Kasali A. Raimi Vs Moshudi Funso Ogundana (1986)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C. 

On the 11th day of February, 1986, I dismissed the appellant’s appeal to this Court. I then indicated that I would give reasons for my judgment today. I now give those reasons.

In the substantive suit which emanated from the High Court of Rivers State, Port Harcourt Judicial Division, the appellant herein, who was plaintiff, claimed against the respondent, 2nd defendant, and one other, Moshudi Funso Ogundana, who neither appealed to the Court of Appeal nor this Court, in these terms:

1. The return of the Plaintiff’s Toyota Hiace Bus No. RV1554A seized by the Defendants at Port Harcourt on or about the 11th of September, 1979 or the payment of the sum of N10,000 representing the value of the said vehicle at the time of seizure.
2. The sum of N10,000 as special and general damages for wrongful seizure and unlawful detention of the said vehicle by the Defendants for a period of 123 days i.e., between 11th September, 1979 and 11th of January, 1980 inclusive.

Particulars of Damages

(a) Special Damages: Loss of earnings N6,150.00

for 123 days at N50.00

(b) General Damages 3,850.00

Total 10,000.00

Pleadings were ordered and filed. From the pleadings of the parties, it is easy to extract the main issues in controversy. The plaintiff/appellant averred that he is a butcher, the 1st defendant, a motor dealer, while the 2nd defendant/respondent is said to be a motor dealer and to trade in the name and style of Akintoye Motors. In paragraphs 4, 5, 6, 7, 10, 11, 13, 15, 17 and 18 the plaintiff/appellant further averred as follows:-

4. On the 28th of September, 1978, the Plaintiff at Port Harcourt approached the 1st Defendant for the sale to him on credit one of the Toyota Hiace Buses he deals in.
5. …
6. In pursuance of the said agreement, the Plaintiff paid to the 1st defendant the sum of N2,000 (Two thousand Naira) on the same day and on the 1st of October, 1978 made another payment of N400.00 to the 1st defendant before the vehicle was delivered to him on or about 2nd October, 1978.
7. The 1st defendant issued the plaintiff receipt No.040 of 28/9/78 and a Deposit and Instalmental Card bearing the trading name of the 2nd Defendant. The two documents are hereby pleaded.
8. The Plaintiff thereafter began to run the vehicle as passenger bus in Port Harcourt and was so successful in business that he decided to pay more than the agreed monthly instalment in order to finish the payment early.
9. The Plaintiff accordingly paid to the 1st Defendant N800.00 on the 5th of every month from November, 1978 to April, 1979 and each time an instalment was paid it was recorded on the Deposit Instalment Card and signed by the 1st Defendant as paid …
10. The Plaintiff made a final payment to the 1st Defendant to complete the payment of the purchase price on the 5th October, 1979 when the 1st Defendant acknowledged the receipt on a piece of paper which he signed pending the issue of a final receipt
11. The Plaintiff’s vehicle was accordingly seized on the instruction of the 2nd Defendant and taken away from the Plaintiff and has since been detained by the Defendants…
12. The Plaintiff avers that at no time did he enter into any Hire Purchase Agreement with the 1st Defendant and will contend at the trial that the agreement between him and the 1st Defendant in respect of the said vehicles is one of Credit Sale and not one of Hire Purchase.
13. The Plaintiff will further contend at the trial that the 2nd defendant is bound by the transaction between the Plaintiff and the 1st Defendant in respect of the said vehicle, the 2nd Defendant having cloaked him the 1st Defendant with an apparent usual authority displayed on the Deposit and Instalmental Sheet Card”.

The more important paragraphs of the 1st Defendant’s reply are 6, 7 and 11. There the 1st Defendant averred as follows:-

(6) The, 1st defendant deals in vehicle which he always bought on credit from the second defendant and which first defendant resells to customers in Port Harcourt on Hire Purchase paying back to the second defendant as agreed to by both defendants.

