Civil Design Construction Nig. Ltd. V. Scoa Nigeria Limited (2007)

LAWGLOBAL HUB Lead Judgment Report

S. N. ONNOGHEN, J.S.C

This is an appeal against the judgment of the Court of Appeal holden at Lagos in appeal No. CA/L/243/93 delivered on the 9th day of February, 2001 in which the court held as follows:

“1. The plaintiff claim in respect of Rig. No. LA 2632 WD succeeds and the plaintiff is awarded:

(a) The sum of N3,300.000.00 as the market value of the Rig at the date of judgment of the lower court.

(b) N560,000.00 as damages for loss of income on the Rig for 260 days at the rate of N2,000.00 per day.

2. The claims of the plaintiff on rig No. LA 8509 WD are refused as the plaintiff did not show that a Rig is a motor vehicle within the meaning of section 1 of the Hire Purchase Act, Cap. 169.
3. The award of the sum of N319,806.00 on the scrappers are affirmed; and this court sees no reason to award more than that amount.
4. On the counter claim by the defendant, judgment is given in favour of the defendant for the sum of N108,324.16 the breakdown of which is as follows:-

(a) N 100,000.00 being the unpaid balance of the purchase price due on the rig No. LA 8509 WD.

(b) N8,324.16 being cost of repairs and spare parts on the plaintiff’s rig.”

The facts of the case, as can be gathered from the very lengthy and unnecessarily tedious pleadings of the parties include the following:

The plaintiff who is also the appellant before this court, 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 N431,842.00 which the appellant eventually fully paid for thus becoming the owner thereof.

The second transaction between the parties involves a second rig with registration No. LA 8509 WD which the appellant also bought under a Hire Purchase Agreement for the sum of N514,482.00 in respect of which the appellant paid the sum of N100,000.00 being two installments 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 are not disputed by the parties.

There is finally, a third transaction involving scrappers, the facts in relation to which are violently disputed by the parties. It is the appellant’s case that on 26/1/84 and 10/2/84 respectively, it bought a road scrapper each on those dates for the sum of N 159,903.00 and fully paid cash for both. The appellant further contends 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 appellant bought two other scrappers for which no deposit was made but rather, that 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 claiming the following reliefs as per the 3rd amended statement of claim:

“1. DECLARATION that the seizure of the plaintiff’s rigs Nos. LA 2632 WD and LA 8509 WD was wrongful.

2. An inquiry into the current market value of rig No. LA 2632 WD and an award of the said current value of the said rig.
3. The sum of N414,480.00 being money had and RECEIVED by the defendant on rig No. LA 8509 WD before the wrongful seizure plus damages at the rate of N2,000.00 per day from the date of the wrongful seizure, i.e. 29th May, 1984 until payment of the said damages.
4. ALTERNATIVELY, an inquiry into the current market value of the said rig No. LA 8509 WD and an award of the ascertained value as damages.
5. An order directing all necessary inquiries and accounts.
6. The sum of N2,000.00 per day being loss of use of rig No, LA 2632 WD from 1st March, 1984 until the rig is released.
7. An order directing an inquiry into the market value of the above rigs and payment thereof to the plaintiff in lieu of or in addition to return of the rigs.
8. A declaration that the delivery of the plaintiff’s 2 (Nos) Fiat/All-is Motor Scrappers Model 360B to the Sokoto Agricultural Development Project (SADP) by the defendant was wrongful and without the authority of the plaintiff.
9. An order directing the defendant to make a refund of a sum of N319,806. 00 (Three Hundred and Nineteen Thousand, Eight Hundred and Six Naira), being money had and received for the two scrappers sometime in 1984 which the defendants have failed and/or neglected to deliver to the plaintiff and or convel1ed to their use.
10. An order directing all necessary inquiries into the market value of the said scrappers at the date of hearing and/or judgment.
11. An order awarding the market value as damages to the plaintiff less the sum of N319,806.00 aforesaid being damages for conversion and/or detinue”

The respondent counter claimed against the appellant in a statement of defence in which it admitted that rig No. LA 2632 WD belonged to the appellant but contended that appellant sent the said rig to it for repairs in mid February 1984 and used the same as security for outstanding liability for an alleged credit purchase of two additional scrappers which the appellant allegedly instructed the respondent to deliver, in addition to the earlier two scrappers, to the Sokoto Agricultural Development Project. The respondent also claimed N100,000.00 outstanding installments etc, etc.

The trial court found in favour of the appellant except for the claim of N100,000.00 outstanding two installments which it awarded to the respondent. The respondent appealed to the Court of Appeal while the appellant cross appealed against the said decision of the trial court resulting in the judgment now on appeal before this court and being considered in this judgment.

The issues for determination as identified by learned counsel for the appellant, C. EZIKE, Esq in the appellant’s brief of argument filed on 9/8/2001 are as follows:-

“3.01 In the circumstance of this case, and in particular having regard to the issue of estoppel and the presumptions of law that arose in this case, was the Court of Appeal right in holding that the Common Law as opposed to the Hire Purchase Act, (Cap. 169 L.F.N) governs the transaction relating to the motor rig registered as LA 8509 WD

3.02 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

3.03 In the circumstances of this case, what is the correct measure of damages for the seizure of the plaintiff’s rigs

3.04 Was the award of the sum of N108,324.16 to the defendant made on the correct principles of law”

The respondent, on the other hand has cross appealed to this court and in the cross- appellant’s brief of argument filed on 8/3/04 by PRINCE ADESEGUN AJIBOLA, the following issues have been identified for determination:

“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 in-admissible and evidence of fact not pleaded.”

In arguing appellant’s issue 1, learned counsel stated that it is common ground that out of the sum of N514,482.00 hire purchase price for rig No. LA 8509 WD, the appellant had at the time of its repossession by the respondent, paid the sum of N414,482,00 leaving a balance of two instalments of N50,000.00 each; that though the respondent claimed that the hire purchase agreement was governed by the Common Law, the appellant stated that it was governed by the provisions of the Hire Purchase Act, Cap 169 particularly as the rig No, LA 8509 WD is a mechanically propelled vehicle intended or adopted for use on roads and duly registered as a motor vehicle that the trial court rightly held that the transaction in rig No. LA 8509 WD is governed by the Hire Purchase Act, 1965 and submitted further that the Court of Appeal was in error when it reversed that holding by holding that the said transaction was governed by the common law. Learned counsel further submitted that the holding by the Court of Appeal to the effect that exhibit D2 did not incorporate the provisions of the Hire Purchase Act as it did not stipulate that on payment of 3/5th of the purchase price the respondent would not be able to repossess the rig and that the appellant did not call evidence to prove that a rig is the same thing as a motor vehicle are erroneous particularly as they were made without reference to or consideration of the submissions of learned counsel for the appellant before that court. Learned counsel then referred to exhibit D2 and stated that the Statutory Notice requirement of section 2(c) of the Hire Purchase Act and the schedule thereto were complied with by their verbatim reproduction in exhibit D2 and that clause 6 thereof contains “Restrictions of Owners Right To Recover Goods” particularly as it is only in the Act that the right to recover the goods in issue is restricted whereas under the common law, no such restriction exists as long as the hirer is in default of installments; that since appellant paid more than 3/5th of the price it was wrong for the respondent to have recovered the rig.

