Andrew Ebohimi Omoijuanfo v. Nigeria Technical Company Ltd (1976)

LawGlobal-Hub Lead Judgment Report

IDIGBE, J.S.C.

By a hire purchase agreement of the 19th day of June, 1972, the appellant undertook to purchase from the respondents a Steyr Tipper for the total purchase of ‘a35,643 (N11,286.00).

Under the terms of the hire-purchase agreement (hereinafter called “the hire agreement”) the appellant was required to make an initial deposit of ‘a31502 (N3,004.00) before collecting the Steyr tipper (hereinafter referred to as “the vehicle”) and thereafter to make fifteen regular and consecutive monthly instalment payments of ‘a3276 (N552.00) on or before the end of each successive month, commencing from the 4th day of August, 1972 in order to complete payment of the total purchase price.

The appellant took delivery of the vehicle after making the initial deposit of N3004, and subsequently made regular instalment payments as provided in the hire agreement until August 1972; thereafter he made irregular payments,the last of which being N78 was on the 4th day of May, 1973. No payments were made for the months of June, July and August until the 25th September, 1973, when the appellant again paid the sum of N80.00 leaving outstanding a balance of N4,510.61 being arrears of instalments due and unpaid.

By letters EX.G and G1, dated 13th June, 1973, and 15th June, 1973, respectively the respondents drew attention of the appellant to the unpaid arrears of instalments and gave notice of their intention to repossess the vehicle. On the 4th October, 1973, the respondents repossessed the vehicle from the appellant who subsequently by an action filed in the High court of the Bendel State on 3rd day of December, 1973, claimed a total of N12,956.00 “as money had and received by the respondents”. Relevant portions of the statement of claim filed by the appellant pursuant to an order of the trial court read:

“(1) By a hire-purchase agreement entered into in Benin City. . . the defendant let to plaintiff a Steyr 568 2R Tipper . . . at a hire purchase price of N11,286.00 and the said tipper was delivered to the plaintiff on the 19th day of June, 1972 . . .

(2) On the 3rd day of October 1973, at which time the plaintiff had paid the sum of N6,856.00 under the said hire-purchase agreement, the defendant wrongfully and in breach of the provisions of Section 9(1) of the Hire-Purchase Act 1965 (and even as amended by the Hire-Purchase (Amendment) Decree 1970), repossessed the said Tipper from the plaintiff without the plaintiffs consent.

PARTICULARS

(i) ………………..

(ii) ……………….

And the plaintiff claims the sum of N12,000 as money had and received and costs.”

The respondents admitted that they repossessed the vehicle in October, 1973, but denied that they did so in breach of the Act (i.e.Hire-Purchase Act 1965), and they further averred in their statement of defence that, as owners, they repossessed the vehicle “which was immediately taken to their premises for purposes of protecting it from damage or depreciation pending the determination of the issues between the parties to the said hire-purchase agreement. ”

The learned trial judge after a very careful review of the evidence adduced by parties and consideration of the provisions of Decree No. 23 of 1970 made the following observations:

“It is admitted that at the time the defendants repossessed the vehicle the total amount of payment made by the plaintiff had exceeded three-fifths of the hire-purchase price and it is also admitted that there were no payments made for three successive months. Learned counsel for the defendants further stated that before they repossessed the vehicle they had written two letters Exhibits G and H (i.e. G1) to the plaintiff to bring the vehicle in order to satisfy themselves whether the plaintiff was complying with Clauses 3, 4, 5 & 6 of the Hire-Purchase agreement………amendment. Dr. Ijewere, learned counsel for the plaintiff maintains that the only legitimate interpretation which the court can give to subsection 5 of the Hire-Purchase (Amendment) Decree No.23 of 1970 is that in no circumstances could the vehicle be repossessed on October 4, 1973 after the payment of N80.00 was made on 25th September, 1973 and that before the defendants could repossess the vehicle under that sub-section they would have to wait for three or more instalments to fall due failing which any seizure by the company was wrongful.