Lasisi Adeoye Adelebare V. Niger Motors Ltd (1974)
LawGlobal-Hub Lead Judgment Report
O. ELIAS, C.J.N.
In Suit No. LD/83/69 delivered at the Ikeja High Court, Lagos State, on July 5, 1971, Dosunmu, J., dismissed the action brought against the defendant claiming the sum of 6,211 Pounds being special and general damages for the alleged unlawful seizure and sale by the defendants, their servants or agents of a vehicle Bedford Bus LH. 9495, which was lawfully in the possession of the plaintiff as a hirer. The vehicle was seized on or about May 28, 1965 and sold subsequently by the defendants.
The admitted facts are these. The plaintiff, intending to purchase a Bedford bus, approached the defendants with his request, and the defendants, unable to grant the plaintiff the credit involved on their own account, arranged with Bentworth Finance (Nigeria) Limited (hereinafter referred to simply at Bentworth) for the transfer of the ownership to Bentworth which then entered into a hire purchase agreement with the plaintiff.
When the plaintiff first defaulted with the payment of his installments, the defendants acting as the agent of Bentworth, seized the vehicle. Bentworth then called upon the defendants to settle the unpaid balance of 5,070 Pounds (N10,141.00) and the ownership of the vehicle once more vested in the defendants. This happened in on of two ways. In the first place, under a deed of assignment, Bentworth purported to have transferred to the defendants “all the rights and obligations” arising under andy by virtue of the hire purchase agreement between Bentworth and the plaintiff.
The defendants, however, took the precautionary step of executing a separate and independent “hire purchase” agreement with the plaintiff, apparently on forms bearing the heading of Bentworth later changed to that of the defendants. Evidence was led to show that Bentworth and the defendants worked hand in glove in the three-cornered transaction between customer, dealer and finance company which the sale of vehicles usually entailed; and that the papers of the one were often used by the other in such transactions.
There are two other aspects of this second agreement that should be noted. The first is that, in the hurly-burly of executing the agreement, the defendants forgot to sign it, although the plaintiff as the party to be charged did. The second is that the agreement gave the defendants power to seize the vehicle and sell it upon failure by the plaintiff to keep up with his installment payments.
At the trial of the action the plaintiff argued that
“(i) he was throughout dealing with Bentworth and not with the defendants,
(ii) that the purported deed of assignment between Bentworth and the defendants were ineffective to pass to the defendants the personal rights of Bentworth to seize and sell the vehicle on his default with the installments because no written notice of the purported assignment (Ex. O) was ever given to the defendants as required by section 136 of the Law of Property Act, 1925, and
(iii) that the second agreement carried the heading of Bentworth which was later altered to “Niger Motors Ltd.” and was in any case not executed by the defendants.
“The learned trial judge observed:
“It is my view, however, that the instant case must be distinguished on the facts because in addition to the purported assignment, the defendant company made the plaintiff to enter into a fresh hire-purchase agreement.
It is in pursuance of this agreement that the defendant company proceeded to repossess the vehicle.”
As regards the plaintiff’s contention that, assuming that there was a valid assignment, the licence to seize the vehicle being a personal right which was not assignable, the learned trial judge said:
“This contention will be defeated by the fact that the seizure was not in pursuance of the deed of assignment but in accordance with the hire purchase agreement which was binding on the plaintiff because he executed same.’ It seems to me clear that the defendants are entitled to seize the vehicle as they did.”
In the alternative, the learned trial judge also considered the situation if the plaintiff should be deemed to succeed in his substantive claim for the reason that the plaintiff’s claims for special and general damages were unreasonable in the particular circumstances of the case, the learned trial judge awarded nothing to him as special damages and only 500 Pounds (N1, 000.00) as general damages.
The plaintiff appealed against the whole judgment on the following seven grounds:
“1. Judgment is against the weight of evidence.
- The learned trial judge erred in law in giving judgment in favour of the defendants on the basis of an alleged agreement dated 20th January, 1965 when such agreement was not pleaded and accordingly all evidence relating thereto was inadmissible.
