1971) 1 All E.R. 418 @ 421, Widgery L.J. stated inter alia: “The proposition that a man will not be allowed to take advantage of his own wrong is no doubt a very salutary one and one which the court would wish to endorse …”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
It is settled law that evaluation of evidence and ascription of probative value is the primary function of the trial court which heard and watched the witnesses testify and that an appellate court will not ordinarily interfere with the findings of a trial court unless in special or exceptional circumstances, such as where the finding of the trial court is not supported by the evidence or is otherwise perverse or where the trial court has not made full use of the opportunity of watching the demeanor of the witnesses etc. – Onnoghen, JSC. Design v. SCOA (2007)
It is settled law that where a contract is declared unenforceable by the express provision of a statute, equity will not assist the party disentitled to enforce it by granting him a redress. – Onnoghen, JSC. Design v. SCOA (2007)
It is trite law that an action in detinue may result in a judgment in one of three different forms: (1) for the value of the chattel as assessed and damages for detention; or (2) for return of the chattel or recovery of its value as assessed and damages for its detention; or (3) for return of the chattel and damages for its detention. – Akintan, JSC. Design v. SCOA (2007)