S.C.O.A.(Motors) Onitsha & Anor v. Chinwuba Abumchukwu (1973)
LawGlobal-Hub Lead Judgment Report
T. O. ELIAS, C.J.N.
In Suit No. O/162/1967 Egbuna, J., in the High Court, Onitsha, delivered judgment dated 10th January, 1972 in favour of the plaintiff.(herein respondent) against both defendants (herein appellants) in the total sum of 4,300 pounds made up as follows:
(i) Against the co-defendant for the return of the Peugeot family car No. LM 9231 or payment of its value..: 850 pounds
(ii) Damages for loss of earnings on the said vehicle at the rate of 9 pounds, 10s ‘0d per day as from 13th July, 1967 to 20th September, 1967 amount to…..470
(iii) General damages assessed at….10
(iv) Loss of earning for the year 1971 only assessed at 10 pounds
The plaintiff’s writ dated 21st September, 1967 was endorsed as follows:
“WHEREFORE the plaintiff claims against the defendant a total sum of 1 pounds,550 0s 0d, made up as follows:
(i) The return of the Peugeot family car No. LM 9231 or its value of 850 pounds 0s 0d.
(ii) Damages for loss of earnings on the said vehicle at the rate of 9 pounds 10:10d per day from 13th July to 20th September, 1967 ..572 pounds:10s
(iii) General damages limited to 127 pounds: 10s.
(iv) Loss of earnings from the 21st day of September, 1967 until judgment is given or the return of the vehicle
Total 1,550 pounds :0: 0d.
The statement of claim repeated the above in paragraph 12 thereof. At first the plaintiff sued only the S.C.O.A. (Motors) Onitsha, but by a court order dated 28th April, 1971 and made on the plaintiff’s application, Bentworth Finance (Nig.) Ltd. was joined as a co-defendant.
The facts of the case which arose out of a hire-purchase agreement may be summarised in the learned trial judge’s words as follows:
“That the plaintiff entered into a hirepurchase agreement with the co-defendant whereby he acquired a Peugeot family car No. LM 9231 for an initial payment of 515 pounds :5s and a further 686 :19s :4d payable by eight monthly instalments of 85 17s 5d commencing on 12th October, 1966, interest at twelve per cent per annum being payable on arrears of instalment. The plaintiff paid the 515 pounds: 5s and started to pay the balance of 686 pounds:19s 4d including hire charges at the rate of 85 pounds 17s 5d per month. He paid the instalments but did not pay the instalment for the month of April 1967. He made the payment for April in May 1967 as well as the instalment for the month. The plaintiff completed the payments in May 1967 and also in the same month paid the sum of 1 pounds which was to effect the transfer of ownership of the vehicle to him as per the agreement.
On 13th July, 1967 the defendant seized the Peugeot family car and detained it. This was the instruction of tbe co-defendant. The instruction was in writing and was given by the co-defendant which was signed by Bentworth Area Manager, Lagos. The plaintiff made repeated demands in person and through his solicitor for the return of the vehicle and later took out this action.”
In the statement of defence, the defendant company averred that it was ordered by the co-defendant to seize the vehicle and that it did so as the co-defendant’s agent. The defendant further averred that it had released the vehicle in question to the plaintiff and accordingly denied liability. The co-defendant, for its part, put forward the defence that the plaintiff had agreed to pay the rentals direct to Bentworth Finance Office in Lagos and that, without any written direction from the co-defendant or any reference to it, the plaintiff failed to pay the 7th instalment at Lagos on 12th April, 1967 but instead paid it to the defendant at Onitsha on 2nd May, 1967. Meanwhile, on 20th May, 1967 the co-defendant instructed the defendant to seize the motor-car.
The co-defendant admitted in its statement of defence that the last two instalments were paid to the defendant at Onitsha, but maintained that both payments were in breach of the hire-purchase agreement. The learned trial judge found that there was evidence by the defendant that due account had been rendered to the co-defendant by crediting the latter’s account with the two payments by the plaintiff and that the S.C.O.A. (Motors) Lagos was immediately informed.
The co-defendant did not deny that these payments were made to S.C.O.A., Onitsha or that the payments were communicated to the Branch dealer from whom the motor-car was collected. In fact, the co-defendant, apart from merely putting in its statement of defence, did not put in any appearance in this case and did not give evidence. The learned trial judge observed:
“There can be no doubt that the plaintiff did not follow strictly the terms of the Agreement as to payments. Indeed he paid more than he was supposed to pay at each instalment payment and the co-defendant accepted the extra payment made. In exhibits D, D2, D3, D4 and D5 the plaintiff paid the sum of 86 pounds which was more than the amount for each monthly instalment. All these five payments were accepted by the co-defendant. It seems to me that both sides did not strictly adhere to the terms as the co-defendant in these instalmental payments collected more than what was due to the Company. Admittedly they were offered by the plaintiff.”
After observing that the plaintiff had failed to make the payments in question at the due date and in the manner agreed upon, the learned trial judge found that the breaches did not go to the root of the contract to entitle the co-defendant to treat the contract as having been repudiated by the plaintiff. He also found that a penalty of 12% per annum interest was already provided in the hire-purchase agreement itself for any delay in paying an instalment such as that which occurred in paying the April 1967 instalments: see Financings Ltd. v. Baldock [1963] 1 All E.R. 443, at p. 450. The learned judge also found that the co-defendant admitted that the plaintiff had completed all the payments due in May 1967, but that the co-defendant nevertheless proceeded on 13th July, 1967 to instruct the defendant to seize the motor-car from the plaintiff to whom the ownership had been duly transferred on completion of all the payments. The authority given by co-defendant to the defendant to seize the car was dated 20th May, 1967 while the plaintiff’s final receipt (ex. D7) shows that the last payments were made on 22nd May, 1967. The learned trial judge found on this point as follows-
“It therefore follows that at the time the defendant received the order for seizure the plaintiff had already paid the 172 pounds :1s 11d to the defendant. The defendant knew this amount had been paid to them for the co-defendant in respect of the vehicle seized so they had no right then to execute the order. The co-defendant did not intend this order to be carried out if this amount is paid in full. This they made clear in paragraph 3 of their letter to the plaintiff and also in paragraph 3 of the letter of 20/5/67 authorising the seizure.”
