J.E. Oshevire Ltd. Vs Tripoli Motors (1997)

LAWGLOBAL HUB Lead Judgment Report

U. ONU, J.S.C.

In the High Court of Kano State sitting in Kano, the appellants herein as plaintiffs, instituted an action against the respondents who were then the defendants on 10th September, 1983, upon a writ of summons containing items of claims which were later superceded by a Statement of Claim and then by an Amended Statement of Claim dated 25th May, 1987, whose paragraph 14 states as follows:-

“14. By reason of the matters aforesaid, the plaintiffs have been put to considerable trouble, inconvenience and expense, and they have thereby suffered loss and damage.

Particulars of Damage

1. The current value of the said Car N54,639.25k or alternatively the return of the Car to the plaintiffs.
2. Loss of use of the said Car for 247 days at N20.00 per day N4,940.00
3. Refund of N400.00 being money had and received to the plaintiff’s and the plaintiffs claim:-
4. An order for the delivery up of the said motor car or its value N54,639.25k
5. Damages for its detention at the rate of N20.00 per day from 1st April, 1983 till date of judgment.
6. Damages for breach of the said agreement.
7. Costs.”

The case went to trial. In a well considered judgment, the learned trial Judge (Coram: Ubbaonu, J.) on 24th November, 1987 entered judgment in favour of the plaintiffs wherein he stated, inter alia thus:

“At the end of the day, I find and hold that the plaintiff has established its case on the balance of probabilities. The issue to be discussed is how much should be awarded to the plaintiff as damages. The plaintiff is claiming N20.00 per day from 1st April, 1983 to date of judgment. The plaintiff also claims N20 per day for 247 days which totalled N4,940.00. I do not know how plaintiff got the 247 days for which he is claiming N4,940.00 and again N20 per day from 1st April, 1983 till date of judgment; it means that for 1984 which was a leap year, the plaintiff will get N7,320.00; 1985, N7,300.00; 1986, N7,300.00 and from January 1st, 1987 to November 24th, 1987 which is the date of judgment N6,560 for a period of 328 days. The plaintiff will then get N5,500.00 from 1st April, 1983 to Dec., 1983 a period of 275 days…………….

From 1/4/83 there were 100 days. N20 per day for 100 days will be N2,000.00. I shall therefore award N2,000.00 to the plaintiffs against the defendants for breach of contract………The defendants should return the said vehicle immediately to the plaintiffs without tampering (sic) with the vehicle KN 5962 KM in any way that will be detrimental to the plaintiffs.

Judgment is therefore entered in favour of the plaintiffs against the defendants…………….”

Being aggrieved by this decision, the respondents appealed to the Court of Appeal, Kaduna Division (Coram; Aikawa, J.C.A. concurred in by Mohammed, J.C.A. as be then was and Achike, J.C.A.) which I shall in the rest of this judgment refer to as “the court below”. That court on 16th August, 1989 allowed the appeal and set aside the judgment of the trial court, giving among other reasons for so doing as follows: –

“With regard to question number two for determination i.e. whether the appellant will be liable in damages for retaining the respondent’s car with him has already been answered in dealing with question number one (1) that is to say: since there is no detinue it follows therefore that there is also no damages against defendant therefore both amounts of money entered by the learned trial Judge in favour of the respondent for detinue and damages will be set aside.”

And later further down in its judgment, the court below said in conclusion thus:

“I am satisfied on the evidence as a whole that at no stage was there any contract of any kind between the appellant and respondent. I am therefore of the opinion that in the circumstances of this case there was no contract between them. If the averment in the statement of claim can be one, it had not been supported by evidence since the statement of claim is not evidence.

In conclusion, I hereby set aside the judgment of the lower court and in substitution order that the appellant should release the vehicle in question to the respondent after the respondent has fully satisfied the conditions for the repairs, namely the signing of note of satisfaction while damages awarded for detinue and breach of contract are hereby set aside.”

Dissatisfied with this decision, the appellants have appealed to this court on a Notice of Appeal containing three grounds dated 16th November, 1989. The parties hereto did not subsequently exchange briefs of argument as required by the rules of this court since only the appellants filed and served one on the respondents in which counsel on their behalf, identified five issues as arising for our determination to wit: