Oscar Concord Finance and Securities Limited V. Mr. O. Ogunleye (2007)
LawGlobal-Hub Lead Judgment Report
CLARA BATA OGUNBIYI, J.C.A.
By a writ of summons taken out and also statement of claim dated the 16th March, 1993 at the High Court of Lagos State in Suit No.ID/543/93, the plaintiffs claim against the defendant reproduced at page 3 of the record of appeal vide the writ of summons is for the sum of N225,250.00 being special and general damages suffered by the plaintiff as a result of the breach by the defendant/company.
PARTICULARS:
Cost of BMW Saloon car -N 140,000.00
Cost of hiring the said car for
31 days I.V. 11th January, 1993
to February, 16th 1993 at N1000.00 – 31,000.00
per day
Cost of Agreement and Registration
Fees paid to the Defendant – 4,250.00
General Damages – 50,000.00
TOTAL 225,250.00
Pleadings were filed and exchanged between parties. The plaintiff testified in the action but did not can any other witness in support of his claim. In the same vein, the defendant also called only one witness in Support of their defence.
At the end of the proceedings and on the 27th February, 1997, the lower court in its judgment granted the claims of the plaintiff in part and proceeded to award to the plaintiff against the defendant the sum of N450,000.00 being the value of the car as per the 1st leg of the plaintiffs claim in the action. The 2nd leg of the claim in respect of the general damages for breach of the loan agreement was however dismissed.
It is significant to mention that the particulars of claim relied upon by the learned trial judge in awarding the damages were lifted from the document styled “Reply to the Statement of Defence and further information on claims” at page 38 of the record, wherein paragraph 15 reproduced
states: –
“15. WHEREOF the plaintiff claims against the Defendant as follows:-
- The sum of N950,000.00 (Nine hundred and fifty thousand Naira only) being special and general damages suffered by the plaintiff as a result of the breach of the loan agreement.
- PARTICULARS OF DAMAGES:-
(A) Special: Cost of the plaintiffs
BMW-520 Saloon Car wrongfully sold
by the Defendants………………………..N450,000.00
(B) General Damages for breach of the Loan Agreement resulting in severe Deprivation and suffering for the Plaintiff since 17th of December 1992………………………..N500,000.00
TOTAL N950,000.00
Being dissatisfied with the decision of the court, the defendant as the appellant in the matter before us, filed a notice of appeal on the 7th March, 1997 wherein it filed four grounds of appeal.
By the leave of this court sought and obtained on the 30th November, 2000, the appellant filed an amended notice of Appeal on the 13th December, 1999 which same was however deemed filed and served on the said 30th November, 2000 and containing five grounds of appeal therein. Further. the appellant’s brief of argument dated 13th December 1999 and filed the same day was also deemed filed and served on said date, 30th November, 2000.
On the 12th March, 2007 when the appeal came up for hearing, the appellant’s learned counsel was absent while the respondent represented himself in court. The appellant’s brief was deemed argued vide order 6 rule 9(5) of the rules of court. Mr. Ogunleye however adopted his respondent’s brief dated and filed the 26th October, 2000, and accordingly urged us to dismiss the appeal.
Without much ado and from all indications, it is apparent that the respondent’s brief was filed ever before the appellant’s brief of arguments was served on him. The effect is to render the purported respondent’s brief of no legal consequence. In other words, the respondent in the absence of any leave sought and obtained to regularize his brief on the date the appeal was heard, cannot in the circumstance be heard on the said brief which is non existent. The said brief is therefore incompetent and is hereby struck out while the appeal would be determined on the appellant’s brief only.
From the five grounds of appeal the appellant formulated four issues for determination which are reproduced as follows:-
(a) whether or not the trial judge had power to grant to the Plaintiff/Respondent special damages of N450,000.00 which was neither claimed in the writ of summons nor proved before the court.
(b) Whether or not the Defendants/appellants were entitled to keep the BMW 520 car with Registration No. LA 3362 TA on the basis that property had passed in the same from the Respondent to the appellants.
(c) Whether or not the document filed by the Plaintiff/Respondent and dated 22nd November 1994
could legally constitute a reply to the statement of defence of the Defendant and if so was the trial judge
entitled to rely on same in awarding special damages to the Respondent.
(d) Whether or not Exhibit A the letter of offer of loan exclusively contained the terms and conditions of the loan transaction, and if not, was extrinsic evidence properly adduced to show the extent of the contract
between the parties.
In the determination of this appeal I intend to take the arguments of Appellant’s counsel on all the issues one after the other.
