Alhaji M. Salaudeen & Anor V. Mr. Samuel Oladele (2002)
LawGlobal-Hub Lead Judgment Report
AMAIZU, J.C.A.
In this suit which commenced in Ilorin Judicial Division of the Kwara State High Court, the plaintiff claimed against the defendants the following reliefs,
(1) A declaration that the seizure of the Toyota Ace Bus Registration No. XA 122 KAB (formerly KW 9813 AD) on 20th December, 1999 by the agent of the defendants from the plaintiff is wrongful, illegal and a breach of contract.
(2) An order of the court directing the defendants to pay over to the plaintiff the sum of N 195,000.00 (one hundred and ninety five thousand naira) being the deposit and the instalments paid on the said vehicle arising out of a breach by the defendants of a hire purchase agreement entered into by the plaintiff and the defendants on 4th March, 1997 in respect of the said Toyota Lite Ace Bus.
(3) The sum of N58,925 (fifty eight thousand, nine hundred and twenty five naira) being the cost of repairs and maintenance incurred by the plaintiff on the said vehicle.
(4) Loss of earnings at the rate of N200.00 per day from the 21st day of December, 1999 until judgment is delivered.
Pleadings were duly filed and exchanged by the parties. The defendants in their joint statement of defence counter-claimed as follows:
(1) Amount due on the vehincle – N65,060
(2) Ilorin – Ado Ekiti by the agent and the apprentice 2,500
(3) Ilorin – Abuja by agent and apprentice 5,000
(4) Ilorin – Lagos by agent and brother of plaintiff 5,000
(5) Seizers fees – 5,000
Total N82,560
General damages – 50,210
132,770
Briefly, the facts leading to this appeal as can be gleaned from the pleadings and the record of proceedings are as follows:
The plaintiff is a transporter. The second defendant is a private limited liability company. The first defendant is the Managing Director and Chief Executive of the company. Some time in March 1997, the plaintiff and the second defendant entered into a hire purchase agreement in respect of a Toyota Lite Ace Bus with registration number XA 122 KAB. The plaintiff made a down payment of N140,000. The total cost is N260,000. It was agreed that the plaintiff would liquidate the balance of N120,000 by eight regular and consecutive monthly instalments of N15,000. The plaintiff therefore took delivery of the vehicle.
The parties did not sign any hire purchase agreement. The plaintiff was however given a hire purchase control card wherein all his payments were to be entered.
It is the evidence of the plaintiff that he was told that he would be given his copy of the hire purchase agreement after he had completed payment. On the other hand, the 1st defendant claimed that after the plaintiff had taken delivery of the bus, he paid the first instalment of N 15,000. He promised to liquidate the balance in one swoop from his entitlements from his former employer, the Coca Cola company.
On 21/12/99, the agent of the 2nd defendant forcefully took the vehicle from the plaintiff at a Lagos park. From the records, the plaintiff had then paid a total of N195,000, leaving a balance of N65,000. Because of this, the plaintiff instructed a lawyer to write the defendants demanding the refund of the N 195,000 which he had paid on the Bus. It is common ground that at that time, the plaintiff was in arrears of at least 3 instalmental payments. The suit in the lower court was instituted when the defendants failed to refund the N195,000.
At the trial, the plaintiff gave evidence and called no witness.
The 1st defendant gave evidence and called two witnesses. The learned counsel for the parties thereafter submitted their written addresses to the court.
The learned trial Judge after a careful review of the evidence adduced by the parties gave her judgment partly as follows:-
“In conclusion the plaintiff’s claim partly succeeds and he is awarded the sum of N195,000as money had and received by the 1st defendant and N200 per day for 2 weeks (i.e., 14 days) making a total of N197,800.
It is noted that there is no evidence by the plaintiff touching on the 2nd defendant which is therefore deemed abandoned. The claim against the 2nd defendant is therefore dismissed. And the counter-claim is also dismissed.”