Submitting in the alternative, learned counsel stated that granted, without conceding that it is the common law that applies to the transaction, the result would still be the same as the respondent cannot recover the rig after the appellant had paid 50% or 60% of the purchase price without recourse to the court, which was never done in this case.

On the sub-issue as to whether the appellant called evidence to prove that a rig is the same thing as motor vehicle, learned counsel referred the court to page 921 of the record where the Court of Appeal found “that under cross examination, DW1 gave evidence suggesting that the rig No. LA 8509 WD was generally treated as if it was a motor vehicle,” and submitted that the above finding amounts to finding that the said rig is a motor vehicle, that the respondent is estopped from denying that the said rig is a motor vehicle having by itself registered it as a motor vehicle with the motor Licensing Authority, insured same, obtaining a road worthiness certificate for same and having previously treated exhibit P as an agreement under the Act and Rig No. LA 2632 WD as a motor vehicle, that the case of Burns v. Currell (1963) 2 All E.R 297 supports the view that the said rig is a motor vehicle.

On his part, learned counsel for the respondent in the respondent’s brief deemed filed on 27/4/05 formulated two issues in respect of the appeal by the appellant. The issues are as follows.

“1. Whether the Court of Appeal was right in holding that the provisions of the Hire Purchase Act do not apply to the transaction in respect of water Rig No. LA 8509 WD.

2. Whether the award of the sum of N108,324.16 to the defendant by the Court of Appeal was properly made in line with the principles of law’”

It is clear that appellant’s issues 1 and 4 are the same or similar to respondents issues 1 & 2. However, in relation to issue No.1, learned counsel for the respondent submitted that it is the case of the respondent that the rig was voluntarily surrendered to the respondent by the appellant; that even if the version of the appellant that the rig was seized by the respondent is accepted, the seizure is not unlawful considering the applicability of the provisions of the Hire Purchase Act, 1990. Learned counsel urged the court not to disturb the finding by the Court of Appeal that the transaction in issue is outside the contemplation of the Hire Purchase Act. Learned Counsel referred the court to sections 1(a), 9(1) and (5) of the Hire Purchase Act as well as section 20(1) thereof and submitted that appellant failed to prove that rig No. LA 8509 WD is a motor vehicle under the Hire Purchase Act. Counsel referred to Burns v. Currell supra, Daley v. Hargreaves (1961) 1 All ER 552 and Macdonald v. Carmicheal (1911) S.C (1) 27 and submitted that rig No. LA 8509 WD is not a motor vehicle within the Act; that the fact that exhibit D2 does not stipulate that the respondent would not reposes as provided under section 9(1) of the Hire Purchase Act upon payment of 3/5th of the purchase price by the appellant confirms the intention of the parties to take the transaction outside the purview of the Hire Purchase Act; that since it is the intention of the parties that the transaction be governed by the common law and it is not disputed that appellant had defaulted in the payment of installments, the agreement is therefore determined, relying on Atere v. Amao (1957) WNLR 176, Learned counsel therefore urged the court to resolve the issue against the appellant.

Section 1 of the Hire Purchase Act, provides as follows: –

“Subject to the provisions of section 19 of this Act, the provisions of this Act (other than the provisions relating to the control of advertisements) shall apply in relation to –

(a) all hire-purchase agreements and credit-sale agreements (other than agreements in respect of motor vehicles) under which the hire-purchase price or total purchase price, as the case may be, does not exceed two thousand naira …”

The question is whether the rig No. LA 8509 WD is a motor vehicle within the contemplation of the Hire Purchase Act or not. The trial court found that it is while the Court of Appeal said it is not. To answer the question, one has to look at the provisions of the Hire Purchase Act so as to know what the Act recognises as a motor vehicle. In that respect, section 20(1) of the Hire Purchase Act is very relevant. It defines the term as follows:-

“”Motor vehicle” means a mechanically propelled vehicle intended or adapted for use on roads or for use

for agricultural purposes.”

There is no dispute that the rig LA 8509 WD is mounted on a chassis, registered with the Motor Licensing Authority given a certificate of road worthiness and insured. Also not disputed is the fact that it is driven by a driver from point to point. Equally not disputed is the fact that the registration, insurance etc were done by the respondent.

PW1 stated at pages 226-227 that:-

“DH 60 Ingersol Ran Cyelone Drilling machine is mounted on a chassis like a water Tanker and it is called a Derick. The rigs were duly registered with a Motor Licensing Authority. The registration was done by the defendant.”

DW 1 stated at page 277 thus:

“Ingersole Waterwell rig is not a motor vehicle. But each has to be registered with the licensing authority.

There must be Motor Vehicle Insurance for them. There must be a road worthiness certificate. There is a vehicle license. It is driven by a driver …”

In paragraph 43 of the plaintiff’s reply and defence to the counter claim, the plaintiff pleaded inter alia:

“…the rig therein is a mechanically propelled vehicle intended or adapted for use on roads duly registered as a motor vehicle with the licensing authority by the defendants and contrary to the defendants … Is covered by Hire Purchase Act, (1915). The defendants are herein given notice to produce the original hire purchase agreements between the parties herein and numbered 7/T4600297/83 and 14/T4600291/82.”

In resolving the issue “were the purchase and sale governed by Hire Purchase Act 1965” The learned trial Judge at page 437 stated thus:

“…In resolving this issue, the question I ask is – What is the intention of the parties Is there any consensus ad idem The answers are that it was the intention of the parties that this transaction should be governed by Hire Purchase Act, 1965 and the minds of the parties meet on this. In my judgment the purchase and sale of the two RIGS were governed by the Hire Purchase Act, 1965. To hold otherwise would involve not only making a new agreement for the parties but also varying the existing agreement. I hold that it will be unjust and inequitable for either party to resile from these agreements exhibit P1 and D2.”

The reaction of the Court of Appeal to the above finding is at pages 919-920 of the record where it stated thus:- “At the trial, the plaintiff did not call any evidence to show that a rig was the same thing as a motor vehicle. The nearest the plaintiff went to showing this was in the testimony of PW 1 at page 226 of the record of proceedings where he said;

“DH 60 Ingersoll that (sic) Cyclone Drilling Machine is mounted on a chassis like a water tanker and it is called Derick. The rigs are duly registered with a Motor Licensing Authority. The registration was done by the defendant…” and therefore concluded that the rig in question is not a motor vehicle and therefore the transaction was governed by the common law instead of the Hire Purchase Act.