(7) The first defendant did not inform second defendant that plaintiff was owing anything on the vehicle in question nor did first defendant at any time ask, request or authorise second defendant or any of his agents or servants to seize plaintiffs vehicle …

(11) The said Hire Purchase Agreement and all other documents relating to the sums of money first defendant is to pay second defendant, how much first defendant had paid to second defendant and what balance remains all in respect of the vehicle trade between both of them are now in the custody of Ondo State Police in connection with the criminal case referred to in paragraphs 9 and 10 above ….. and Police have refused to surrender them”,

As for the 2nd defendant and respondent herein, paragraphs 2, 5, 8, 9, 12 and 13 of his statement of defence contained the crux of his defence to the plaintiffs’ action. In those paragraphs he averred as follows:

2. The 2nd defendant avers that the 1st defendant is a Hirer and not a Purchaser from him of the vehicle in issue which was said to be later registered as a Hackney/Carriage Number RV1554A
3. The 1st defendant is not an agent or employee of the 2nd defendant nor is he connected with the business of the 2nd defendant in any way other than as a Hirer under a hire-purchase agreement.
4. The 2nd defendant avers that he is not bound by any transaction between the plaintiff and the 1st defendant of which he is not a party either directly or by agency implied or expressed and where there is no privity of contract.
5. The 2nd defendant will contend at the trial that;

(a) there is no title in the 1st defendant and as such the sale or purported sale arising from an illegal Hire Purchase Agreement between the 1st defendant and the plaintiff is void ab initio and of no legal effect;

(b) there is no cause of action against the 2nd defendant; the 2nd defendant has been wrongly joined without any reasonable or probable cause and that the case be dismissed with substantial costs against both plaintiff and 1st defendant;

(c) the sale or purported sale arising from the Hire Purchase Agreement executed by the 1st defendant in favour of the plaintiff constitutes criminal conversion and the tort of fraudulent misrepresentation;

(d) that the remedy available to plaintiff against the 1st defendant is one of “money had and received” and for damages for deceit .

12. The 2nd defendant will at the trial contend that in as much as the 1st defendant has unilaterally breached the terms and conditions of the Hire Purchase Agreement between him and the 2nd defendant, the Defendant is entitled under the law to repossess the vehicle in respect of which the Hire Purchase Agreement was executed.
13. The 2nd defendant states that the 1st defendant is not a purchaser but a hirer and therefore has no right whatsoever to resell vehicle hired out to him by the 2nd defendant and so denies paragraph 6 of the 1st defendant’s statement of defence and further states that paragraph 7 of the 1st defendant’s statement of defence is completely askew since 2nd defendant was not even aware of the fraudulent sale or hire purchase agreement between plaintiff and 1st defendant”

All three parties gave evidence at the trial. It is pertinent to mention that the Hire Purchase Agreement between 1st and 2nd Defendants was tendered in evidence and received as Exhibit F. At the close of evidence and addresses, the issue which the learned trial Judge, Ichoku, l. has to decide was the interpretation to be given to Exhibit F. According to him,

“should Exhibit F be shown to be in essence a hire-purchase agreement then the story of the 1st defendant that the transaction between him and 2nd defendant is one of credit sale is but false. This being so the contention of plaintiff that the 1st defendant and himself agreed on credit sale will not also be true.”

He held that Exhibit F is nothing other than an agreement to sell since the hirer had no legal right at his own option to return the vehicle and possibly option to purchase the vehicle. The two transactions were in his view credit sales. Accordingly, he gave judgment in favour of the plaintiff/appellant and against both defendants in the sum of N7.800 being the value of the vehicle detained.

As earlier indicated, only the 2nd defendant, respondent herein, appealed to the Court of Appeal. Phil-Ebosie, Olutawura and Aikawa, JJCA, in a unanimous judgment allowed the appeal and set aside the judgment of the High Court. The appellant then appealed to this Court.

5 Grounds of appeal were filed by the appellant. I do not propose to set them down as they all revolved around the true nature of Exhibit F, and whether it was relevant and admissible. Both learned counsel filed briefs of argument.