- Even if the ‘agreement’ dated 20th January, 1965 was admissible in evidence the learned trial judge erred in law in failing to uphold the submission that it is not valid because it has not been executed by both parties.
- The learned trial judge erred in law in failing to observe that even if it was established that there was a valid assignment of the contractual rights of Bentworth Finance (Nigeria) Limited to the defendants such assignment will not operate to transfer to the said defendants the benefit of the Hire Purchase Agreement which is personal to Bentworth Finance (Nigeria) Limited such as the licence to seize the vehicle on hire.
- The learned trial judge erred in law and on the facts in failing to observe that the plaintiff’s rights to the possession of the vehicle is good against the whole world subject only to the right of seizure reserved in favour of Bentworth Finance (Nigeria) Limited.
- The learned trial judge erred in law in failing to observe that the alleged assignment of the contractual rights of Bentworth Finance (Nigeria) Limited was made specifically subject to the rights and interest of Bentworth Finance (Nigeria) Limited under the Hire Purchase Agreement.
- The learned trial judge erred in law and on the facts in holding that if the plaintiff succeeds he would only be entitled to N1,000 damages when the plaintiff’s evidence regarding the question of damages was not challenged in cross-examination and he was in any event entitled to far more substantial damages.”
Mr. Balogun, learned counsel for the appellant, began by arguing ground 3, the gravamen of his complaint being that the agreement (Ex. L) was not signed by the defendants, though it was signed by the plaintiff as the party to be charged. He submitted that this failure on the part of the defendants was fatal to their case and cited Goodes’s Hire Purchase Law and Practice, 2nd Edition, at pp. 159 & 160 which, it is to be observed, deals with the English Hire Purchase Acts. Mr. Balogun further submitted that section 2(2) of our Hire Purchase Act, 1965 requires that the hire purchase agreement be signed by both the hirer and the owner, and that Ex. L does not satisfy this requirement. With respect to ground 2, the learned counsel also submitted that Ex. L is inadmissible in law because it was not specifically pleaded by the defendants and therefore any evidence that might have been given at the trial must be regarded as going to no issue.
He maintained that an examination of the pleadings by both sides shows that the agreement (Ex. L) was mentioned only indirectly in paragraph 13 of the Statement of Defence which reads as follows:
“On the 20th of January, 1965, the plaintiff agreed inter alia that on the vehicle being released to him by the Defendants, the Plaintiff shall pay a monthly sum of 168 Pence from 22nd February, 1965 until the aforesaid balance paid to the Bentworth Finance (Nigeria) Limited was repaid to the Defendants.”
We, however, draw the attention of learned counsel to paragraphs 4 and 10 of the Statement of Defence which read as follows:
“4. In reply to Paragraph 3 of the Statement of Claim, the Defendants content that Bentworth Finance (Nigeria) Limited agreed to enter into a hire purchase agreement with the Plaintiff on a particular recourse agreement with the Defendants.
- When the falsehood of the Plaintiff’s misrepresentation was discovered, the Bentworth Finance (Nigeria) Limited called on the Defendants to pay to them under the aforesaid recourse agreement the balance of Plaintiff’s hire-rentals and charges.”
We think that in view of these averments in the Statement of Defence as well as on the basis of the evidence led, the contention of learned counsel for the appellant would not appear to be well-founded.
Mr. Balogun, after arguing generally his other grounds of appeal, next turned to the first ground to the effect that the judgment is against the weight of evidence. His first submission is that there is no document giving any enforceable right to the Defendants to seize the vehicle as they did after the purported assignment to them by Bentworth. It was this submission that Bentworth were alone entitled to exercise their personal right of sale and that they should have done this before purporting to assign the debt to the Defendants; and that the Defendants could not accordingly exercise a right of seizure under the deed of assignment. Learned counsel again referred to the question of damages as to which, according to him, there was no evidence by the defendants against the plaintiff’s claims, the several items claimed not having been anywhere challenged. We find the submission of learned counsel in this respect difficult to accept because, if the plaintiff was in fact making 280 Pounds net profit per month as he claimed, he should not have been always in arrears with his installment payments, a fact which made it necessary for the vehicle to be seized by the defendants. Learned counsel finally submitted that, if the court should hold that the plaintiff was entitled to damages, it should itself proceed to ascertain and determine the amount and need not remit the case to the lower court for that purpose.
