Alhaji Shaibu Abdulkareem V. Incar Nigeria Limited (1984)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C. 

It is necessary to state the facts of this case in some detail, as they are material to the points of law which have been raised before this court.

The appellant, Alhaji Shaibu Abdulkareem, was the plaintiff in the court of trial, the Kano High Court, where he claimed against the defendants, who are now the respondents to this appeal, for –

“(1) an account be taken of the entire transaction and the moneys which he has paid to the defendants to determine whether or not the defendants can repossess any of the vehicles,

(2) damages for breach of contract/warranty: N200,000.00,

(3) an injunction restraining the defendants from further seizing any of the vehicles now in the possession and custody of the plaintiff,

(4) release and possession of the said vehicles, registration Nos. KNF 3651 and KN 6638K now in custody of the defendants or in the alternative for the value of the said vehicles.”

The defendants, a limited liability company, were at all material times, motor dealers. They sold for cash as well as conducting transactions on hire purchase. The plaintiff was a customer of the defendants and for this particular transaction, the parties entered into twenty seven hire purchase agreements, one agreement for one vehicle. Of the twenty seven vehicles, 15 were of a new type, that is, a type that had never featured in previous transactions between the parties. The remaining twelve were of the old type to which the plaintiff was used. The parties were agreed on these facts. However, they differed on the question of reliance on a warranty allegedly given by the defendants’ manager to the plaintiff. In his statement of claim, the plaintiff had claimed that –

“4. During the negotiation leading to the purchase of these FIAT 110 PC type of vehicles (that is, the fifteen of a new type), the plaintiff entertained fears that they might not be good on Nigerian roads as they were introduced into the country for the first time but the defendants manager, Mr. Giovanardi, before whom the fears were expressed, warranted to the plaintiff that they were as good as the older type known as FIAT 682 T3 and the plaintiff relied on the said warranty in entering the said agreement………………………………

5. Relying upon the said warranty and induced thereby, the plaintiff entered into a series of hire purchase agreements with the defendants in respect of the said motor vehicles…………….. and accepted delivery, of the said motor vehicles, and has paid the hire purchase price under the said agreements amounting to a total sum of N615, 149.62 out of hire purchase price…………….
6. In breach of the said warranty, 15 of the said motor vehicles were not in perfect condition or of merchantable quality and gave the plaintiff considerable trouble, in that they were in a bad and dangerous condition and were not roadworthy………..”

Mr. Giovanardi denied that he ever made these representations to the plaintiff. It was admitted by him that the plaintiff did complain about the defects in the fifteen vehicles, but then, according to the witness, the vehicles were repaired and they were used after the repairs, by the plaintiff for about two years.

In so far as the defendants’ case of novation of the agreement went, Mr. Giovanardi’s evidence is very important. He said –

“He (that is the plaintiff) paid up until May 1976. Thereafter he stopped (sic) vehicles (payment) on fifteen vehicles and on those he never complained of.

On 1st February, 1977 the accounts were rescheduled because the promissory notes were all unpaid. N511,000 of them (sic) into 12 instalment, adding N41,000.00 (sic) interest charges bring total to N552,000.00 into 12 promissory notes of N46,000.00. Plaintiff agreed to this account, and signed the new promissory notes and a paper acknowledging receipt of the old promissory notes Instead we could have seized all the vehicles and charged him to court. After February 1977, in May 1977 plaintiff complained of fifteen tippers which he could not manage anymore. After various meetings we decided that the fifteen vehicles should be returned to us and that in replacement we should give four new types 682 N3. He had written asking for 4 tippers 682 plus two semi-trailers. We did not agree……We did not reply. He approached us again and appealed to us and he finally agreed to return the 15 vehicles in exchange for the 4 new types, as proved by the fact that we insured and licensed them in his name………..”

The learned trial judge believed that Mr. Giovanardi made the representations complained of by the plaintiff and that the 15 vehicles were defective but he relied on a new contract, as would be seen presently, made by the parties after this representation and knowledge of the defect in the vehicles. Now, the exchange of letters that went on between the plaintiff and the defendants, which the defendants claim to be novation of the hire purchase agreements are exhibits 2 and 3. They are very important and I reproduce them herewith even at this stage of the judgment.