In further argument in Court, Mr. Olukole, learned counsel to the appellant contended that Exhibit F. which is the agreement between the 1st and 2nd defendants, was inadmissible and irrelevant. This argument was based on the fact, according to him, that the agreement was not pleaded. He referred to paragraph 6 of the 1st defendant’s statement of defence in which he 1st defendant, had pleaded the transaction between him and 2nd defendant as credit sale, although in testimony in Court, he said it was hire-purchase. Mr. Olukole submitted that as hire-purchase was not pleaded any evidence as to that went to no issue. He relied on National Investment and Properties CO. Ltd. v. The Thompson Organisation Ltd. and Anor. (1969) N.M.L.R. 99 at 106. It was his further contention that Exhibit F having not been pleaded it was as if it was never tendered. As to admissibility and relevance, he contended that Exhibit F ought not to have been admitted into evidence in the High Court as the 1st defendant who tendered it had not pleaded it. His further contention that even the 2nd defendant did not plead Exhibit F had to be abandoned when the Court drew his attention to paragraphs 2, 5, 9 and 12 of 2nd defendants’ statement of defence. Dealing with this aspect of his submission in his brief of argument, Mr. Olukole had submitted that Exhibit F was inadmissible not only because it is not on the face of it made between the 1st defendant and the 2nd defendant and therefore irrelevant, but also because it was neither pleaded nor produced from proper custody.

This argument of Exhibit F not being made between 1st and 2nd defendants was the second point in Mr. Olukole’s submission in Court. According to him, the person who contracted with 1st Defendant was A.A.K. Akintoye Motors and not Alhaji A.K. Akintoye.

Finally, Mr. Olukole submitted that Exhibit F was not a hire-purchase agreement as it contained no option to purchase. He relied on Lawrence v. Bentworth Finance Company 1966 N.M.L.R. 87 at 90. We did not call on Mr.Oguntunwase.

The issues raised in this appeal could be dealt with quite briefly, which of course explains the summary judgment given by this Court after the argument. Dealing first with the question of admissibility and relevance. it has to be conceded that the 1st defendant who in fact tendered Exhibit F did not plead it in his statement of defence. In paragraph 6 of his defence he actually pleaded the transaction between him and the 2nd defendant as credit sale. It was in the course of his testimony in Court that 1st defendant now described the transaction as hire-purchase. It is now trite law that evidence on matters not pleaded goes to no issue. Secondly, it must be conceded too that it is settled that a court is expected in all proceedings before it to admit and act only on evidence which is admissible in law. But when inadmissible evidence is tendered, it is the duty of the opposite party immediately to object although if the party fails to object the court may, in civil cases, and must in criminal cases, reject such evidence. If, however, the party fails to object to the admissibility of a document in the trial court. It is not open to him to raise an objection on that ground in a court of Appeal. In Alade v. Olukade (1976) 2 S.C. 183, 189 where a sun print copy of a plan produced at the trial was tendered without objection by counsel in the Western State Court of Appeal and in this Court sought to challenge the decision on the ground of inadmissibility of that plan, this Court held that that ground was not open to the appellant. Idigbe. J.S. C. in the lead judgment drew a line between documents which was inadmissible in law in any event and documents admissible under certain conditions.

In the earlier case, it would be open to counsel to raise such an issue on appeal even if the document was tendered by consent of both counsel. See Minister of Lands Western Nigeria v. Dr. Nnamdi Azikiwe (1969) 1 All N.L.R. 48. In the latter case, i.e. the one in which the document is not by law inadmissible in any event, the party may be precluded from objecting to such evidence on appeal.

In the case in hand, learned counsel to the appellant did not object to the tendering of Exhibit F. Exhibit F is certainly not a document that is inadmissible, in law, in any event. The appellant’s reliance on Alashe v. Olori Ilu (1964) All N.L.R. 390 is of no avail for there what was in issue was a plan which was not countersigned by the Director of Surveys. Such a plan, as the law then stood, was inadmissible in law. In these circumstances, it was not open to Mr. Olukole to challenge the admissibility of Exhibit F in this Court.

