Ayodele James V. Mid-motors Nigeria Co. Ltd (1978)

LawGlobal-Hub Lead Judgment Report

ANIAGOLU, J.S.C.

The plaintiff (hereinafter called “the appellant”) has appealed from the judgment of the High Court of the Benin Judicial Division holden at Benin dismissing his claim for 15,000 pounds for fraudulent misrepresentation, against the defendants (hereinafter referred to as “the respondents”), a claim instituted by him in 1971 in the Benin High Court of the then Mid-Western State of Nigeria. While the appellant has contended, upon the grounds of appeal filed, that having regard to the evidence adduced on either side before the trial court the learned trial Judge was wrong in dismissing his case, the respondents have urged on us to affirm the judgment and dismiss the appellant’s case but upon grounds other than those relied on by the court, their contention being that the appellant had failed to prove his case in accordance with his pleadings and deserved to have his case dismissed at the close of his case; that the learned trial Judge needed not to have gone into a determination of the evidence adduced by the appellant since the evidence was not in accord with his pleadings and should have been ignored. The issue in this appeal, therefore, strongly revolved around the validity of the respondents’ contention which emphasised the importance of pleadings in a civil action.

In the circumstances it is necessary to reproduce the statements of claim and defence filed by the parties. The Statement of Claim dated 15/10/71 and filed on 16/10/71 reads:

“STATEMENT OF CLAIM:

1. At all material times the plaintiff was a transporter carrying on business under the name and style of AJILEYE & SONS. 2. At all material times the defendant company was and still is a limited liability company registered under the laws of Nigeria and carrying on business as dealers in various types of vehicles. The defendant was also at all material times an Insurance agent or broker.3. On the 18th March, 1970 the plaintiff entered into a Hire-Purchase Agreement with the defendant for the sale of a new commercial vehicle described as HINO KA300 for the sum of 5,418:7pounds and the plaintiff will rely on the agreement at the trial of this action. 4. The said vehicle was later registered as WD. 3725. 5. Before the plaintiff took delivery of the vehicle, the defendant insisted that the plaintiff must insure the said vehicle with an Insurance Company called Continental Insurance Company Limited.
2. In April, 1970 the defendant in order to induce the plaintiff to insure the said vehicle with the Continental Insurance Company Limited represented to the plaintiff that the said Continental Insurance Company Limited was a genuine, sound and business-worthy company legally authorised to transact business in Nigeria.
3. In reliance upon the defendant’s said representation the plaintiff insured the said vehicle with the said Continental Insurance Company Limited and paid the sum of 360pounds (Three Hundred and sixty pounds) as premium for comprehensive insurance through the defendant company which issued Continental Insurance Company Limited’s cover note as well as Certificate of Insurance. The plaintiff will at the trial of this action rely on both the cover note and the Certificate of Insurance. 8. The said representation was made fraudulently by the defendant in that the defendant knew that it was false. 9. On the 14th June, 1970 the plaintiff’s vehicle WD. 3725 was involved in an accident along Lagos/Kaduna Road and it was badly damaged. 10. On the 12th July, 1970, the plaintiff personally lodged a report of the accident to the defendant who advised that the plaintiff should contract the Continental Insurance Co. Ltd. directly and the defendant gave the address of the Insurance Company as 37, Sapele Road, Benin. 11. On getting to 37, Sapale Road, Benin, the plaintiff discovered that the Continental Insurance Co. Ltd. could not be located there at all and all efforts by the plaintiff and his solicitors to locate the whereabout of the Continental Insurance Co. Ltd. proved totally abortive. 12. On the 15th July, 1971, the Insurance Division of the Federal Ministry of Trade in Lagos in reply to the letter from the plaintiff’s lawyers Messrs. Gani Fawehinmi & Co. confirmed that Continental Insurance Company Limited was not a registered Insurer under the Laws of Nigeria. The plaintiff will rely on the said letter referred to above at the trial of this action.
4. A letter dated 17th July, 1971 and written by the plaintiff’s solicitors Messrs. Gani Fawehinmi & Co. to continental Insurance Co. Ltd. at 37, Sapele Road, Benin in connection with the accident involving plaintiff’s vehicle was returned unclaimed.
5. A photostat copy of the said letter from the Federal Ministry of Trade was forwarded to the defendant by the plaintiff’s solicitors Messrs. Gani Fawehinmi & Co. on the 18th July, 1971, accompanied by a letter demanding an explanation from the defendant. 15. Up till now, the defendant has failed to furnish the plaintiff or the plaintiff’s solicitors with any explanation at all.
6. The plaintiff’s vehicle which was being used for commercial business before the accident has been lying at the Police Station at Kaduna Motor Traffic Division after it was towed there soon after the accident occurred.
7. The plaintiff’s transport business which was being operated with the said vehicle WD. 3725 has been ruined by the accident as there is no existing Continental Insurance Company to meet plaintiff’s claim on the damaged vehicle WD. 3725. 18. As a result of the excessive damage to vehicle WD3725, the plaintiff has been unable to pay the monthly instalment of 326:10:7pounds under the Hire-Purchase Agreement referred to in paragraph 3 above. 19. Before the accident, the plaintiff was realising a net monthly profit of 400pounds (Four hundred pounds) and since the accident the plaintiff has lost these profits and consequently he has been unable to pay the monthly instalments due under his purchase agreement.
8. By reason of the defendant’s said fraudulent misrepresentation the plaintiff has suffered loss and damage.

SPECIAL DAMAGES: Outstanding instalments dueon the vehicle as per Hire

Purchase Agreement dated 18th March, 1971, 3, 9187pounds

GENERAL DAMAGES: 1 1,081:13pounds

Total- 1 5,000pounds

Whereof the plaintiff claims as per his writ of summons.

Dated THIS 15th day of October, 1971

(Sgd.) Gani Fawehinmi

plaintiff’s Solicitor.

116, Denton Street,

Ebute-Metta.