On the treatment of issue 1, for instance the learned appellant’s counsel, Alice Ngoo submitted and argued that the plaintiff is bound by the case put forward in his writ of Summons Reliance in support was made to the cases of Commissioner for Works, Benue State v Devcom Development Consultants Ltd. (1988) 3 NWLR (Pt.83) 407 at 420; Ayonboye vs Balogun (1990) 5 NWLR (Pt.151) 392. That the trial court would not grant a relief not claimed by a plaintiff, the authorities in point are:- Nwanya v Nwanya (1987) 3 NWLR (Pt.62) 697; Ademola v Sodipo (1989) 5 NWLR (Pt.121) 329; Ndiribe v Ogbogu (1989) 5 NWLR (Pt.123) 599; Nwachukwu vs Egbuchu (1990) 3 NWLR (Pt.139) 5335; and Ayanboye v Balogun (1990) 5 NWLR (Pt.151) 392. That the learned trial judge in the circumstance had no power to award special damages of N450,000= which was neither claimed in the writ of summons nor statement
of claim. That the order in awarding the said sum was made recklessly and without regard to the claims before the court. Counsel therefore urged us to set aside the said order in the interest of justice, and in accordance with the rule of law and fair hearing.
On the 2nd issue the learned counsel sought reliance on the various evidence given by both parties at the lower court together with the exhibits and submitted the legitimate reason for their keeping the vehicle in the absence of the respondent settling the loan received.
On Issue no 3, the “reply to statement of defence and further information on claim,” learned counsel argued same as negating the laid down principle of the purpose of a reply to a statement of defence. In other words that the law is trite and does not permit in a reply to a defence raising a new cause of action not set out in the writ of summons.
Learned counsel finally on Issue no 4 submitted reliance on section 132(1)(b) of the evidence Act wherein he contended Exhibit A, the letter of offer of loan did not exclusively contain the terms and conditions of the loan transaction between the parties. That there was in existence a separate oral agreement on areas where exhibit A was silent. Counsel on the totality therefore submitted the erroneous judgment of the lower court which same should be reversed while appeal is to be allowed.
For the determination of the issues raised, it would be pertinent to restate the nature of the plaintiff/respondent’s writ of summons, statement of claim, defendant/appellants’ defence and also the plaintiffs reply to the defendant’s defence therein. These are all evidenced at pages 2-5, 5-7, 15-17 and 33-39 of the record, respectively. The analysis of the plaintiffs writ of summons and statement of claim has been reproduced earlier in this judgment, and sum total claimed was N225,250.00. Paragraph 10 of the statement of claim at page 7 of the record was also not different from the claim laid on the writ of summons. Specifically, the said paragraph states that “The plaintiff therefore claims as per his writ of summons.” The defence response was exclusively centered on the said claim. Comparatively and with reference to the reply to statement of defence and further information on claims however, the plaintiffs – revised claim was for the total sum of N950,000.00; being special and general damages which are also all reproduced supra.
The question for determination is, what is the legal effect of the differential claim by the plaintiff on his reply to the defence vis-a-vis the claim per his writ of summons and statement of claim.
It is trite law that the plaintiff is bound by the claim put forward by him in his writ of summons and statement of claim. He is therefore not entitled to any other different relief deviating therefrom. The plaintiff on his statement of claim at page 7 of the record had claimed, as per his writ of summons. There was no order of court amending the said writ of summons and the statement of claim. The plaintiff cannot therefore put forward a claim different from that asked. In other words what he had sought for can only be found in the writ and the statement of claim and not in the Reply to statement of defence and further information on claim filed at pages 33-39. It is trite law and very elementary that the plaintiff is bound by the case put forward in his writ of summons; the authorities in point are:- Commissioner for Works, Benue State vs Devcom Development Consultants Ltd, (1988) 3 NWLR (pt.83) 407 at 420; Ayanboye vs Balogun (1990) 5 NWLR (Pt 151) 392.