Having made necessary concessions, and having shown that the question of admissibility was not open to the appellant, my next observation is that this issue of relevance and admissibility was not fully taken in the Court of Appeal. What was taken in the Court of Appeal was the point that the contracting parties were 1st defendant and Akintoye Motors and not 1st defendant and A.K. Akintoye. Significantly, when the Court of Appeal drew Mr. Olukole’s attention to the fact that he was making a case he did not make in the High Court learned counsel replied.

“I agree that Exhibit F was not objected to when it was tendered as an agreement between 1st and 2nd defendant. We did that because it was not a point to take against admissibility but a point of weight”.

Relying on the decision of this Court in Akpena v. Barclays Bank and Anor. (1977) 1 S.C. page 47 at pp.58-59; Mr. Olukole sought and was granted leave of this Court to argue these new points on admissibility. Perhaps this is an appropriate stage to remind counsel that an appeal court will only entertain new points not canvassed in the courts below if those points deal with substantial issues of substantive law or procedure. The rationale behind such indulgence is obvious. It is to ensure that any points of law relevant to determination of the controversy between the parties are not shut. Ultimately it is to obviate a miscarriage of justice. That indulgence by courts of appeal is not intended to be utilised by counsel in fashioning different cases as they go from one court to the other in our hierarchy of courts. To my mind that would not only be an abuse of the processes of court, but would do no credit to counsel whose ability to successfully and convincingly put across his client’s case is called into serious question.

To return to the question of admissibility, let me reiterate the point already made that it is not open to the appellant to challenge the admissibility of Exhibit F at this stage. Nevertheless, there is no merit in that ground of appeal. I am in no doubt that Exhibit F was properly admitted in evidence. It was pleaded by the 2nd defendant/respondent and I have already referred to paragraphs 2, 5, 9 and 12 of this defence which are set down above. When the 1st defendant was giving evidence in the High Court, he testified as follows:”

Before I got the vehicle in question I paid a deposit of N3,000.00 to the 2nd defendant before I took the vehicle. After that we made an agreement which I signed. The agreement is with the 2nd defendant”.

The record shows the following –

“Court:- The 2nd defendant produces the agreement. Witness sees it. Yes this is the agreement I entered into with the 2nd defendant in respect of this vehicle – Mr. Akanla seeks to tender it. No objection from both counsels – admitted and marked Exhibit F”

The agreement made between 1st and 2nd defendant was identified by 1st defendant before he tendered it. He had stated that that agreement was with 2nd defendant before 2nd defendant produced it. In any case, when 2nd defendant testified at p.36 of the record he made reference to the hire-purchase agreement he had entered into with 1st defendant. He then identified Exhibit F. Surely, if 1st defendant did not tender it, he would have tendered it. As to relevance, the agreement entered into between 1st defendant and the 2nd defendant was clearly relevant to the proceedings. If it was a hire purchase agreement, as the Court of Appeal eventually held, then the 2nd defendant was entitled to seize the vehicle in issue on the breach of the terms of that agreement. Different legal consequences had followed the earlier decision of the learned trial Judge that the same agreement evidenced a credit sale and not hire-purchase transaction. Mr. Olukole now says that whatever the agreement may be it was irrelevant as it was entered into by the 1st defendant and Akintoye Motors who presumably is not a party to the proceedings. With all respect to learned counsel to the appellant, this contention amounts to no more than catching at every straw in an attempt to avert failure. It was never really in dispute that there were transactions between the 1st defendant and Alhaji Akintoye trading in the name of Akintoye Motors. Throughout the case in the High Court the appellant treated Exhibit F as having been signed by Alhaji Akintoye with which the 1st defendant had a transaction that adversely affected him.