However, at page 921 of the record, the Court of Appeal found as follows:-

“I am not unaware that under cross examination, DW1 gave evidence suggesting that the rig No. LA 8509 WD was generally treated as if it was a motor vehicle…”

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 DW 1 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. The piece of evidence is at page 227 of the record and had earlier been reproduced in this judgment. At the risk of repetition I reproduce same hereunder:

“Ingersole Waterwell rig is not a Motor Vehicle. But each has to be registered with the licensing authority. There must be a motor vehicle insurance for them. There must be a road worthiness certificate. There is a vehicle licence. It is driven by a driver.”

To confirm the fact that the above evidence together with other pieces of evidence on record established the fact that the rig was a motor vehicle for the purpose of the Hire Purchase Act, the Court of Appeal found at page 921, also reproduced earlier:

“That under cross examination, DW1 gave evidence suggesting that the rig No. LA 8509 WD was generally treated as if it was a motor vehicle.”

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.

In the case of Dale v. Hargreaves (1961) I 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.”

and I hereby adopt that view as mine in this case. The rig in question is a specialized vehicle duly registered etc, etc.

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.

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 decided by the respondent.

I therefore hold that the Hire Purchase Act applies to the transaction between the paries 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.

On issue No.2, learned counsel for the appellant stated that the lower courts are in agreement that the delivery and sale of appellant’s two scrappers to S.A.D.P was wrongful as the appellant never authorized same; that what constitutes the problem is the amount to award as damages; that having found that the claim of the appellant succeeded in that respect, the trial court ought to have ordered inquiry as to damages as claimed instead of making the order as an alternative to the award of N319,806.00, which was not what the appellant claimed – that the appellant made a cumulative and consecutive claim grounded in conversion. Learned counsel then stated that the Court of Appeal erred in limiting the award, upon appeal, to the sum of N319,806.00 under the impression that appellant had specifically asked for that sum and that appellant had also asked that the scrappers be sold and as such cannot claim on the basis of loss of income.

Learned counsel submitted that as evidenced in paragraphs 34(3), 34(9), 34(10) and 34(11) of the statement of claim, the appellant asked for far much more than the N319,806.00; that the appellant asked for the refund of N319,806.00 purchase price plus an order of inquiry into the current value of the scrappers and the award of the resultant current value as damages less the N319,806.00 purchase price.

Learned counsel further submitted that it is not the defence of the respondent that it sold the scrappers for the appellant but that it delivered same to SADP on the instructions of the appellant. Referring to the case of Stitch v. A-G of the Federation (1986) 12 S.C. 373 at 422 – 423, (1986) 5 NWLR (Pt.46) 1007 learned counsel submitted that the measure of damages for conversion is generally “the value of chattel at the date of conversion together with any consequential damages flowing from the conversion,” and that on the authority of MacGregor on Damages, 14th Edition paragraphs 1056 and 1087 the appellant is entitled to recover in addition to the N319,806.00, the amount by which the market value of the goods have risen between conversion and judgment and that the appellant is entitled to the replacement values of the two scrappers subsequent to the date of the judgment of this court.

I have carefully gone through the respondent’s brief and the cross appellant’s brief filed in this appeal and have not seen where arguments have been proferred by the respondent to counter the submissions of learned counsel for the appellant in respect of issue 2 supra. In fact, the two issues formulated by learned counsel for respondent do not include appellant’s issue 2. However, does it mean that in law the appellant is entitled to the claims as couched

It is not in doubt that both the High Court and the Court of Appeal found as a fact that the appellant’s two scrappers were delivered and sold by the respondent to S.A.D.P. without the authority of the appellant and as such wrongful, and that the appellant’s claim in respect of the scrappers succeeded. The question that follows is the measure of damages recoverable by the appellant in the circumstance.

In paragraph 34 (8), (9) (10) and (11) of the Third Amended Statement of Claim at page 343 of the record, the appellant claimed as follows:-

“(8) A declaration that the delivery of the plaintiff’s 2(No.) Fiat Allis Motor Scrapper Model 360B to the Sokoto Agricultural Development Project (SADP) by the defendant was wrongful and without the authority of the plaintiff.

(9) An order directing the defendants to make a refund of a sum of N319,806.00 (Three Hundred and Nineteen Thousand, Eight Hundred and Six Naira) being money had and received for two Scrappers sometime in 1984 which the defendants have failed and/or neglected to deliver to the plaintiff’s and or converted to their use.

(10) An order directing all necessary inquiries into the market value of the said scrappers at the date of hearing and/or judgment.

(11) An order awarding the market value as damages to plaintiff’s (sic) less the sum of N319,806.00 aforesaid being damages for conversion and/or detinue.”

The claim is therefore a declaration that the delivery of the two scrappers to SADP is wrongful and an order of inquiry into the current value of the scrappers as at the time of judgment and award of the resultant current value as damages less the N319,806,00 which is to be refunded as money had and received.

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.”

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.

On issue No.3, learned counsel referred the court to paragraph 34(7) of the Statement of Claim. As regards rig No. LA 2632 WD which both courts found had been fully paid for by the appellant, learned counsel for the appellant submitted that the court ought to have assessed and awarded or ordered the assessment and award of the value of the rig as at or subsequent to the date of its judgment i.e. Court of Appeal judgment.

With regard to rig No. LA 8509 WD, learned counsel submitted that the lower court was in error when it ordered the refund of the installments already paid as an alternative to an order for inquiry prayed for in paragraph 34(7) of the Statement of Claim and that by the authority of Ayoke v. Bello (1992) 1 NWLR (Pt.218) 380 at 397-405, the appellant is entitled to the return of the said rig or the resultant assessed value in addition to the damages of N2,000.00 per day until payment or return of the said rig as prayed, that since the respondent did not sign exhibit D2 in violation of section 2(2) (a) of the Hire Purchase Act, the consequence is that the counterclaim for the N 100,000.00 balance of installments in respect of the rig in question is unenforceable and that by operation of section 9(2) (a) of the said Act coupled with the fact that appellant had paid more than the relevant proportion of the price before the seizure of the rig, all the appellant’s liabilities under the said exhibit D2 are extinguished, relying on Ayoke v. Bello supra at 401; that the Court of Appeal ought to have awarded the claim of N2,000.00 per day by way of profit until delivery of the rig and not to have limited the award to 260 working days particularly as the appellant claimed the profit per day “from 1st March, 1984 until the rig is released to the plaintiff” and PW1 testified to the fact that appellant’s claim is as per the statement of claim.