The 1st defendant now the appellant was dissatisfied with the judgment. He has appealed to this court, he filed nine grounds of appeal from which he distilled the following five issues for determination, namely:
- Whether, where the respondent had admitted in evidence and pleading that he defaulted in paying his monthly instalmental payments under the Hire Purchase Agreement, is the appellant not entitled to determine the said Hire Purchase Agreement.
- Whether, where the Hire Purchase Agreement is lawfully determined by the owner is the hirer entitled to a refund of all the money he has paid to the appellant.
- Whether the appellant is entitled to the counter-claim from the respondents.
- Whether the act of the company is binding on the director so as to make the Director personally liable for the act of the company.
- Whether the learned trial Judge was right in failing to make a finding on the issue of the vehicle in question.
The respondent also formulated five issues which but for the language used boil down to the above five issues. I therefore do not intend to reproduce the issues in this judgment.
It is observed that the respondent incorporated in his brief of argument a Notice of a Preliminary Objection. In the said notice, this court was urged to strike out the grounds of appeal filed by the appellant as being incompetent. It is the view of Olatunde Esq., of counsel that all the nine grounds of appeal are on issue of facts or issue of mixed law and fact which, he contended require leave of the lower court or this court before they are filed.
I consider the objections very fundamental as they query the competence of the grounds of appeal filed by the appellant. I will therefore first, consider the objections because if I agree with the objections the affected grounds would be struck out, including, the issues formulated there from.
Arguing the preliminary objections, Olatunde Esq., of counsel, submitted that the grounds of appeal contravened the provisions of section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria. This is because, the learned counsel further submitted that the appellant did not obtain leave of the lower court or this court before filing the appeal. He referred to a number of authorities including :-
Amuda v. Adelodun (1994) 8 NWLR (Pt. 360) 23 Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484
Ojukwu v. Onyeador (1991) 7 NWLR (Pt. 203) 286
Continuing, the learned counsel submitted that the complaint that the learned trial Judge misconstrued both the evidence and the defence of the defendants is a ground of mixed law and fact. He cited Jov v. Dom (1999) 9 NWLR (Pt. 620) 538.
It is the view of the learned counsel that grounds 2, 3, 4,5,6,8 and 9 are all premised on issues of facts or mixed law and fact. He relied on the case of Comex Ltd. v. NAB Ltd. (1997) 3 NWLR (Pt. 497) 643. It is further the view of the learned counsel that ground 5 violated the provisions of Order 3 rule 3(2) of the Court of Appeal Rules (1981) as amended. The ground, the learned counsel submitted, should have contained the particulars of the error in law complained about. He relied on the case of Abolarin v. Chairman Rent Tribunal No.3 (1998) 1 NWLR (Pt. 533) 273 CA. He observed that even the grounds where the particulars of the error in law or misdirection are stated, the passages in the judgment where the misdirection or error in law is alleged to have occurred are not quoted.
The learned counsel further submitted that the particulars in grounds 1, 2, 3, 4,6,7, 8 and 9 are all narrations and arguments thus offending the provisions of Order 3 rule 2(2) of the Court of Appeal Rules. He relied on Adah v. Adah (1998) 6 NWLR (Pt. 552) 97; NSCOR 487 at 500.
In the learned counsel’s view ground 7 does not flow from the judgment and consequently is not competent. He observed that the issue or complaint in ground 7 was never raised before the lower court. He submitted that before a fresh issue could be raised leave of the court should be sought and obtained. He relied on:
Enigwe v. Akaigwe (1992) 2 NWLR (Pt. 225) 505; (1992) 2 SCNJ (Pt. 11) 316 Global Transport Oceanic S.A. & Anor v. Free Enterprises Nig. Ltd. (2001) 5 NWLR (Pt. 706) 426; 5 NSCOR 487 at 500
Finally, the learned counsel urged the court to strike out the issues formulated from the incompetent grounds.
The appellant filed a reply brief. In the said brief, he addressed the points raised in the respondent’s brief. He urged the court to dismiss the preliminary objection as being misconceived. It is his view that the grounds of appeal filed by the appellant are on questions of law alone.
It is his view that as this is a final judgment no leave of court is required.