In fact the appellant in paragraph 3 of his statement of claim had averred that-

“the 2nd defendant (i.e. Alhaji Akintoye) is also a motor dealer and trades in the name and style of Akintoye Motors of Surulere Street, Akintoye’s Compound, Omuo-Oke, Ekiti Ondo State of Nigeria”

When Mr. Olukole’s attention was drawn to this in the Court of Appeal, he attempted to find solace in the 2nd defendants’ general averment.

“save and except as are hereunder expressly admitted, the 2nd defendant denies each and every allegation of fact contained in the plaintiff’s statement of claim as if each had been set out seriatim and specifically traversed”.

He, however, lost sight of paragraph 1 of the same statement of defence in which the 2nd defendant specifically set down the paragraphs of the statement of claim that he could not deny or admit. Paragraph 3 of the Statement’ of claim is not one of those paragraphs.

It also has to be remembered that the 1st defendant had given uncontroverted evidence that he signed Exhibit F with the 2nd defendant. In the result I would as did the Court of Appeal, reject this contention as lacking in substance.

Finally, learned counsel for the appellant has attacked Exhibit F as being nothing but a credit sale agreement. He argues that it is not a hire purchase agreement as it contained no option to purchase, an essential characteristic of a hire purchase transaction. Under Section 20 of the Hire Purchase Act, No.111 of 1965, hire purchase is defined as

“the bailment of goods in pursuance of an agreement under which the bailee may buy the goods or under which the property in the goods will or may pass to the bailee, and “hire purchase”

agreement shall be construed accordingly.” It is clear that the two characteristics of a hire purchase agreement are firstly, the bailment of goods under an agreement in which the bailee may buy the goods i.e. clearly an option to purchase, or an agreement under which the property in the goods will pass to the bailee i.e. although the hirer could terminate the agreement at any time, the goods would be his if he completes payment of the hire purchase price. The courts in this country have dealt with the nature of hire-purchase in numerous decisions. I am, therefore, inclined to agree with the Court of Appeal that it is to them and to the Hire Purchase Act, 1965 and the Hire Purchase (Amendment) Decree, 1970 that the learned trial Judge ought to have had recourse and not to Chitty on Contracts. In G.B. Ollivant and Co. vs. Akinsanya and Anor. (1930) 10 N.L.R. 73, Butler Lloyd J held, while distinguishing a contract of hire and a contract of purchase, that” the test is whether the so-called hirer has an option of determining the contract, if not he is a purchaser whatever the contract may call him”. He referred to the English cases of Helby v. Mattews (1896) A.C. 471 and Brooks v. Beimstein (1909) 1 K.B. 98 in which the hirer had a right to terminate the agreement; and so, not being a purchaser, the use of the article hired formed the consideration for the instalments.

The decision in Akinsanya’s case was followed in Amao v. Ajibike (1955-56) W.R.N.L.R. 121 where it was held that the difference between a contract of sale payable by instalments and a contract of hire purchase is that in the former the purchaser has no option for terminating the contract and returning the chattel, whereas in the latter the hirer has.

Also in various decisions of this Court the fundamental terms of a hire purchase agreement were considered and established. See Amusan v. Bentworth Finance (1965) 1 All N.L.R. 382; Yakassai v. Incar (1975) 5 S.C. 107. See also the recent decision of this Court in Alhaji Shaihu Ahdul-kareem v. Incar (Nigeria) Ltd. (1984) 10 S.C.1. In Lawrence v. Bentworth Finance (1965) 1 All N.L.R. 378 (1966) N.M.L.R. 87; Idigbe. J .S C. dealing with the same fundamental terms stated at p.381.