In short, learned counsel submitted that appellant is entitled to the replacement values of its rigs, the loss of profit as claimed and generally to be placed in the same position it would have been but for the respondent’s wrongful acts of seizure of the rigs, and urged the court to resolve the issue in favour of the appellant.

Though learned counsel for the respondent did not argue the issue in the respondent’s brief, it was argued as pm1 of the issues in the cross appeal.

Learned counsel for the respondent argued that the Court of Appeal was in error in awarding damages to the appellant when there was no evidence in support of the award, that rig No. LA 2632 WD which both parties agree belongs to the appellant was delivered to the respondent by the appellant as security against the purchase price of two scrappers. Strangely, it is also the submission of counsel for the respondent that the said rig was “traded … for 2 scrappers” appellant needed from the respondent and that exhibit D3 is evidence of the sale of the said rig by the appellant to the respondent. That being the case, learned counsel for the respondent is of the view that appellant is not entitled to any award in respect of LA 2632 WD and that the Court of Appeal was in error when it made an award in respect of same.

It is to be noted that learned counsel for the respondent has not addressed the court in respect of the award in relation to rig No, LA 8509 WD. It should also be noted that the case of the respondent in the pleadings and at the trial is not that the rig in question was sold by the appellant to it.

However, contrary to the conflicting submissions of learned counsel for the respondent that the rig No. LA 2632 WD was delivered by the appellant to the respondent as security for the purchase of two additional scrappers, and at the same time that the said Rig was sold by the appellant to the respondent vide exhibit D3, the respondent admitted in paragraph 5 of its 4th Amended Statement of Defence and counter-claim at page 365 of the record that the said Jig was sent in by the appellant for repairs as pleaded and contended by the appellant throughout the proceeding. The respondent pleaded therein inter alia thus:

“…The defendants admit that the plaintiff had sent the rig pleaded therein for repairs…”

The lower courts found that the appellant neither bought two additional scrappers nor instructed the respondent to deliver any to the SADP. The Court of Appeal specifically found at page 957 of the record that “it is not the case of the defendant that the plaintiff sold rig No. LA 2632 WD to it;” and there is no appeal against that crucial finding of fact which is borne out of the pleadings of the respondent.

From the facts as found by the lower courts, it is clear and I hold that the appellant’s two rigs were wrongfully seized by the respondent and that appellant is entitled to damages for the wrongful act of the respondent and as pleaded in the reliefs in the statement of claim, (as amended) earlier reproduced in this judgment.

In the case of Stitch v. A.-G., Federation (1986) 5 NWLR (Pt.46) 1007, (1986) 17 NSCC 1389 at 1404-1405 this court, per ANIAGOLU, JSC stated the position as regards damages in respect of detinue/conversion in similar circumstance as follows:-

“With regard to CLAIM 3 which reads:

“An order for the release of the said car to the plaintiff on the payment of the said sum”,

The appellant is entitled to the possession of the car but the car the release of which the appellant seeks under that head of claim, is now virtually a wreck – a derelict.

Many of its parts have been sold by the 4th respondent (O. O. Onifade). Many are missing and the car had been, for sometime now, grounded, in the open, without a shelter and subject to the deleterious effects of the elements. For this court to order for the appellant to have delivered to her the car which she brought into the country on 3rd April 1982 would be virtually to order the impossible. But the car was physically there at the Tin Can Island port as a second-hand car in good working condition. It was the Federal Government’s fault – Federal Government personified by 1st and 2nd respondents that the appellant did not get hold of her car. Since the car cannot now realistically be physically delivered to the appellant, she must be entitled to receive from the tortfeasor an amount which will buy her a second-hand Mercedes Benz 280 saloon car in good working-condition, with accessories as contained in the car she imported on 3rd April 1982. Accordingly, in respect of claim 3, it is hereby ordered that that head of claim be remitted to the trial Federal High Court, Lagos, with these directions.

(i) to take evidence as to what a second-hand Mercedes Benz 280 saloon car of the type brought into the country by the appellant on 3rd April 1982, the subject-matter of these proceedings, will cost to purchase now and award the appellant the amount found; and

(ii) the parties will be at liberty to call whatever evidence they consider necessary for the purpose of determining the present cost or value of the car as ordered in (i) above”

On his part, UWAIS JSC (as he then was) at 1406 – 1408 stated the law as follows:-

“Now the misappropriation of goods may result from a number of facts and there are certain differences in relation to damages between actions for conversion and detinue see paragraph 986 of McGregor on Damages, 13th Edition. We have reached the conclusion in this case that it will not be in the interest of justice to make the order for the release of the car because it has been cannibalized and therefore is not the same as the car that the appellant sought to be released to her when she brought the action on 23rd September, 1982.

It is necessary therefore to examine the nature of the appellant’s claim in asking for the release of the car. When the appellant’s action was brought, the car was in possession of the 2nd respondent and the appellant’s claim could only be based on detinue. But at the time we heard the appeal, following the sales to the 3rd and 4th respondent, (sic) conversion of the car by the 2nd respondent had taken place. The question then is: is the appellant’s claim in detinue or conversion This question has to be answered before this court can decide on the remedy to be awarded the appellant. In General and Finance Facilities Limited v. Cooks Cars (Romford) Limited (1963) 1 W.L.R. 644 at p.648, Diplock, L J. (as he then was) differentiated action in conversion from action in detinue as follows:

“There are important distinction between a cause of action in conversion and a cause of action in detinue.

The former is a single wrongful act and the cause of action which accrues at the date of the wrongful refusal to deliver up the goods and continues until delivery up of the goods or judgment in the action for detinue. ” (italics mine).

I accept this exposition of the law. It follows therefore that the appellant’s cause of action in this case is based on detinue and not conversion, which took place long after the action was instituted and the decision of the trial court given. As already pointed out, there are differences in the nature of damages to be awarded in either cause of action in conversion or cause of action in detinue.

Diplock, L. J. dealt with the differences in the General and Finance Facilities Limited case (supra) where he observed as follows on pp. 649-650:

“The action for conversion is a purely personal action and results in a judgment for pecuniary damages only. The judgment is for a single sum of which the measure is generally the value of the chattel at the date of conversion together with any consequential damage flowing from the conversion and not too remote to be recoverable in law..

On the other hand the action in detinue partakes of the nature of an action in rem in which the plaintiff seeks specific restitution of his chattel…

In the result an action in detinue today may result in a judgment in one of three different forms:

(1) for the value of the chattel as assessed and damages for its detention, or

(2) for return of the chattel or recovery of its value as assessed and damages for its detentions: or

(3) for the return of the chattel and damages for its detention.”