The learned counsel reminded the court that in determining the issue of the competence of a ground of appeal, the ground and its particulars must be read together. The body of the ground is therefore not to be considered in isolation from its particulars. He urged the court to hold that the grounds of appeal as formulated are competent.
A ground of appeal by its nature is the reason why a decision of a court is considered by the aggrieved party to be wrong. In determining whether a ground of appeal is competent, a court should not be influenced by how the ground is christened by the learned counsel for the appellant. The court should look at what the ground complained about.
It is now generally accepted that where the ground of appeal is based on allegation of errors decided from conclusion on undisputed facts it is a ground of law. Where on the other hand, the error of law is founded on disputed facts calling into question the correctness of the facts determined, it is a question of mixed law and fact. This is because the latter case is a conclusion of law coupled with the exercise of discretion. ACB Plc v. Obmiami Brick & Stone (Nig.) Ltd. (1993) 5 NWLR (Pt. 294) 399.
In the present suit ground 1 with its particulars reads:
“The learned trial Judge erred in law when she misconstrued both the pleadings and defence of the defendant and thereby came to a wrong decision in the matter.
Particulars
- It is not competent for the court to misconstrue the case presented and fought before it.
- The trial Judge merely gloss (sic) over the defence successfully put forward before her by the defendants.”
In addition to my earlier observation on when a ground of appeal is that of an error in law or of mixed law and fact, it is necessary for a ground that is based on error of law, to be a valid ground, to comply with the following conditions namely:
- the passage in the judgment where the error is alleged to have occurred must be quoted.
- the nature of the error must be specified
- the particulars of the alleged error must be given
In the light of the foregoing, even if grounds 1 and 2 are on error of law, they do not specify the nature of the error, consequently they are invalid.
They are struck out. The same goes with the issue or issues formulated from them. In my respectful view, the other grounds are valid.
It does seem to me that this appeal can be resolved on the following two grounds:
- Whether, where the Hire Purchase Agreement is lawfully determined by the owner, the hirer is entitled to a refund of all the money he has paid to the appellant before the said lawful determination of the agreement?
- Whether the appellant is entitled to the counter-claim from the respondent?
On issue 1, Ogunyemi Esq., of counsel observed that all that the respondent paid to the appellant was the sum of N55,000. The respondent was in arrears of more than three monthly instalments.
The learned counsel referred to section 9 of the Hire Purchase Amendment Act, 1970 and also to the case of Ebohimi Omoijuanfo v. Nigerian Technical Coy. Ltd. (1976) 1 All NLR (pt. 1) 369. He observed that the Supreme Court held in the case that:-
” … It is therefore clear to me that not withstanding that fact that three fifths of the hire purchase price had
been paid the owner of a vehicle has authority to repossess the vehicle under the law if there is default in
the payment of three instalments …”
The learned counsel reminded the court that the seized vehicle is parked in the premises of the appellant. He submitted that the lower court erred when it held that the appellant should have filed a court action before re-possessing the vehicle from the respondent since he has paid 3/5 of the purchase price. He urged the court to answer issue 1 in the negative. And resolve the issue in favour of the appellant.
In his reply, Olatunde Esq., of counsel submitted that there is evidence that the respondent paid the appellant a total sum of N195,000.00. The balance was therefore N65,000. He submitted that the appellant should not have seized the vehicle after the respondent had paid him 3/5 of the purchase price, without first going to court. The learned counsel relied on the provisions of section 9(1) & (4) of the Hire Purchase Amendment Act, 1970. The learned counsel observed that under section 9(5) of the Act, the law still recognised the need for an owner of a vehicle who has been paid 3/5 of the purchase price to take a court action before re-possessing the vehicle. He contended that the case of Omoijuanfo v. NTC Ltd. (supra) relied on by the appellant’s counsel is not on all fours with the present case. In his view, the respondent is entitled to the protection offered by section 9(1) of the Act. He further contended that if the Act allows an owner to seize a vehicle after a hirer has paid 3/5 of the purchase price, the provision will work hardship on the hirer.
