⦿ CASE SUMMARY OF:
J.E. Oshevire Limited v. Tripoli Motors (1997) – SC
J.E. Oshevire Limited
(1997) 5 NWLR (Pt.503) 1;
⦿ LEAD JUDGEMENT DELIVERED BY:
S. U. ONU, J.S.C.
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Mr. Oge
* FOR THE RESPONDENT
– Mr. Ainoko
The case for the appellants was that they took their vehicle, a Honda Accord Car Registered No. KN 5962 KM, which was earlier involved in an accident, to the respondents for repairs and the respondents gave an undertaking to complete the repairs within one month and in addition to replace the damaged parts with new parts.
It was common ground that the respondents were to be paid for their services by the appellants insurers, the Royal Exchange Assurance Company, less N400.00 for excess, the latter to be sold by the appellants upon being satisfied that the vehicle was properly repaired.
The respondents failed to carry out their obligation under the contract to effect the repairs skilfully and in a workmanlike manner within the time stipulated; rather what the respondents produced was a shoddy type of work that fell short of the appellants expectation. Such that when the appellants demanded for the return of the vehicle, the respondents refused; instead they insisted that unless the appellants signed the satisfaction Note, they would not return the vehicle to them and this, despite the fact they (appellants) had paid them (respondents) the N400 excess and kept the vehicle till judgment.
The gravamen or strong point of defence put forward by the respondents was that there was no privity of contract between them and the appellants.
Consequently, they denied every averment contained in the appellant Statement of Claim.
They further contended that the only contract they had was between them and the Royal Exchange Assurance which were not made parties to these proceedings.
(i) Whether there was privity of contract between the plaintiffs/appellants and the defendants/respondents.
(ii) Whether there was a breach of that contract by the defendants/respondents.
(iii) Whether that breach gives rise to two reliefs i.e.
(a) Damages for breach of contract, and
(b) Damages for detinue.
(iv) Whether the Honourable Judge came to a right decision based on the totality of evidence before him.
⦿ HOLDING & RATIO DECIDENDI
1. For issue 1, the Supreme Court held that there was Privity of Contract.
i. In Charnock v. Liverpool Corporation Case, As Harman, L J at page 475 said: “I must confess that when I first heard that proposition put it seemed to me that, in spite of the strenuous advocacy of Mr. Leech, it was “all my eye,” if I may use a vulgar phrase, and that it would not do at all, and that when a man takes his car into a garage and asks the garage to repair it, as is done everyday, and the garage agrees to do so, there a contract is made to do the repairs with reasonable skill and in a reasonable time. The fact that the insurance company will indemnify the car owner is well known in all insurance cases to both parties. The practice has own up that the insurance company shall agree the sum for which it will stand surety and a contract is very often made by the repairer with the insurance company. Let it be so in this case. That does not, in my view, at all rule out the existence of a contract between the person who owns the car and the repairer.”
ii. In Brown & Davis v. Galbraith (supra) at page 39 Sachs, L J. opined: “Any decision in this type of case must necessarily depend on the facts established in evidence. In general, however, in those everyday transactions, there must be thousands each week when, upon a car owner bringing his damaged car to a repairer for repairs, which in practice will be paid for by the insurers, and the insurers are then brought into the negotiations, the resulting arrangements produce an agreement which in law is properly termed a tripartite agreement. I prefer the term to “two separate agreements” though in the present case, as indeed in most cases, it makes no difference which terminology is used. That tripartite agreement is one to which there are three parties, the owner, the repairer and the insurers, and each can acquire rights and each can come under obligations.”
iii. In the case of Abed Brothers Ltd. v. Niger Insurance Co. Ltd. (supra) wherein Wheeler, J. (as he then was) referred to the decision in Brown & Davis Ltd. v. Galbraith (supra). he said inter alia at page 8: “This line of authority showed that where the owner of a damage vehicle took it to repairers and informed them that he was insured and the repairers sent to the insurers an estimate for the cost of repairs which were then carried out on the insured’s instructions, that there were two contracts entered into. First, a contract between the repairers and the insurers whereby the insurers undertook to pay the cost of repairs, less any excess. Secondly, a contract between the repairers and the owner of the car whereby the repairers undertook to do the repairs efficiently and expeditiously and the car owner to pay any insurance excess.”