In the present case, we have come to the conclusion that the car cannot be returned to the appellant in the state in which it exists now. Instead therefore the appellant is to recover the value of the car. The difficulty which has arisen is: as at what date is the value of the car to be assessed This is not difficult to determine in a normal case. For in Rosenthal v. Aldelton & Sons Limited (1946) 1 K.B. 374 at 377, the Court of Appeal in England said “In an action of detinue the value of the goods claimed but not returned ought, in our judgment, to be assessed as at the date of the judgment or verdict” And the dictum is said in paragraph 218 of McGregor on Damages, 13th Edition to have-

“…established that a plaintiff suing in detinue is entitled to claim, in the absence of a return of the property, the market price at the time of the judgment; thus any rise in the market price between detention and judgment is at the risk of the defendant.”

Again, in the case of General and Finance Facilities Limited (supra) it is observed on page 651 thereof as follows:

“In the ordinary way where an action goes to trial the issues of liability, assessment of value of the chattel, and damages for its detention, are dealt with at the hearing, and final judgment in one or other of the above forms is entered.”

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.”

The above position of the law clearly applies to issues 2 and 3 on damages recoverable in respect of the detinue particularly where the property cannot be returned as in the instant case.

On issue No.4, learned counsel for the appellant submitted that the award of N100, 000.00 outstanding balance on LA 8509 WD was made by the Court of Appeal without considering any of the two statutory defences raised by the appellant which defences constitute complete answer to the claim in question; that the counter claim for the sum of N100,000.00 was unenforceable because by admittedly failing to sign exhibit D2, the respondent breached the mandatory requirement of section 2(2) of the Hire Purchase Act which prohibits the appellant from enforcing any provision of exhibit D2 including recovery of the outstanding balance. For the above submission, learned counsel cited and relied on Ayoke v. Bello (1992) 1 NWLR (Pt. 218) 380 at 309 – 402.

Learned counsel further submitted that by operation of section 9(2)(a) of the Hire Purchase Act, the seizure of the rig after payment of the relevant proportion and without a court order disengages the appellant from all liabilities under exhibit D2; that even under the Common Law the respondent is in breach in that it never obtained a court order before it repossessed the rig in issue. Submitting further in the alternative to applicability of both the Act and the Common Law, learned counsel submitted that common law does not allow over-compensation and as such, the respondent should not be allowed to retain the rig, the N414,480.00 installments already paid thereon and also recover the outstanding N100,000.00; that the proper measure of damages recoverable in such circumstance is as stated in Yeoman Credit Co. v. Waragowski (1961) 3 All ER 145 on the basis of the Hire Purchase price of goods, less

(a) the sums already paid or payable by the Hirer at the moment of termination;

(b) the value of the goods repossessed or if the goods have been sold, the proceeds of the sale;

(c) the amount (if any) payable on the exercise of option to purchase, and

(d) a discount in respect of each return to the owner of his capital outlay.

However, learned counsel for the appellant maintained that the common law principles stated supra do not apply since the transaction is governed by the Hire Purchase Act, as earlier submitted.

On the award of N8,324.16 as cost of repairs and spare parts, learned counsel submitted that the Court of Appeal did not give any reason for the award particularly as the trial court had dismissed same. Learned counsel submitted that since it is common ground that the rig was sent in for servicing in mid February 1984, the contents of exhibit D5-D8 clearly show that they were made before 1984, that though the pleading of the respondent supports the contention that the transaction predates 1984, the argument of learned counsel for the respondent which was also accepted by the Court of Appeal is that the claim was for 1984 repairs. Referring to exhibits D5 – D8 learned counsel submitted that internal documents of the respondent cannot bind the appellant particularly as there is no indication that any officer of the appellant signed the documents, relying on B. Stabilini v. Obasi (1997) 9 NWLR (Pt.520) 293 at 301 and 304; that the evidence of PW3 that the appellant did not receive the services or order the spare pm1 remains unimpeachable; that since the Court of Appeal had not stated that the findings of the trial court in this respect was perverse it was wrong in law for the Court of Appeal to have reversed the said finding, relying on Allied Bank v. Akubueze (1997) 6 NWLR (Pt. 509) 374; Metal Construction v. Aboderin (1998) 8 NWLR (Pt. 563) 538. Learned counsel urged the court to resolve the issue in favour of the appellant and allow the appeal.

On his part, learned counsel for the respondent submitted that an owner in a hire purchase transaction is not barred from suing for arrears of the purchase price from the hirer by reason of his intention to repossess the hired property; that the appellant repudiated the agreement by failing to pay the installments when due and payable as a result of which the respondent repossessed the rig; that the owner is entitled to claim the an-ears, relying on Incar (Nig.) Ltd. v. Elias Bus Transport Ltd. (1970) NCLR 5831 that under the common law by resuming possession of the goods the owner does not abandon or lose his right to sue for an-ears of rent, relying on Brooks v. Beimstein (1909) 1 KB 98.

On the award of N8,324.16, learned counsel for the respondent submitted that it is not disputed that the rig was sent to the respondent for repairs and that exhibits D – D8 are invoices of cost of repairs on the said rig No. LA 2632 WD.

On the submission of learned counsel for the appellant that since there was a wrongful seizure of the rig under the Act, the appellant was relieved of its obligation to pay an-ears of hire, learned counsel for the respondent submitted that the hiring in respect of the two rigs was not in law governed by the Hire Purchase Act and urged the court not to disturb the award of N108,324.16. Learned counsel urged the court to dismiss the appeal.

I had earlier in this judgment held that the transaction relating to the two rigs involved in this action is governed not by the common law as contended by learned counsel for the respondent and agreed by the court of Appeal in its judgment on appeal but by the provisions of the Hire Purchase Act. 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.

The effects of non-compliance with the requirements of section 9(2) are four:-

(i) The owner cannot enforce the hire-purchase agreement.

He is thereby disabled from instituting action to recover any monies due under the hire-purchase agreement, whether in respect of hire-rent or by way of damages for breach of contract.

(ii) The owner cannot enforce any guarantee relating to the hire-purchase agreement.

(iii) The owner is rendered incapable of enforcing any right to recover the goods from the hirer. This clearly means that the hirer gets a statutory bonus: he keeps and uses the goods without paying for them – see Eastern Distributors Ltd. v. Goldring (1957) 2 All ER 525 at 533.

(iv) Securities given by either the hirer or the guarantor in respect of money payable under the hire purchase agreement are unenforceable by the owner and any deposit paid as such security by the hirer or guarantor is recoverable.

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.

It should be noted that learned counsel for the respondent made no submissions on this issue in the alternative to the court finding that the common law does not apply to the facts of this case. That being the case, I take it that learned counsel for the respondent has nothing to offer in that respect.

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.