The learned counsel emphasised that if the whole section 9 is read together, it becomes very obvious that the provision does not take away the need to file a court action before an owner can repossess the vehicle purchased from him under hire purchase agreement. He urged the court to resolve the issue in favour of the respondent.
Before I deal with the submissions of the learned counsel, I wish to refer to part of the judgment of the lower court. it reads:-
” … So I hold that there is a Hire Purchase Agreement between the parties. (P.94 lines 33 & 34)…. N195,000 is more than 3/5 of N260,000 but having paid only N55,000 for 9 months at N 15,000 per month, the plaintiff has defaulted for more than 3 months instalments. There is no evidence that the 1st defendant filed an action in court before the seizure of the vehicle from the plaintiff. In fact under cross-examination he admitted did not file any action before the recovery, and said he did not know he ought to have do so (sic). The contravention of section 9(2) makes the seizure illegal and I so declare in this case. (P.97 lines 7 – 17).”
In the case of Alhaji Surakatu Amuda & Ors. v. Taiye Oshoboja for Oshoboja Family, (1984) NSCC P. 531, it was held that a judgment of a court in any civil or criminal proceeding including all questions of law and fact decided by that court are valid and effective until they have been set aside by an appellate court. This court is bound by the above findings as the appellant has not appealed against them. In my view, the findings are:
- There is a hire purchase agreement between the parties.
- The respondent has paid more than 3/5 of the purchase price.
- The respondent has more than 3 instalments in arrears.
What then are the effects of the above on the transaction between the parties?
In my respectful view, the Supreme Court in the case of Andrew Ebohimi Omoijuanfo v. Nigerian Technical Co. Ltd. (1976) 1 All NLR 369 removed any doubt as to the effect of sub section 5 of section 9 of the Hire Purchase Amendment Act, 1970 on the right of an owner under a hire purchase agreement after the hirer has paid 3/5 of the purchase price and is in arrears of 3 instalments. I hereunder reproduce the relevant part of the said Supreme Court Judgment per Idigbe JSC (as he then was). It reads:
” … We endorse the learned trial Judge’s interpretation of the provisions of sub section (5) of section 9 of the Principal Act as contained in his observations in portions of his judgment quoted above. There is, in our view, no doubt that prior to the amendment introduced by the Amending Act the provisions of section 9 of the Principal Act, worked considerable hardship on the owner of a hired vehicle who, as the law then stood, was unable to repossess the same from a mischievous hirer who having contrived to pay three fifths of the hire purchase price, albeit with considerable difficulty and by irregular instalments even if in breach of the provisions of the hire agreement, deliberately embarks upon complete abuse and misuse of the hired vehicle, until he could bring an application to court pursuant to the provisions of the subsection (1) of that section. It is undoubtedly the intendment of the Legislature, by promulgating Decree No. 23 of 1970, to remedy this situation and give the owner of the hired vehicle the necessary power to repossess and keep the same in a state of repair pending the intervention of the court under the provisions of section 9(1) of S. 9 of the Principal Act.”
It is my view, that on the authority of the above judgment, the fact that the appellant seized the vehicle without a court order does not make the seizure unlawful. If the seizure is lawful the respondent is not entitled to the refund of the N195,000 he paid the appellant or recovery of any loss of earnings arising from the seizure. The issue is therefore resolved in favour of the appellant.
On issue 2, Ogunyemi Esq., of counsel, submitted that a counterclaim in a suit is a separate and independent action. It is his view that a counter-claim does not fail simply because the main action has succeeded. He cited the case of Jeric Nigeria Ltd v. Union Bank (2000) 15NWLR (Pt. 691)447; (2000) 12 SCNJ 184. He contended that as part of the counter-claim was admitted by the respondent, the court should have given judgment for the appellant in respect of the part that was admitted. The learned counsel referred to the evidence on how the appellant spent his money to look for the respondent. He submitted that the appellant is entitled to recover the money from the respondent. He urged the court to resolve the issue in favour of the appellant.
In his reply, Olatunde Esq., of counsel, reminded the court that the counter-claim was dismissed by the lower court. In the learned counsel’s view, the counter-claim as formulated by the appellant is a claim for special damage.
