Leventis Motor Ltd v. P. E. Agbajor (1971)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C.

Appellants were the plaintiffs in the High Court, Benin City, where they had claimed from the defendant the sum of 850Pounds being the outstanding balance still unpaid in respect of one mercedes benz 2208 saloon car sold to the defendant by the plaintiffs at Benin City on 8th May, 1964. According to their statement of claim, the car which was second hand at the time was offered to the defendant for 1,500Pounds. He agreed to pay this amount for the car, paid the sum of 650Pounds in cash that same day and then signed the plaintiff’s invoice. The balance of 850Pounds was to be paid within one month of the sale either by the United Dominion Corporation (Nigeria) Ltd. of Lagos to whom he was applying for a loan or personally if the Corporation defaulted. After three written requests by the plaintiffs for the payment of the balance of 850Pounds, the defendant, on receiving the last request written on 31st August, 1964, informed the sales manager of the plaintiff company that what he asked for was a home delivery car and not a second hand car.

The defendant disputed the claim. Although he admitted buying the car from the plaintiffs, he averred further in paragraphs 4(b, c, and d), 5, 7 and 9 of his statement of defence as follows:

“4(b) At the time of the agreement pleaded in paragraph 4(a) hereof the plaintiff in order to induce the defendant to buy the said car orally represented to the defendant that the said car was a ‘home delivery’ car i.e. that the car was purchased and used by its first owner in Germany and had never been used in Nigeria before the sale to the defendant.

(c) It was an implied condition of the said contract of sale that the said car was a ‘home-delivery’ car in the sense explained in para. 4(b) above.

(d) Further or in the alternative the said sale was a sale by description and it was an implied condition of the said contract of sale that the said car was a ‘home delivery’ car in the sense explained in para. 4(b) above.

5. In breach of the said conditions the plaintiff delivered to the defendant the said car on 8th May, 1964 but the said car had infact been used in Nigeria by its first owner between 1961 and 1963 at various places and in particular in Northern Nigeria, before it was sold to the defendant.
6. The defendant discovered that the said car was not a ‘home delivery’ car on 9th May, 1964 and on 10th May, 1964, invited the plaintiffs’ agents Messrs. C. P. Leventis (Junior) and G. O. Igbinedion to his office in Benin City and confronted them with his discovery.
7. By reason of the facts alleged in paras. 5, 6 and 7 above, the plaintiff has lost the right to claim 850Pounds as the balance of the contract price or any sum over and above 650Pounds paid by the defendant to the plaintiff upon delivery of the said car on 8th May, 1964, or at all.”

The defendant thereupon counterclaimed against the plaintiffs as follows:

(a) 1,000Pounds as general and special damages for breach of the conditions of sale of the contract; and

(b) 1,000Pounds being damages for fraudulent misrepresentation, i.e. deceit.

The evidence in support to the plaintiffs claim, given by Gabriel Igbinedion (1st PW) and the sales managers of the plaintiffs in Benin City at the material time may be summarised as follows. Following a discussion which he had earlier with the defendant about the purchase of a mercedes benz saloon car, he contacted the defendant on 8th May, 1964, after he had received a consignment of four of these cars, all second hand, from Lagos on 7th May, 1964. The defendant came to see him and after inspecting them decided to take one of the cars, a mercedes benz 2208 saloon. After informing the defendant that the price was 1,500Pounds, the defendant said he would like one Mr. Carol, their vehicle inspection officer, to examine the car. They both got into the car and drove it to the office of Mr. Carol who after testing the car said it was in very good condition. The car then had a current vehicle licence (Ex. 1) issued in the name of one Mr. Nzegwu. After the inspection, the defendant offered to pay 650Pounds in part payment for the car and to pay the balance of 850Pounds when he got a car advance from the Union Dominion Corporation (Nigeria) Ltd. The defendant then paid the sum of 650Pounds in cash and signed the plaintiffs invoice (Ex. 2) the contents of which are as follows:

62/No. 15751

8/5/64

DR. to LEVENTIS Motors Limited

Cash-for the following