On the sub-issue as to the award of N8,324.16, I find as a fact that the Court of Appeal did not give any reason for reversing the judgment of the trial court on the issue. 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. In the instant case, there is evidence in support of the rejection of the claim by the trial court particularly as exhibits D – D8 on which the lower court based its decision predated 1984 when both parties agree that rig No. LA 2632 WD was sent in for repairs; the said exhibits cannot therefore be relevant to the claim. That apart, exhibits D – D8 are internal documents of the respondent which documents were authorized not by the appellant but an employee of the respondent by name De La Rue as admitted by DW2. I therefore resolve the issue in favour of the appellant and set aside the award of N 108,324.16 made by the Court of Appeal in favour of the respondent.

On the cross appeal whose issues are:

“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.”

Learned counsel for the cross appellant submitted that the decision awarding damages to the appellant/cross respondent was without evidential basis; that the revaluation or reappraisal of evidence and arriving at different conclusion was perverse, and that declaring exhibit D3 to be evidence of unpleaded fact was totally wrong and unsupportable by the record, and urged the court to allow the cross appeal.

On his part, learned counsel for the cross respondent submitted that issue 1 cannot be distilled from the omnibus ground of appeal which counsel submitted is incompetent, because the argument does not address the totality of the evidence as it should; that the onus of proof was on the cross appellant both on the pleadings and evidence. On the second issue, learned counsel submitted that an appellate court has a duty to set aside a perverse judgment which awarded the cross appellant what it never claimed and based on a case it never made, relying on Ekpenyong v. Nyong (1) (1975) 2 S.C 71 at 80-81; Temile v. Awani (2001) 12 NWLR (Pt. 728) 726 at 752.

Learned counsel further submitted that exhibit D3 is at variance with the pleadings of the cross appellant and that evidence at variance with pleadings is inadmissible, relying on George v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71 at 77, (1963) 1 SCNLR 117; and urged the court to dismiss cross appeal.

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.

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 – see Ekpenyong v. Nyong (1975) 2 S.C 71.

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. I therefore hold the view that the Court of Appeal was right in coming to the conclusion it reached on exhibit D3 and consequently find no merit in the cross appeal which is hereby dismissed with N10,000.00 costs in favour of the cross respondent.

In conclusion, I find merit in the main appeal which is accordingly allowed. The judgment of the Court of Appeal is hereby set aside and judgment is hereby entered for the appellant in the following terms:

1. It is hereby declared that the seizure of the plaintiff’s rigs Nos. LA 2632 WD and LA 8509 WD by the

defendant was wrongful.

2. It is hereby ordered that the trial court directs an inquiry into the market value of rig No. LA 2632 WD as at the date of judgment of that court and it is further ordered that an award of the said value as compensatory damages for wrongful seizure of the said rig is hereby made to the plaintiff.
3. It is hereby ordered that the defendant pays to the plaintiff the sum of N414,480.00 being money had and received by the defendant on rig No. LA 8509 WD before the wrongful seizure plus damages at the rate of N2,000.00 per day from the date of the wrongful seizure i.e. 29th May, 1984 until judgment of the trial court.
4. The plaintiff is hereby awarded the sum of N2,000.00 per day for loss of use of rig No. LA 2632 WD from 151 March, 1984 until the rig is released.
5. It is hereby ordered that the trial court directs an inquiry into the market value of the two rigs as at the time of judgment of that court with an order that the value be paid over to the plaintiff in lieu of return of the said rigs.
6. It is hereby declared that the delivery of the plaintiff’s 2 (No.) Fiat Allis Motor Scrapper Model 360B to the Sokoto Agricultural Development Project (SADP) by the defendant was wrongful and without the authority of the plaintiff.
7. The defendant is hereby ordered to make a refund of the sum of N319,806.00 (Three hundred and Nineteen Thousand Eight Hundred and Six Naira) being money had and received for two scrappers sometime in 1984 which the defendant has converted to its use.
8. It is hereby ordered that the trial court directs all necessary inquiries into the market value of the said scrappers at the date of judgment of the said court.
9. It is hereby further ordered that the market value so found be and is hereby awarded as damages to the

plaintiff less the sum of N319,806.00 aforesaid for conversion and/or detinue.

Appeal is allowed with N10,000.00 costs in favour of the appellant.S. U. ONU, J.S.C: In appeal No. CA/L/243/93 delivered on 9th February 200 1, the Court of Appeal sitting in Lagos held as follows:

“1. The plaintiff’s claim in respect of Rig No. LA 2632 WD succeeds and the plaintiff is awarded:

(a) The sum of N3,300.00 as the market value of the rig at the date of judgment of the lower court.

(b) N560, 000.00 as damages for loss of income on the rig for 260 days at the rate of N2,000.00 per day.

2. The claims of the plaintiff on rig No. LA 8509 WD are refused as the plaintiff did not show that a Rig is a motor vehicle within the meaning of section 1 of the Hire Purchase Act, Cap 169.
3. The award of the sum of N319, 806.00 on the scrappers are affirmed; and this court sees no reason to award more than that amount.
4. On the counterclaim by the defendant, judgment is given in favour of the defendant for the sum of N108,324.16 the breakdown of which is as follows:-

(a) N100, 000.00 being the unpaid balance of the purchase price due on the rig No. LA 85 09 WD.

(b) N8, 324.16 being cost of repairs and spare parts on the plaintiff’s rig”

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 claiming the II heads of claims terminating in HEAD II couched thus:

“II An order awarding the marketing value as damages to the plaintiff less the sum of N319, 806.00 aforesaid being damages for conversion and/or detinue.”

The respondent counter-claimed against the appellant in a statement of defence wherein it admitted that rig No. LA 2632 WD belonged to the appellant but added that appellant sent the said rig to it for repairs in mid February 1984 and used same as security for outstanding liability for an alleged credit purchase of two additional scrappers which the appellant allegedly instructed the respondent to deliver, in addition, to the earlier two scrappers to the Sakata Agricultural Development Project (SADP). The respondent, in addition claimed N100, 000.00 outstanding instalments. The trial court found in favour of the appellant except the claim of the N 100,000.00 outstanding two instalments which it awarded to the respondent. The respondent was aggrieved by the said decision while the appellant cross-appealed to this court.

The learned counsel for the appellant, J.C. Ezike, Esq., in the appellant’s brief filed on 9/8/2001, identified the following issues for determination, to wit:

“3.01 In the circumstances of this case, and in particular having regard to the issue of estoppel and the presumptions of law that arose in this case, was the Court of Appeal right in holding that the Common Law as opposed to the Hire Purchase Act (CAP 169 LFN) governs the transaction relating to the motor rig registered as LA 8509 WD

3.02 With regard to the plaintiff’s 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

3.03 In the circumstances of this case, what is the correct measure of damages for the seizure of the plaintiff’s rigs

3.04 Was the award of the sum of N108, 324.16 to the defendant made on the correct principles of law”

The respondent, on the other hand has cross appealed to this court and in the cross appellant’s brief of argument filed on 8/3/04 by PRINCE AOESEGUN AJIBOLA, the following issues have been identified for determination:-

“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 fact not pleaded.”