It is also trite law as earlier stated that a trial court will not therefore grant a relief not claimed by a plantiff on his statement of claim. In the case of Nwanya vs Nwanya (1987) 3 NWLR (Pt.62) 697 one of the appellant’s complaints was that no relief was sought in respect of the N400.00 awarded the respondent being the value of the Volkswagen Saloon Car sold by the respondent, as she had not included that in the relief she sought. That the learned trial judge therefore erred in law in awarding the respondent that which was never asked for. In delivering the lead judgrnent Olatawura (J.C.A) (as he then was) at pages 705 and 706 said:-
……… It is difficult ……….. to give a relief to a party who has not claimed the relief…….., I am of the firm view that this cannot be done.” Also another related Court of Appeal authority is the decision of Nwachukwu v Egbuchu (1990) 3 NWLR (Pt.139) 435. The special damage awarded in that case was neither pleaded nor was evidence led thereon in support. Their Lordships per Onu J.C.A (as he then was) at page 444 therefore said,
“It was not asked for as a relief. The courts can only grant what is asked for.” Furtherstill and in the case of Ademola v Sodipo (1992) 7 NWLR (Pt.253) p.251 their Lordships of the apex court per Ogundare JSC at page 275 had the following pronouncements to make:-
“It is well settled rule that a court will not grant a relief not claimed by a plaintiff. In Ekpeyong v Nyong (1975) 2 SC 71, 80-81, Ibekwe J.S.C delivering the judgment of this court commenting on this rule, said….. we think that, as the relief granted by the learned trial judge were not those sought by the applicants, he went beyond his jurisdiction when he purported to grant such reliefs. It is trite law that the court is without power to award to a claimant that which he did not claim. This principle of law has, time and again, been stated and restated by this court that it seems to us that there is not longer any need to cite authorities in support of it. We take the view that this proposition of the law is not only good law, but good sense. A court of law may award less, and not more than what the parties have claimed. A fortiori, the court should never award that which was never claimed or pleaded by either party. It should always be borne in mind that a court of law is not a charitable institution; its duty, in civil cases, is to render unto everyone according to his proven claim. See also Oyediran vs Amoo & Ors. (1970) 1 All NLR 313, 317;
Omoboriowo vs Ajasin (1984) 1 SCNLR 108; Elumeze vs Elumeze (1969) 1 All NLR 311; (1969-1970) NSCC 293, 294.”
At page 78 of the record of proceedings the learned trial judge in his judgment said:-
“Plaintiff is a layman who is conducting the case for himself. The document referred to herein ought to be “an amended statement of claim” instead of reply. However, the document shall be used for the purpose of this case.” The propriety or not of the decision by the lower court made suo motu without an input by the appellant calls to question the justice of the conduct of the case as relates to the appellant. In other words, and in my view, it was not open for the learned trial judge at that stage to have decided in favour of the respondent to the detriment of the appellant who had no opportunity of being heard thereon. It is unfortunate that the respondent is indeed a layman, the same law however rules that ignorance of the law is also not a defence.
In the case of Prof. N. O. Adeniji v Prof. B. I. A. Fetuga (1990) 6 NWLR (pt.150) 375 relied upon by the appellant’s counsel, the Court of Appeal per Mustapha Akanbi J.C.A (as he then was) said amongst others:
‘…issue is whether or not a plaintiff can in his reply to a statement of defence raise fresh or new matters hitherto not stated in the writ of summons or pleaded in his statement of claim in order to either strengthen his case or set up a new cause of action or raise any new ground of claim… A reply to my mind is the plaintiff’s answer or response to any issue raised by the defendant in his defence and which the plaintiff seeks to challenge, deny or admit or object to either on grounds of law or a misstatement of the cause of action. It is not permissible in a reply to the defence to raise a new cause of action not set out in his writ of summons. A plaintiff must not in his reply make any allegation of fact or raise any new grounds of claim different from what is contained in his statement of claim ‘- that is to say there must be no departure from the statement of claim. See Herbert vs Vaughan (1972) 1 W.L.R. 1128; (1972) 2 All ER 122. In the instant case the plaintiff in paragraph 4(a)(1) and (2) of the “Amended Reply to the Statement of Defence of the Defendants” introduced a new cause of action founded on an alleged statement made in connection with the “Bench fees of Mr. Ikurior.” That was not part of the statement of claim .. It is a fresh allegation which ought not to have been accommodated in the reply. That paragraph should have been struck out. Unfortunately it formed one of the major planks on which the trial judge based his decision. He was clearly wrong to have done so. (the emphasis is mine.)
The authority under reference speaks for itself and this I hold because comparatively the plaintiffs statement of claim at the trial as well as the writ of summons were not the same as the “reply to statement of defence and further information on claims.” The latter reliefs claimed sought to introduce new reliefs different from the former and aimed without the leave or order of the court. This is contrary to the spirit of the case of Adeniji v Fetuga supra.
As rightly submitted and argued by the learned appellant’s counsel, the learned trial judge ought to have struck out the entire document purporting to be a reply. In other words the judge erred to have relied on same especially in awarding the special damages it did to the plaintiff. In the exercise of the powers conferred on this court by section 16 of the Court of Appeal Act therefore, I hereby strike out the entire document purporting to be a reply.
However and with the striking out of the said purported reply, the effect does not have any bearing on the initial writ of summons and the plaintiff’s statement of claim, upon which the lower court was entitled to determine the plaintiffs’ claim.