2. On issue 2, the Supreme Court held that there was a breach of contract.
i. When after the expiration of the one month the respondents undertook to deliver the vehicle and they failed to do so, there was clearly a breach of the contract.
3. a. The court held that the Appellant was not entitled to damages.
i. The appellants stipulated neither such particulars of the damages i.e. whether general or special damages were what they were asking for, nor gave evidence at the trial as to what quantum of such damages they were claiming.
ii. Since the damages of N2,000 awarded by the learned trial Judge can neither be categorised as general nor special, the award cannot be said to have any rational backing. The maxim ubi jus ibi remedium (where there is a right there is a remedy) would, in my view, have no sway here because: (i) the appellant did not specifically plead the amount recoverable from the breach, and (ii) it is trite that a court ought not to award to a party that which he did not claim . See Ekpenyong & ors. v. Nyong & ors. (1975) 2 S.c. 71 at 80 and Obajimi v. A.G., Western Nigeria (1967) NMLR 96.
b. On issues 3b, the Supreme Court held for the Respondent.
i. I therefore take the view that the court below in this regard was right when it observed, firstly that: “Applying those requirements to the instance (sic) case, it is clear that the appellant did not refuse to deliver the vehicle to the respondent. He delivered it but the respondent returned it complaining that it was not properly repaired and refused to sign the satisfaction note which will make the Royal Exchange Assurance not to pay the cost of repairs to the appellant” and secondly, that “In view of the foregoing and on the authority of Christopher Udechukwu v. Isaac Okwuka (supra) I am of the opinion that the defendant did detain the vehicle subject to the prearranged condition reached at the commencement of the negotiation of the repairs. Therefore the claim for detinue should not have been accepted by the lower court since evidence adduced before that court was not sufficient to warrant a finding of the claim in detinue. The finding of the lower court under this heading on the claim will in the end be set aside.”
4. For issue 4, the Supreme Court struck out the issue.
i. The question posed by issue (iv) as to whether the Honourable Judge came to a right decision based on the totality of evidence before him is, in my respectful view, incompetent and ought therefore to be struck out because by virtue of section 219 of the Constitution of the Federal Republic of Nigeria, 1979 only the Court of Appeal has jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine appeals from the Federal High Court, the High Court of a State, Sharia Court of Appeal of a State and Customary Court of Appeal of a State. This Court is therefore not competent to hear appeals straight from the High Court, Sharia Court of Appeal or Customary Court of Appeal. A ground of appeal complaining directly against the decision of the High Court is not proper.
⦿ SOME PROVISIONS
⦿ NOTABLE DICTA
A successful plaintiff in a case of detinue is entitled to an order of specific restitution of the chattel, or in default its value and also damages for its detention up to the date of judgment. – Onu, JSC. Oshevire v. Tripoli (1997)
Unlike an action for conversion which is purely a personal action and judgment is for a single sum which is the value of the chattel at the date of the conversion, detinue is in the form of an action in rem whereby the plaintiff seeks specific restitution of his chattel resulting in judgment for the delivery up of the chattel or payment of its value as assessed at the time of judgment and for damages for its detention. – Onu, JSC. Oshevire v. Tripoli (1997)
The law is well settled that in a situation where the owner of a vehicle takes it to a garage for repairs, and indicates that the cost of repairs would be settled by his insurers, and introduces his said insurers to the repairers and his insurers expressly agree to settle the cost of repairs, there exists a tripartite contract involving the owner of the vehicle, the repairer and the insurers and each can acquire rights and come under obligations thereunder. The tripartite agreement is one to which there are three parties, namely; the owner of the car, the repairers and the insurers and each can acquire rights and come under obligations as aforesaid. – Iguh, JSC. Oshevire v. Tripoli (1997)
It is settled law that a court must not grant to a party, a relief which he has not sought or which is more than he has claimed. – Iguh, JSC. Oshevire v. Tripoli (1997)