In arguing appellant’s issue 1, learned counsel stated that it is common ground that out of the sum of N514,482.00 hire purchase price for rig No. LA 8509 WD the appellant had at the time of its repossession by the respondent, paid the sum of N414, 482.00 leaving a balance of two instalments of N50, 000.00 each; that though the respondent claimed that the hire purchase agreement was governed by the Common Law, the appellant stated that it was governed by the provisions of the Hire Purchase Act Cap. 169 particularly as the rig No. LA 8509 WD is a mechanically propelled vehicle; that the trial court rightly held that the transaction in respect of rig No. LA 8509 WD is governed by the Hire Purchase Act, 1965 and submitted further that the Court of Appeal was in error when it reversed that holding; that the said transaction was governed by the common law. Learned counsel further submitted that the holding by the Court of Appeal to the effect that exhibit D2 did not incorporate the provisions of the Hire Purchase Act as it did not stipulate that on payment of 3/5th of the purchase price the respondent would not be able to repossess the rig and that the appellant did not call evidence to prove that a rig is the same thing as a motor vehicle are erroneous particularly as they were made without reference to or consideration of the submissions of learned counsel for the appellant before that court. Learned counsel then referred to exhibit D2 and added that the Statutory Notice requirement of section 2(c) of the Hire Purchase Act and the schedule thereto were complied with by their verbatim reproduction in exhibit D2 and that the clause 6 thereof contain “Restrictions of Owners Rights to Recover Goods” particularly as it is only in the Act that the right to recover the goods in issue is restricted whereas under the common law, no such restriction exists as long as the hirer is in default of instalments. That since appellant paid more than 3/5th of the price, it was wrong for the respondent to have recovered the rig.

Learned counsel then submitted in the alternative that granted without conceding that it is the common law that applies to the transaction, the result would still be the same in as much as the respondent cannot recover the rig after the appellant had paid 50% or 60% of the purchase price without recourse to the court which was never done in this case.

With regard to the sub-issue as to whether the appellant called evidence to prove that a rig is the same thing as motor vehicle, learned counsel referred us to ‘page 921 of the record where the Court of Appeal found “that under cross-examination, DW1 gave evidence suggesting that the rig No. 8509 WD was generally treated as if it was a motor vehicle”, and submitted that the above finding amounts to a finding that the respondent is estopped from denying that the said rig is a motor vehicle by itself having registered it as a motor vehicle with the Motor Licensing Authority it was insured by obtaining a road worthiness certificate for it. That having previously treated exhibit P as an agreement under the Act and rig No. LA 2632 WD as a motor vehicle, the case of Burns v. Currell (1963) 2 All E.R. 297 supports the view that the said rig is a motor vehicle.

On his part, learned counsel for the respondent in the respondent’s brief deemed filed on 27/4/05 formulated two issues in respect of the appeal by the appellant. The issues ask as follows:-

“1. Whether the Court of Appeal was right in holding that the provisions of the Hire Purchase Act do not apply to the transaction in respect of water rig No LA 8509 WD.

2. Whether the award of the sum of N 108, 324.16 to the defendant by the Court of Appeal was properly made in line with the principles of law”

It is clear that appellant’s issues 1 and 4 are the same or similar to respondent’s issues 1 & 2. However, in relation to issue No.1, learned counsel for the respondent submitted that it is the case of the respondent that the rig was voluntarily surrendered to the respondent by the appellant, that even if the version of the appellant that the rig was seized by the respondent be accepted, the seizure is not unlawful considering the applicability of the provisions of the Hire Purchase Act, 1990. Learned counsel therefore urged us not to disturb the finding by the court below that the transaction in issue is outside the contemplation of the Hire Purchase Act. Learned counsel referred us to sections 1(a), 9(1) and (5) of the Hire Purchase Act as well as 20(1) thereof and submitted that appellant failed to prove that rig NO.LA 8509 WD is a motor vehicle under the Hire Purchase Act. Counsel after citing in support thereof the cases of Burns v. Currell (supra), Daley v. Hargreaves (1961) 1 All ER 552 as well as Macdonald v. Carmicheal (1911) SC (1) 27, submitted that rig No. LA 8509 WD is not a motor vehicle within the Act; that the fact that exhibit D2 does not stipulate that the respondent would not reposses as provided under section 9(1) of the Hire purchase Act upon payment of 3/5th of the purchase price by the appellant confirms the intention of the parties to take the transaction outside the purview of the Hire Purchase Act that since it is the intention of the parties that the transaction be governed by the common law and it is not disputed that appellant had defaulted in the payment of instalments the agreement is therefore determined relying on Atere v. Amao (1957) WNLR 176. Learned counsel therefore urged the court to resolve the issue against the appellant.

Section 1 of the Hire Purchase Act provides as follows:

“Subject to the provisions of section 19 of this Act, the provisions of this Act (other than the provisions relating to the control of advertisements) shall apply in relation to-

(a) all hire-purchase agreements and credit-sale agreements (other than agreements in respect of motor vehicles) under which the hire purchase price or total purchase price, as the case may be, does not exceed two thousand naira…”

The question is, whether the rig No. LA 8509 WD is a motor vehicle within the contemplation of the Hire Purchase Act or not. The trial court found that it is while the court below said it is not. To answer the question, one has to look at the provisions of the Hire Purchase Act to decipher what the Act recognises as a motor vehicle. In that respect, section 20(1) of the Hire Purchase Act is very relevant.

It defines the term as follows:

“Motor vehicle” means a mechanically propelled vehicle intended or adapted for use on roads or for use for agricultural purposes.

There is no dispute that the rig LA 8509 WD is mounted on a chassis, registered with the Motor Licensing Authority, given a certificate of road worthiness and insured. Also not disputed is the fact that it is driven by a driver from point to point. Equally not disputed is the fact that the registration, insurance etc were done by the respondent.

PW1 stated at pages 226-227 of the Records that: –

“TH60 Ingersoll Cyclone Drilling machine is mounted on a chassis like water tanker – and it is called a Derrick. The rigs were duly registered with the Motor Licensing Authority. The registration was done by the defendant.”

DW 1 stated at page 277 thus:-

“Ingersole Water rig must be registered with the licensing authority. There must be a motor vehicle insurance cover for them. There must be a road worthiness certificate. There is a vehicle license; it is driven by a driver.”