The learned trial judge accordingly found that the defendant acted wrongly in seizing the motor-car contrary to the co-defendant’s express instructions.
Under the agreement the co-defendant had two choices in case the plaintiff made default to terminate the agreement with or without notice. He chose to proceed by giving notice in writing, which took effect only when received by the plaintiff. The notice (ex. N1) was dated 20th May, 1967 but no evidence was given as to the mode of its service upon the plaintiff-whether it was by personal service or by post. The plaintiff gave evidence of its receipt by post, which could not have taken place from Lagos to Onitsha by 22nd May, 1967 when the plaintiff had already paid in full in cash at Onitsha. The learned trial judge concluded:
“I find that at the time of the seizure the plaintiff had paid all the money outstanding and has exercised his option of purchase. This was done over one month before the seizure. The seizure was therefore wrongful and the plaintiff in my view is entitled to the return of his vehicle.”
The learned trial judge also held, rightly in our view, that the defendant was not sued on the agreement but only for wrongful seizure of the motorcar, its return or payment for its value, and damages for loss of earnings in consequence of the seizure, and that since the defendant acted as agent of the co-defendant, the latter is bound by the formers act and is vicariously liable to the plaintiff for the resulting damage. In any case, the co-defendant did not in their pleadings disown the defendant.
Finally, the learned trial judge found that the defendant’s averment that the vehicle had been returned or released to the plaintiff had not been proved in evidence. On the other hand, the plaintiff satisfactorily established that 9 pounds 10s 10d per day represented his earnings in running the vehicle as a taxi and his profit after deduction of all expenses; his evidence was not challenged. He accordingly gave judgment against the defendant and co-defendant as already indicated above, including damages for “loss of earnings up to the date of judgment as claimed”.
It is against this judgment of Egbuna, J., that the present appeal has been brought. Of the seven grounds of appeal filed, only one was argued and it reads:
“(7) Error in law:- The learned trial judge having awarded the plaintiff the value of the vehicle erred in law in making further awards to plaintiff in respect of loss of earnings for any period after the issue of the writ.”
The whole question argued by counsel on both sides turned on the novel issue as to the proper amount of damages that can be claimed for loss of earnings in an action of detinue for the return of a motor-car used by its owner as taxi before the detention by the defendant, and also whether the loss of such earnings should be reckoned only up to the date of the writ or up to the date of judgment. In favour of awarding damages for such loss up to the date of the judgment was Mr Adogu, learned counsel for the respondent, whose contention was that the learned trial judge’s decision was the right one, and cited Strand Electric Co. v. Brisford Entertainments [1952] 1 All E.R.796, at p. 800. As against this, Mr Ofodile contended that the award made by the learned trial judge should have been limited to the date of the issue of the writ and no more, pointing out that the Strand Electric Co. case cited by learned counsel for the respondent does not apply to the facts of the present case. We note that the exact point does not appear to be covered by any authority either in English or in Nigerian law.
In view, however, of the state of the plaintiff’s pleading we think it unnecessary to decide the point. As can be seen from both the plaintiff’s writ and his statement of claim which we have set out above, he made it clear that he was claiming against the defendant “a total sum of 1,550 pounds” made up of four enumerated items including the last which is left blank as to the exact amount, but below the entire list the total is still stated to be 1,550 pounds. It is clear that the first three items amount to 1,550 pounds. In this connection it is interesting to quote the respondent’s own evidence in the lower court on this point:
“On 27/9/67, I took out this action. I am claiming return of my car or 850 pounds the value. I am also claiming loss of earning from 13th July, 1967 to 20th September, 1967 which was 572 pounds 10s. I calculate it at 9 pounds 10s 10d per day. I am also claiming 127 pounds: 10s general damages. I am also claiming from 21/9/67 to date of judgment. The total amount is 1,550 pounds 0s 0d.”
Again, the respondent later testified as follows:
“I remember when I first came to court. I went before Mr Justice Oputa. I remember my claim then. I was claiming 1,550 pounds. It included loss of vehicle, loss of earning and general damages.”
Now, we do not think it right for the learned trial judge to have awarded the respondent more than the amount he had claimed in his writ, in his statement of claim and in his evidence in court. While a court may in a proper case award less than is claimed in a writ, the court cannot and should not award more than the amount of plaintiff claim: See Order 3, r. 3 of the High Court Rules of the East-Central State of Nigeria.
For the foregoing reasons, this appeal succeeds and the amount of 4,300 pounds awarded as damages cannot be allowed to stand. The appeal as to the damages awarded is allowed and the award is accordingly set aside. Instead we award the plaintiff/respondent damages enumerated as follows:
(i) Against the co-defendant for the value of the Peugeot Family Car No. LM 9231… .850 pounds 0s 0d
(ii) Damages for loss of earnings on the said vehicle at the rate of 9 pounds:10s:10d per day as from July 13, 1967 to September 20, 1967…………..470 pounds :0s 0d
(iii) Damages for further loss of earnings…..220 0s 0d
(iv) General damages……… 10 :0s 0d
Total:……… 1,550 pounds :0s 0d
We award to the appellants 40 as costs in the court below and N126 as costs in this court.
Damages reduced to amount claimed.
Other Citation: (1973) LCN/1741(SC)
