Adedeji & Sons Motors Nigeria Limited V. Chief Robert Ogboze Immeh & Anor (1996)
LawGlobal-Hub Lead Judgment Report
AKINTAN, J.C.A.
This is an appeal from the judgment of Fawehinmi, J., delivered at Ikare High Court in Ondo State on 13/5/93. The appellant was the plaintiff at the trial while the respondents were the defendants. The plaintiff’s claim at the trial as endorsed on the writ of summons is as follows:-
- The plaintiff’s claim against the defendants jointly and severally is for the sum of N39,750.00 (Thirty-nine thousand, seven hundred and fifty naira) being money due to have been paid by the defendants to the plaintiff at Ikare -Akoko since 1983 as balance of purchase price of various motor vehicles sold to the defendants by the plaintiff. The second defendant being the Guarantor to the first defendant in an Agreement dated 20th July, 1982 executed by the plaintiff and the defendants for the payment of the debt.”
Pleadings were filed and exchanged. The plaintiff pleaded, inter alia, in paragraphs 5, 6 and 7 of its amended statement of claim as follows:-
“5. The first defendant at various times between 1981 and 1982 bought the various motor vehicles registered as follows:- BD 3263 BD, BD 3376 BD, BD 3529 BD, BD 7925 J, BD 7977 J, BD 4994 BD, BD 1165 WA, BD 1252 WA, BD 5627 BD, BD 8420 J, BD 6746 BD, BD 7953 C, BD 5842 BB, BD 9322 J, BD 8900 J, BD 9557 J and BD 1266 BD from the plaintiff on hire purchase basis at Ikare Akoko, Ondo State.
- The plaintiff hereby pleads the hire purchase agreement with the Hire Purchase Agreement Control Sheets, and shall rely on them at the hearing of this suit.
- As time went on the first defendant defaulted in paying his Hire Purchase instalments as agreed and in consequence his indebtedness on the said various vehicles to the plaintiff rose to the tune of N45,040.00 which he failed to pay despite demands.”
The respondents as defendants filed a joint amended statement of defence in which they denied liabilities for the claim and the 1st defendant counter-claimed for a total sum of N30,890.00. The break down of the counter claim was set out in paragraph 24 of their amended statement of defence and counter claim.
The case suffered chequered history during the trial in that it was struck out twice for want of prosecution but was later restored to the cause list. The trial eventually started and the plaintiff called 2 witnesses and thereafter failed to show up to continue the case for the plaintiff. When the court found that the plaintiff did not show up after 2 adjournments to continue its case, learned counsel for the defendants moved the court for an order dismissing the claim for want of prosecution. He also applied to withdraw the defendants’ counter-claim. The learned trial Judge upheld the request and entered judgment in the case as follows:-
“Clearly the plaintiffs are no longer interested in pursuing their case to finality. In the prevailing circumstance, plaintiffs’ action is dismissed on merit. Defendants’ counter-claim is hereby struck out. I award N1,250 costs in favour of the defendants jointly and severally as against the plaintiffs. As regards the issue of the counter-claim, no order with respect to issue of costs is made.”
The plaintiff was dissatisfied with the judgment of the court and has appealed against it to this court. One ground of the appeal was filed against the judgment.
The ground of appeal with its particulars reads thus:-
“(i) The learned trial Judge erred in law to have dismissed the appellant’s case without considering the evidence so far adduced.
Particulars of Error
(a) The reason adduced by the learned trial Judge was not sufficient reason to dismiss the plaintiff’s claim who had given evidence.
(b) The evidence so far adduced was sufficient to earn the plaintiff judgment against the defendants who have not adduced any evidence.”
The parties filed their briefs in this court. The following issue was formulated for determination in the appellant’s brief:-
“Whether the trial court was right in dismissing the plaintiff/appellant’s case on the reason he adduced without considering the evidence so far led.”
The respondents on the other hand, formulated a similar issue in the respondents’ brief but with slight modification. It reads thus:-
“Whether the learned trial Judge was right in dismissing the plaintiff/appellant’s case on the basis of the pleadings and evidence before him.”
The main contention in the appellant’s brief was that the trial court was wrong to have dismissed the appellant’s case without considering the evidence before it. Reliance was placed on the evidence of the 2 witnesses that have testified before the court and it was submitted that had the learned trial Judge considered the evidence led so far by the plaintiff, as well as the exhibit tendered, the conclusion reached by the learned trial Judge would not have been a mere dismissal of the whole case. This is because the evidence led so far was said to be sufficient to warrant entering judgment for the plaintiff.
In reply, it was submitted in the respondents’ brief that the entire claim, as framed, was defective. This is because although the claim was for special damages, no particulars of such special damages was set out in the claim. Similarly the evidence adduced by Stephen Okode (P.W.1) was not sufficient to support the claim. This is because he failed to particularise or give details of how they came by the sum the plaintiff claimed.
Stephen Okode (P.W.1) told the court, inter alia, in the course of his evidence that he was the Manager of the plaintiff company. He said further that the transaction that led to the institution of this claim took place between 1981 and 1982 and that it was between his company and the 1st defendant. The 2nd defendant later came into the matter when he guaranteed the 1st defendant’s indebtedness to his company. The plaintiff company was a dealer in Motor vehicles. The witness told the court further that his company sold some vehicles to the 1st defendant and that the man made a deposit of N2,000.00 for all the vehicles he negotiated for. He further told the court that 17 motor vehicles of assorted models were involved in all and that his company entered into written agreements with the 1st defendant during the negotiations. The witness tendered 2 sets of 10 documents which he claimed were signed by the 1st defendant in relation to 10 of the vehicles alleged to have been sold to the 1st defendant. The 2 sets of 10 documents were admitted at the trial as Exhibits A to A9 and AA – AA9 respectively. Another 2 sets of 7 documents produced in respect of 7 other motor vehicles were also tendered and admitted as Exhibits B to B6 and BB to BB6 respectively.