In paragraph 44 of the plaintiff’s reply/defence to the counterclaim, the plaintiff pleaded inter alia:

“the rig is mechanically propelled motor vehicle intended or adopted for use on roads duly registered as a motor vehicle by the defendants and contrary to the defendants … is covered by the Hire Purchase Act, 1965. The defendants are hereby given notice to produce the original hire purchase agreements between the parties herein and numbered 7/T4600297/83 and 14/T4600291/82.”

stated thus:

“In resolving this issue, the question I ask is what is the intention of the parties Is there any consensus ad idem The answers are that it was the intention of the parties that this transaction should be governed by Hire Purchase Act, 1965 and that did the minds of the parties meet on this. In my judgment the purchase and sale of the two RIGS were governed by the Hire Purchase Act, 1965. To hold otherwise would involve not only making a new agreement for the parties but also varying the existing agreement. I hold that it will be unjust and inequitable for either party to resile from these agreements exhibit P1 and D2.”

The reaction of the Court of Appeal to the above finding at page 919 – 920 of the record is where it stated thus:

“At the trial, the plaintiff did not call any evidence to show that a rig was the same thing as a motor vehicle. The nearest the plaintiff went to showing this was in the testimony of PW1 at page 226 of the record of proceedings where he said:

DH60 Ingersoll that (sic) Cyclone Drilling machine is mounted on a chassis like a water tanker and it is called Derrick.”

See British Oxygen Co. v. Board of Trade (1968)2 All ER 177 at 183 wherein Buckley, J. held that:

“I am unable to accept the plaintiff company’s contention that “vehicle” here means only such ordinary means of transport as lorries and motor cars … in my judgment, make clear that it extends to specialized vehicles…”

And I hereby adopt that view as mine in this case. The rig in question is a specialized vehicle duly registered etc.

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.

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 the appellant had paid up to 60% of the purchase price of the rig in question which fact has not been denied by the respondent.

I accordingly 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.

On issue No.2, the query is whether the lower courts are in agreement that the delivery and sale of the appellant’s two scrappers to S.A.D.P. was wrongful as the appellant never authorized same, that what constitutes the problem is the amount to award as to damages, that having found that the claim of the appellant succeeded in that respect, the trial court ought to have ordered inquiry as to damages as claimed instead of making the order as an alternative to the award of N319,806.00 which was not what the appellant claimed – that the appellant made a cumulative and consecutive claim grounded in conversion. Learned counsel then stated that the court below erred in limiting the award upon appeal to the sum of N319,806 under the impression that appellant had specifically asked that the scrappers be sold as such which he cannot claim on the basis of loss of income. See the case of Stitch v. A.-G. of the Federation (1986) 12 SC 373 at 422-423 (1986) 5 NWLR (Pt.46) 1007 where this court (per Uwais, JSC) as he then was, held (on what should be awarded).

“… the value of the chattel at the date of conversion together with any consequential damages flowing from the conversion …”

Since the lower courts having 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 the court it was 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 paragraphs 34(8), 34(9), 34(10) and 34(11) of the 3rd Amended Statement of Claim which is hereby ordered accordingly.

On issue No.3, the learned counsel referred us to paragraph 34(7) of the Statement of Claim and that by the Ayoke v. Bello (1992) 1 NWLR (Pt.218) 380 at 397 – 405 for the view that appellant is entitled for the return of the said rig or the resultant assessed value in addition to the damages of N2, 000.00 per day or return of the said rig as prayed; that since respondent did not sign exhibit D2 in violation of S. 2 (2)(a) of the Hire Purchase Act. The consequence is that the counter-claim for N 100,000.00 balance of instalments in respect of the rig in question is unenforceable and by operation of section 9(2)(a) of the said Act coupled with the fact that appellant had paid more than the relevant proportion of the price before the seizure of the rig, all the appellant’s liabilities under the said exhibit D2 are extinguished relying on Ayoke v. Bello (supra) at 401; that the court below ought to have awarded the claim of N200.00 per day by way of profit until delivery of the rig and not to have limited the award to 260 working days particularly as the appellant claimed the profit per day “from 1st March, 1984 until the rig is released to the plaintiff’ and PW 1 testified to the fact that appellant’s claim is as per the statement of claim.

In short, learned counsel submitted that appellant is entitled to the replacement values of its rig, the loss of profit as claimed and generally to be placed in the same position it would have been but for the respondent’s wrongful acts of seizure of the rigs and urged the court to resolve the issue in favour of the appellant. Though learned counsel for the respondent did not argue the issue in its brief, it was argued as part of the issues on the cross-appeal.

It is to be noted that leal11ed counsel for the respondent has not addressed the court in respect of the award in relation to rig No. LA 8509 WD. It should also be noted that the case of the respondent in the pleadings and at the trial is not that the rig in question was sold by the appellant to it.

However, contrary to the conflicting submissions of learned counsel for the respondent that the rig No. LA 2632 WD was delivered by the appellant to the respondent as security for the purchase of two additional scrappers, and at the same time that the said rig was sold by the appellant to the respondent vide exhibit D3 the respondent admitted in paragraph 5 of its 4th amended statement of defence and counterclaim at page 365 of the record that the said rig was sent in by the appellant for repairs as pleaded and contended by the appellant throughout the proceeding. The respondent pleaded therein inter alia thus “…The defendants admit that the plaintiff had sent the rig pleaded therein for repairs …”

The lower courts found that the appellant neither bought two additional scrappers nor instructed the respondent to deliver any to SADP. The Court of Appeal specifically found at page 957 of the record that “it is not the case of the defendant that the plaintiff sold rig No.LA 2632 WD to it,” and there is no appeal against that crucial finding of fact which is borne out of the pleadings of the respondent.

From the facts found by the lower courts it is clear and I hold that the appellant’s two Jigs were wrongfully seized by the respondent and that appellant is entitled to damages for the wrongful act of the respondent. In consequence I resolve issue No.3 in favour of the appellant.

On issue No.4., learned counsel for the appellant submitted that the award of N100, 000,00 outstanding balance on rig No. LA 8509 WD was made by the Court of Appeal without considering any of the two statutory defences raised by the appellant which defences constitute complete answer to the claim in question; that the counterclaim for the sum of N100, 000.00 was unenforceable because by admittedly failing to sign exhibit D2, the respondent breached the mandatory requirement of section 2(2) of the Hire Purchase Act which prohibits the appellant from enforcing any provision of exhibit D2 including recovery of the outstanding balance.

From the facts on record, appellant having paid 3/5th of the hire purchase price and under section 9(2)(a) of the Hire Purchase Act 1965, the respondent cannot enforce recaption of the rig in issue.

It is for these reasons and those more comprehensively contained in the judgment of my learned brother Onnoghen, JSC that I too allow the appeal and make similar consequential orders including costs contained therein.

Order: I allow the appeal and dismiss the cross appeal.

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SC.216/2001