Chief D. O. Ogugua Vs Armels Transport Ltd (1974)

LawGlobal-Hub Lead Judgment Report

O. IBEKWE, J.S.C.

This appeal raises vital questions as to the liability of a bailee under the law. The main facts are not in dispute. The defendant is a limited liability company and carries on the business of common carriers and motor repair workshop and motor garages throughout the Federation of Nigeria. Sometime in October 1966, the plaintiff, a businessman, delivered his Mercedes-Benz Saloon Car Model 222S Registration No. ED 1965 to the defendants’ workshop at Aba for repairs and subsequent delivery to him at Dmuahia. The defendants accepted the vehicle. Accordingly, Job Cards Nos. G. 829 and 873 were issued for it.

But for reasons which would appear to be beyond the control of the defendants, the repairs were so prolonged that the plaintiff’s patience ran out, and he made repeated demands upon the defendants for the return of his car. Nevertheless, the defendants failed to repair and return the car to the plaintiff. In the end, the car remained in the Defendants’ workshop from October, 1966 to September, 1968 when Aba was over-run by Federal troops and the said car was abandoned by the defendants.

The plaintiff, therefore, instituted this action in the Aba High Court, claiming from the defendants as follows:

“‘4,821pounds:;8:8d. being general and special damages for loss of plaintiff’s car No. ED 1965 Mercedes Benz Model 222S entrusted to the defendant for repairs at Aba on or about 25th October, 1966”

“Or in the alternative damages for breach of contract to repair and deliver the said car to the plaintiff which the defendant has failed so to do.”

At the trial, the issues, by consent of counsel on both sides, were narrowed down. Dealing with this aspect of the case in his judgment, the learned trial judge said, inter alia, as follows:

“Following the trend of the pleadings generally, and in particular, the issue of fact raised by the defence in paragraph 10. It seemed to me,having regard to the admissions made by the defendants, that the main issue to be tried was that raised in paragraph 10 of the defence. Both counsel agreed with me. They further agreed that as defence asserted the positive in this paragraph the defence had to begin.”

Paragraph 10 of the Statement of Defence referred to above reads thus:

“10 The defendant further states that it was the responsibility of plaintiff to evacuate his car from the defendant’s garage in Aba as agreed between the parties and as confirmed by letter No. ATELO/AMO/MISC/6 dated 4th September, and plaintiff’s letter dated 12th September, 1968 both of which will be founded upon at the trial.”

It is, therefore clear that the narrow issue which the Court was called upon to determine is as to whether the plaintiff at any time agreed to evacuate his car from the defendants’ workshop.

At the trial, the defendants tried without success, to establish this point. Kieran Onyekwere, D.W.1, the only defence witness who gave evidence to this effect, produced and tendered what purponed to be photo-copy of the letter of 4th September pleaded under paragraph 10 of the Statement of Defence. It is relevant to observe that the plaintiff’s counsel objected to the admission of the document on the ground that it was a photostat copy and that the original should be produced. The learned trial judge over-ruled him, but reserved for consideration in his judgment the weight to be attached to the document. The letter was accordingly received in evidence and marked Ex. “A”.

At the end of the day, the learned trial judge after carefully weighting the evidence before him, decided not to attach any weight to Ex. “A”, in the light of the following remarks recorded by him:

“Ex. “A” makes reference to a letter of the plaintiff allegedly written on 29th August, 1968 and states that an agreement was reached between the parties in the presence and hearing of the 1st defence witness and a Mr. Han and a Mr. Offiah. Neither Mr. Han nor Mr. Offiah was called. The letter of 29th August was not put in either by the defendants or the plaintiff I think, Ex. “A” was made in anticipation of this suit.”