Continuing, the learned counsel submitted that a claim for special damage must be strictly proved. He cited the following cases: Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623; (1989) 6 SCNJ 227.
Anambra State v. Onuselogu Enterprises Ltd (1987) 4 NWLR (Pt.66) 547 11 12 SCNJ 44.
The learned counsel submitted that the appellant did not adduce any convincing evidence in support of the claim. He observed that the evidence adduced in support of the claim is riddled with contradictions. He identified the contradictions in the evidence of DW1 and DW2. Finally, he submitted that from the totality of the evidence adduced in the lower court, it cannot be said that the counterclaim was proved strictly. In the learned counsel’s view the contradictions in the evidence of the appellant and his witnesses weakened the counter-claim of the appellant. He contended that under section 9(2) of the Hire Purchase Act, the moment the appellant terminated the agreement between him and the respondent, the respondent was released from liability. He urged the court to resolve the issue in favour of the respondent.
It has been established that when damages suffered in a suit are real, the party who suffered the damages is entitled to recover the actual amount he spent as special damages. Ekpe v. Fagbemi (1978) 3 SC 209. It is not therefore open to a trial Judge to make his own individual assessment in cases of special damages. He must act strictly on the evidence adduced before him establishing the amount to be awarded. Nigeria Airways Ltd. v. Solomon Abe (1988) 4 NWLR (Pt. 90) 524 CA.
Strict proof in the con of special damages however means no more than proof as would readily lend itself to qualification or assessment. And, if the plaintiff who is supposed to have peculiar knowledge of the special damages gives evidence, and the evidence is uncontroverted, this amounts to proof. West African Shipping Agency Nig. Ltd. v. Alhaji M. Kalu (1978) 3 SC 21.
The appellant gave evidence in chief as follows:
“(Page 4 lines 27 to 36)
In respect of my counter-claim, the balance from the payment is N65,000. My travelling expenses in looking for plaintiff N2,500 (to Ado Ekiti). To Abuja is N5,000. To Lagos to seize the vehicle 2 people went N5,000. The money charged by the man who helped to seize the vehicle is N5,000.The total I am claiming from him now is N82,560.”
In answer to questions put to him, he replied as follows:-
(1) (P. 43 lines 16 and 17). Transportation from Ilorin to Abuja is about N700. I do not know transport fare from Ilorin to Ado Ekiti.
(2) (P. 54 lines 11 to 13) ex. 2 was written by my lawyer. I agree that the amount demanded on my behalf in ex. D by my lawyer is N70,060 as contained in the document.”
One Alhaji Baba Mohammed who testified for the appellant gave evidence as follows:
(1) (Page 55 lines 16 to 18). When we were searching for him, we first went to Ondo State and spent days there searching the whole garage.
(2) (Page 56 lines 1 to 3). We collected N2,000 for Abuja trip. I received N2,000 for Lagos trip. The vehicle is now at 1st defendant’s house.
(3) (Page 57 lines 15 to 17). The person who went to Ondo State and Abuja with me is Dam Zuru. He is also a driver to the employment of 1st (sic). I was the only one who went to Lagos.”
A close examination of the above shows that there are material discrepancies/contradictions in the evidence of the appellant and his witness.
First, the witness claimed that he alone went to Lagos. The appellant’s evidence is that he sent two people. Secondly, the evidence of the appellant is that the fare from Ilorin to Abuja is N700. But the appellant is claiming N5,000.He should have given evidence on how he spent N5,000.Thirdly, it is the evidence of the appellant that he did not know the fare from Ilorin to Ado Ekiti. He should have told the lower court how he spent the N2,500 to Ado Ekiti.
In the light of these and more, the lower court was right in refusing the above counter-claim. I pause here to observe that the parties agree that the respondent is still owing N65,000 on the vehicle.
Subject to the appellant complying with the other provisions of section 9(5) of Act i.e., protecting the vehicle from damage or depreciation, he is entitled to the N65,000.000.The issue is resolved in favour of the appellant.
In conclusion, this appeal succeeds. I make no order as to costs.
Other Citations: 2002)LCN/1159(CA)