The witness also claimed in his evidence that the sales made to the 1st defendant were under hire purchase agreements. The 1st defendant was said to have defaulted in carrying out his obligations under the agreement he entered into with the plaintiff company. The witness said further as follows:”
As a result of the breach, he came to us to plead for way and manner the terms of payment of what he owed could be eased … At the time he came to us, he was owing N45,040.00. That was in 1982 he came to us on that issue.”
The witness further told the court that the 1st defendant gave them post-dated cheques in a bid to liquidate his indebtedness to his company. The cheques were said to be 10 in all and they were all drawn on African Continental Bank, Benin City, Branch. None of the 10 cheques was honoured when presented to the bank. The witness admitted that his company seized some of the vehicles from the 1st defendant. But he did not give the details of any of the vehicles seized.
Similarly, the witness failed to tell the court the particulars of the vehicles sold and how much the 1st defendant was owing on any of the vehicles sold to him or how the plaintiff came by the sum of N39,750.00 being claimed by his company in their writ before the court or how the sum of N45,040.00 which he told the court that the 1st defendant was owing as at the time he came to them in 1982 came to be reduced to N39,750.00 which his company was now claiming. However, he admitted that the 1st defendant paid them N1,500.00 in cash at Ikare police station when they reported the matter to the police. The witness also admitted before the court that he did not know when any of the Exhibits he tendered was made by the defendants and his company.
The other witness called by the plaintiff in support of its claim was Gbenga Ogundare. This witness told the court that he was a member of staff of the Co-operative Bank, Ikare. His evidence was that each of the 10 cheques issued by the 1st defendant to the plaintiff was dishonoured when presented for payment.
After Gbenga Ogundare completed his evidence on 17/11/92, further hearing in the matter was adjourned to 23/2/93. On that day, the parties were not in court and the case was again adjourned to 22/4/93 for further hearing. The court ordered fresh hearing notices to be issued to the parties.
On 22/4/93, the 1st defendant was present together with his counsel. But the plaintiff and his counsel were absent. The case was again adjourned to 13/5/93 and the court ordered fresh hearing notice to be issued on the plaintiff. When the case came up on 13/5/93, the 1st defendant and his counsel were again present. But the plaintiff and his counsel were also absent. There was, however, affidavit of service of the hearing notice issued to the plaintiff in the court’s file. It was on this occasion that Dr. Onaghize, learned counsel for the defendants moved the court that the plaintiffs case be dismissed for want of diligent prosecution and he also applied to withdraw the counter-claim. It was this application that the learned Judge granted and gave the aforementioned judgment in the matter.
As already mentioned above, the gravamen of appellant’s case was that the court ought not to have dismissed the plaintiff’s case. Rather, the court ought to have entered judgment in favour of the plaintiff having regard to the evidence led by the plaintiff so far in the matter. It is clear from the claim that what the plaintiff was claiming from the 1st defendant was what was outstanding on vehicles sold and delivered by the plaintiff to the 1st defendant. The claim therefore is not one for General Damages. It is a claim for special damages.
The law is trite that items of claim constituting special damages have to be particularised in the plaintiff’s pleading. See Odumosu v. A.C.B. Limited (1976) 11 S.C. 55 at 69; Aguda Practice and Procedure of the Supreme Court, Court of Appeal, and High Court of Nigeria. (1980) Para. 18.49, page 235 and McGregor on Damages 14th Edition, para. 1505, pages 1015 to 1016.
The plaintiff’s claim already quoted above, as well as the purported particulars of the claim also already quoted above which amounted to all the particulars given about the plaintiff’s claim, is definitely not sufficient particulars required in a claim for special damages as in the instant case. Although the registration numbers of the vehicles said to have been sold to the 1st defendant were set out in paragraph 5 of the plaintiff’s amended statement of claim, the amount owed on each of the vehicles sold by plaintiff was not disclosed in the plaintiff’s pleading. The particulars of the 1st defendant’s indebtedness was also never pleaded.
It is also trite law that the evidence in proof of special damages must show the same particularity as is necessary for its pleading. It should therefore normally consist of evidence of particular losses. See Radcliffe v. Evans (1892) 2 Q.B. 524; and McGregor on Damages, supra, paras. 1527 and 1528 at page 1028.Applying the law as declared above to the evidence led in the instant case, it is definitely clear that from the evidence given in support of the claim, the plaintiff failed to specify and particularise the details as to how the sum claim arose. It is therefore erroneous on the part of the appellant to hold that the evidence led in support of the plaintiff’s claim was sufficient to warrant the court entering judgment in its favour. The claim therefore, from both the pleading as well as the evidence led in support, was incurably defective. The learned trial Judge therefore acted within the law by dismissing the claim as he did in the instant case when the plaintiff failed to continue with his case before the court. There is therefore no merit in this appeal and I accordingly dismiss it with N1,500.00 costs in favour of the respondents.
Other Citations: (1996)LCN/0242(CA)