The next issue for consideration is whether or not the appellant as defendant was entitled to keep the BMW 520 car, the subject matter, In other words whether deducing from the evidence before the lower court, the circumstance depicts that the car was either sold to the appellant or that the property in the vehicle had ordinarily passed to its possession in keeping with the terms of the agreement. This was a matter of evidence, at the lower court. The appellant relied upon extracts of evidence adduced before that Court by both the plaintiff and the defendant. At page 85 of the record for instance, the learned trial judge said:-
“I am unable to find any material before me that the plaintiff agreed to sell his motor car to the defendant
company.”
The central document governing the agreement between parties is exhibit “A” and same is titled “Re: Application for loan Facility of N50,000=” It is apparent that the condition provided therein is that of a “Personal guarantee of a responsible personality”. There is however nowhere in the agreement that the plaintiff should deposit his motor car NO.LA3362AT as a collateral for the loan facilities given to him. The defendant/appellant did not deny collecting the plaintiff’s motor vehicle. The plaintiff gave evidence of the defendant converting his vehicle into its own property. With the evidence of conversion given by the plaintiff therefore, the burden had shifted onto the defendant to have refuted same and adduced proof of an outright sale of the vehicle.
Section 137 of the Evidence Act relating to burden of proof in civil cases applies; and specifically subsection (2) states as follows:-
“If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively until all the issues in the pleadings have been dealt with.”
The condition of the term “personal guarantee” is not synonymous with taking the motor car as a collateral security for the loan. The plaintiff in his testimony at pages 40 and 41 of the record also had this evidence to say:-
“I then asked for N50,000.00 loan and I would deposit my car as a “security for the loan……and I signed all forms including the letter authorizing the company to sell the motor car in the event of default …….. I then gave the car with particulars to Mr. Ekele who promised to jack the car and remove the Battery also Mr. Egele then took the key of the motor car from me ……
Around 7th January, 1993, when Mr. Ikola came back from holiday, I discovered that he had parked my motor car in front of his house and not in the office. I found that the motor car has been damaged at the rear and engine oil was coming from the silencer. The motor car has been used roughly.”
The only defence witness one Paul Ikele, the Chief Executive of the defendant company, testified at page 53 of the record and said:-
“Plaintiff came and accepted the conditions but in the process he did not produce the guarantor. Plaintiff told us that the guarantor refused to turn up. Plaintiff then offered to sell his car to us for the loan ….. The plaintiff gave us a letter of transfer of the motor car, we then disbursed the sum of N50,000.00 to the plaintiff …… He brought the car and he went away with the money. We then went to effect a change of ownership.”
The intent and purport of that which is contested in the 2nd issue is whether or not the act of the defendant/appellant amounted to a conversion of the item of security – the BMW car, to its private property and thereby claiming it for the amount loaned the plaintiff. The corollary question naturally arising therefrom is whether the plaintiff has the right to seek legal redress and ensure that the saloon car does not pass to the defendant for the paltry sum of N50,000=loaned to him.
The document Id. “X”, receipt for the purchase of the car was put in evidence but refused and marked rejected. Exhibit A also has nothing to do with sale of the vehicle.
The defendant/appellant’s only witness, in his evidence, testified to a receipt of sale by the plaintiff and his wife. On the pleadings however, the appellant claimed an oral suggestion to sell. The evidence therefore grossly contradicted the averment. There was no receipt of the alleged sale to backup the oral evidence, which cannot in the circumstance be relied upon.
Consequently, the basis upon which the defendant/appellant claimed the vehicle as a security for loan and subsequent exchange, had not been proved therein. The onus and burden lied squarely on the defence in the circumstance vide section 137 of the Evidence Act supra. Property could not have passed in the absence of any sale. The conditions given for the loan facility as clearly specified in exhibit A is very explicit, clear and did not by any stretch of imagination relate to the sale of the vehicle which was to be used as a security thereof. The confirmation of this is more explicit especially having regard to the further evidence by the appellant’s only witness at page 57 of the record wherein he said:
“Defendant has not paid any amount since he obtained the fund from us. Plaintiff was given a loan of N50,000.00.”
It is interesting that while in one breadth the appellant claimed the plaintiff having sold his motor car to them, in another breadth the appellant vide the evidence supra, testified that the respondent had not refunded the loan of N50,000.00 given to him. The two defences no doubt are highly irreconcilable. This is obvious because with the claim that the car was an outright sale it was not again open to the appellant to claim the amount of loan paid for the same car.