Mr. Sasegbon, learned counsel for the defendants, in his reply to the appellant’s argument that the defendants failed to execute Ex. L, submitted that failure by one of the parties to execute the agreement is not fatal because section 2(2) of the Hire Purchase Act 1965 does not apply at all to this transaction. His reason is that that Act was brought into operation by the Hire Purchase (Appointed Day) Order 1968 on October 1, 1968, whereas the whole transaction relating to the purchase of the vehicle took place and was concluded between 1964 and 1965. He pointed out that if the agreement between the respondents and the appellant was examined, it would be found that the appellant’s signature and handwriting indicate that the agreement was executed by him on January 20, 1965; and that evidence was led to establish that the whole transaction was concluded before the end of 1965.
According to learned counsel, since the Act of 1965 does not apply, then failure on the part of the defendants to sign the agreement is not fatal to the case. He therefore submitted that the defendants have a right under the common law to sue” in respect of this transaction on the ground of the subsequent conduct of the defendants. He maintained that the appellant signified his acceptance of the agreement by appending his signature to it and also by his payment thereunder of at least three installments before the default arose. He referred us to Alexander Brogden & Ors. v. Directors of Metropolitan Railway Company (1876-77) 2 App. Cas. 666 in which an agreement between the parties for the supply of coal was enforced. It was held that the actual conduct of the parties whereby the party to be charged wrote the word “approved” at the end of a draft agreement established the existence of a contract and that, there having been a clear breach of it, that party must be held liable upon it.
In that case, it was pointed out that a mere mental assent to the terms stated in a proposed contract would not be binding but since the plaintiff acted upon those terms by sending coal and at prices mentioned in it, the plaintiff must seemed to have adopted the contract as a valid one. We think that the present case is even stronger in that it was the appellant’s signature that was affixed to the agreement, not a mere writing of the word “approved”.
That there can be an implied adoption of an agreement by the subsequent conduct of the parties in their dealing with each other is borne out by the following passage from the judgment of Lord Evershed, M.R., in McDonald v. John Twiname Ltd. (1953) 2 Q.B. 304, at p. 314:
“The facts show that the original so-called ‘deed’ was executed as such by the plaintiff and by his father, but was not executed as a deed by the master. From the date of its execution, however, it seems to me plain that the defendants regarded themselves as governed in their relations to the plaintiff by the terms of the deed, and they took the benefit of it and of such services as he rendered, as is shown by the circumstances that the defendants supported the apprentice’s application for deferment. On those facts I think that the two cases which Mr. Thompson cited in opening, Rex v. St. Peters-on-the-Hill (1741) 2 Bott’s Poor Laws 367 and Rex v. Fleet (1777) 2 Bott’s Poor Laws 371 are authority for the view that though the defendants did not execute this deed, they must be treated as bound by it, as if they had executed it.”
As regards the appellant’s denial of any direct transaction between him and the defendants, we agree with the learned trial judge when he drew attention to the plaintiff’s letter dated January 21, 1964 in which the plaintiff wrote as follows:
“Delivery of the above vehicle, which is the subject of a hire purchase proposal to Bentworth Finance (Nig.) Ltd., has been taken on the understanding that it remains the property of Niger Motors Limited until such time as the proposal has been accepted and that in the event of the proposal not being accepted by Bentworth Finance (Nig.) Ltd., I undertake to return the vehicle forthwith to you.”
We are accordingly of the view that the Hire Purchase Act 1965 has no application whatsoever to the present transaction and that the agreement between the appellant and the defendants, even that not signed by the defendants, is binding on the appellant so as to entitle the defendants to seize the vehicle as they did.In the result, the appeal fails and it is dismissed. We award costs assessed at N108 to the respondents.
Other Citation: (1974) LCN/1780(SC)