“in a hire-purchase agreement there are two principal rights of the owner of goods let to their hirer …

(i) the right to repossession of the goods, upon breach of a term of the hire agreement which exists until the hirer after payment of all hire rentals due under the agreement, purchases the same by exercising his right under the option clause and (2) the owner’s right to the hire rentals due under the hire-purchase agreement for any period which the hirer in fact made use of goods – which must always be considered separately…………….. “

Having looked at the Hire-Purchase Act 1965 and these authorities, I propose to examine Exhibit F which is the agreement being challenged by the appellant. Its terms were as follows:-

(9) If the Hirer shall duly observe and perform all the conditions and stipulations herein contained and on their part to be observed and performed and shall duly pay to the owners all the rents hereby reserved during the terms of the hiring together with all other sums (if any) payable by them to the owners under the provisions of this agreement then at the termination of the hiring the vehicle shall become the property of the Hirer” ….

(16) The right of the hirer to terminate the Agreement.

(a) The Hirer may put an end to this by giving notice, of termination in writing to the owners or any person who is entitled to collect or receive hire-rent.

(b) The Hirer must then pay any instalments which are in arrears at the time when he gives notice to the owners. If, when he had paid these instalments the total amount which he has paid, under the agreement is less than “the relevant portion” in accordance with the provision of the Hire Purchase Decree, he must also pay enough to make that sum.

(c) If the vehicle has been damaged owing to the Hirer having failed to take reasonable care of them the owners may sue him for the amount of the damage unless that amount can be agreed between the Hirer and the owners.

(d) The Hirer should see whether this agreement contains provision allowing him to put an end to the agreement on terms more favourable to him than those just mentioned. If it does, he may put an end to the agreement on those terms.

Mr. Oguntunwase, was at pains in his brief of argument to argue that there is nothing in the Hire-Purchase Act 1965 as amended by the Hire Purchase (Amendment) Decree, 1970 providing for an option to purchase as an essential term in a hire-purchase agreement. He relied on Section 4 of the 1965 Act. I think he has not fully adverted his mind to Section 20 of the Act to which I had earlier made reference. In any case Section 4 of the 1965 Act merely deals with implied conditions and warranties in a hire-purchase agreement and did not attempt to set out the fundamental terms in a hire purchase agreement.

After examining Exhibit F closely, I have come to the conclusion, as did the Court of Appeal, that it was a Hire Purchase Agreement between the 1st defendant and 2nd defendant. The right to terminate the agreement is not only provided in Clause 16, but an option to purchase can be read into the terms of Clause 9.

The decision that Exhibit F was a hire-purchase agreement naturally meant the end of the claims of the plaintiff/appellant for the 1st defendant who sold to him had no property in the vehicle and so had nothing to sell. It was in fact the finding of the learned trial judge that the 1st defendant perpetrated a massive fraud on the 2nd defendant.

In evidence, the 2nd defendant testified that apart from two instalments and the deposit, the 1st defendant had not paid him any more money. The 1st Defendant was obviously misappropriating all the money paid to him by the luckless appellant. The 1st defendant being in breach of the hire-purchase agreement with the 2nd defendant, the right of the 2nd defendant to seize the vehicle was not open to question. See Lawrence v Benthworth Finance (Supra) and no action such as was filed by the plaintiff/appellant could be successfully maintained against him.

Section 9 of the Hire Purchase Act 1965 which dealt with restrictions on the recovery of the chattel by the owner was amended by Section 2 of the Hire-Purchase (Amendment) Act 1970. The amended form which is now Section 9(5) provides as follows:-

“In the application of the foregoing provisions to motor vehicles, where three or more instalments of the hire-purchase price of a motor vehicle under the agreement are due and unpaid, the owner may remove the motor vehicle to any premises under his control for the purpose of protecting it from damage or depreciation and retain it there pending the determination of any action, and the owner shall be liable to the hirer for any damage or loss which may be caused by the removal”

It was for these reasons that I dismissed the appellant’s appeal on 11th February, 1986.

OBASEKI, J.S:C.: On the 11th day of February, 1986, I dismissed this appeal and reserved my reasons for the judgment till today, 9th day of May, 1986. I now proceed to give the reasons.