From all deductions of that before us, the truth of the matter in my humble view is that the defendant converted the plaintiffs vehicle into its own use contrary to the terms of agreement of the conditions of loan. The course of justice would not be met if the appellant were allowed to keep the said vehicle in question. This gate way would not be open to it.
On whether or not the learned trial judge had power to grant the N450,000.00 special damages to the respondent, recourse must be had to the claim before the court. In other words and as specified earlier supra, the Plaintiff respondent’s statement of claim and writ of summons specified the costs of the vehicle at the sum of N140,000.00. The said claim is a special damage and which same ought to be pleaded and proved. See the cases of Maduabuchukwu v Umunakwe (1990) 2 NWLR (Pt.134) 598; Igwe v kalu (1990) 5 NWLR (pt.149) 155, Ebay v Irek (1990) 7 NWLR (Pt.160) 83 and Shell Petroleum v Otoko (1990) 6 NWLR (Pt.159) 693. Special
damage has been defined as:-
“Such damages as the law will not infer from the nature of the act complained of. They are exceptional in
character and therefore they must be claimed specifically and proved strictly……. all the loses claimed on every item must have crystallized in terms and value before trial.”-
On the same principle are also the cases of Adodo v Ismail. (1998) 11 NWLR (pt.573) 214 at 224-225; Gamboruma v Borno (1997) 3 NWLR (Pt.495) 530 and Orient Bank (Nig.) Plc v Bilante International Ltd. (1997) 8 NWLR (Pt.515) 37.
It is significant to also relate that the respondent in his evidence did testify to the damage done to his car by the appellant. The principle of Ubi jus, ibi remedium applies. In other words, where there is a right, there is a remedy. It would not be just to give the respondent the vehicle in its damaged state. It would only be fair that he should be given the equivalent which amount is put at N140,000=per his claim. The cost of legal fee of N4,000= was also evidenced from the plaintiff respondent’s testimony. This, I hold, he is also entitled to as having been substantiated and proved. In respect of the claim of N31,000, being the cost of hiring a car for 31 days however, same was neither pleaded nor was any evidence given thereon.
It is trite law that any fact not pleaded in the statement of claim goes to no issue whatsoever, as the court cannot be turned into a charitable organization and thus giving out what has not been asked for.
On the final claim of general damages the law is trite that same ought to be “the direct natural or probable consequences of the act complained of … the court can make an award when it cannot point out any measure of assessment except what it can hold in the opinion of a reasonable man.” Adodo v Ismaila reference supra at pages 224 – 225 refers. This claim was neither laid nor proved by the respondent.
In the result and having regard to the claim before the lower court, the respondent was therefore entitled to the sum of N140,000= being the cost of the BMW Saloon car plus N4,000=an agreement fees. In the absence of the respondent claiming the sum of N450,000.00 as special damages, the learned trial judge erred in granting the said amount. The court I hold, was rather clothed with the power to award damages to the tune of N144,000=which same was pleaded and also asked for.
The learned appellant’s counsel sought to rely on section 132(1)(b) of the Evidence Act and therefore re-iterated the existence of a separate oral agreement in addition to Exhibit A to deposit the plaintiffs’ car with the defendant as collateral. With due respect to the said learned counsel, the term of exhibit A is very clear, relating to the security required to wit “Personal guarantee of a responsible personality”. This to my mind has nothing to do with an external guarantor as sought to be modified by the appellant on its paragraphs 4 and 5 of the statement of defence. The provision of section 132(1)(b) of the Evidence Act relied upon would in my humble view therefore operate against the appellant in the circumstance. In other words the purport of Exhibit A cannot be curtailed by introducing the provision of section 132(1)(b) of the Act. The contention and argument by the appellant in that respect does not therefore hold.
In summary and having regard to the appeal before us, on the one hand, while the appellant succeeds on its issue no (c), issue no (a) is also partially resolved in its favour to the extent that the learned trial judge had no power to have granted special damages to the tune of N450,000.00 which such claim was not contained on the plaintiff’s writ of summons and the statement of claim. On the other hand however, issues (b) and (d) are resolved against the appellant. In the result therefore, the plaintiff/respondent in the circumstance, is only entitled to the cost of the damaged vehicle in the sum of N140,000= and the fee of N4000 paid in respect of the loan thereof.
The appeal in totality succeeds in part, and consequently, the judgment of the owner court in awarding the sum of N450,000.00special damages is set aside while I enter in its place a judgment in the sum of NI44,000.00 to the plaintiff/respondent. I further make an order that each party bears its own costs of the appeal.
Appeal succeeds in part and I make no order as to costs.
Other Citations: (2007)LCN/2411(CA)