The appellant was plaintiff in the high court of Rivers State, Port/Harcourt Judicial Division who took out a writ of summons against the respondent as 2nd defendant and one other Moshudi Funso Ogundana, who has not appealed either to the Court of Appeal or to this Court, claiming: “1. The return of plaintiff’s Toyota Hiace Bus No. RV 1554A seized by the defendants at Port Harcourt on or about the 11th of September, 1979 or the payment of the sum of N10,000.00 representing the value of the said vehicle at the time of seizure;

2. The sum of N10,000.00 as special and general damages for wrongful seizure and unlawful detention of the said vehicle by the defendant’s for a period of 123 days, i.e. between 11th September, 1979 and 11th of January, 1980 inclusive.

Particulars of Damages

(a) Special Damages: loss of earnings for 123 days at N50.00 a day N6,150.00

(b) General Damages 3,850.00

TOTAL N10,000.00”

He won in the High Court but lost in the Court of Appeal against the respondent. Being dissatisfied with the decision of the Court of Appeal, he appealed to this Court. What then are the facts of the case The facts are fully set out in the Reasons for Judgment just delivered by my learned brother, Nnamani, JSC, the draft of which I had the privilege of reading in advance. I am in complete agreement with those reasons and they were the reasons upon which my dismissal of the appeal was founded.

I shall therefore not proceed to deal with the facts except such as are necessarily indispensable in the consideration of the point at issue.

The facts that clearly emerged and found by the trial judge are that the 2nd defendant sold motor vehicles on hire purchase to the 1st defendant and the 1st defendant in contravention of his hire purchase agreement purported to have sold on hire purchase the same vehicle to the plaintiff/appellant under the guise of credit sale. The questions for determination in this appeal therefore are two folds:

(1) was there any hire purchase agreement between the 2nd defendant and the 1st defendant in respect of the vehicle seized

(2) if the answer to the 1st issue is in the affirmative, is the agreement of sale whether hire purchase or credit sale between the 1st defendant/respondent and the plaintiff/appellant admissible, valid or void

These issues have received detailed treatment in the Reasons for Judgment delivered by my learned brother. Nnamani, JSC and he found that there was a hire-purchase agreement Exhibit F and that the agreement was not inadmissible in law and was admitted without objection. I agree with him in his opinion that not having challenged the admissibility of Exhibit F in the High Court, it is not open to him to challenge the admissibility of the document. In fact, it is too late in the day to do so and Exhibit F was properly admitted in evidence having been pleaded by the 2nd defendant/respondent. I also agree with him that Exhibit F qualifies under the Hire Purchases Act as amended by the Hire Purchase (Amendment) Decree 1970 as a Hire Purchase Agreement.

That being so, and as the 1st defendant has defaulted in the payment of several instalments due, the 2nd defendant/ respondent was entitled to seize the vehicle.

In a hire purchase agreement, there are two principal rights of the owner of the goods let to the hirer. These are:

(1) the right to repossession of the goods, upon breach of a term of the hire purchase agreement which exists until the hirer after payment of all hire rentals due under the agreement, purchases the same by exercising his right under the option clause and

(2) the owner’s right to the hire rentals due under the hire-purchase agreement for any period which the hirer in fact made use of goods.

These two rights must always be considered separately. See Lawrence v. Benthworth Finance (1965) 1 All NLR 378 at 381 per Idigbe; J.S.C. On the basis of the evidence tendered in the trial court and accepted by the learned trial judge and the Court of Appeal that the 1st defendant defaulted in payment of hire rentals after payment of two instalments, the 1st defendant was in breach of the Hire-Purchase Agreement with 2nd defendant/respondent. The right of the 2nd defendant/respondent to seize the vehicle vested and was not open to question. The 1st defendant’s action in selling the vehicle to the appellant and collecting the purchase money without paying off the outstanding hire-purchase rentals and purchase price of the vehicle to the 2nd defendant bears a serious taint of fraud.

It was for the above reasons that I dismissed the appeal on the 11th day of February, 1986.

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Other Citation: (1986) LCN/2271(SC)