Horst Sommer & Ors. V. Federal Housing Authority (1992)

LawGlobal-Hub Lead Judgment Report

OMO, J.S.C. 

The plaintiffs/appellants claimed in the High Court of Lagos the sum of N1.5 million as damages for wrongful seizure and conversion of plant, machinery and equipment, in the premises of the defendant/respondent, which they claimed to belong to them.

The case of the plaintiffs/appellants is that these plants, machineries etc, were ordered by them and leased to the contractors of the defendant/respondent in the development of the Festac Village, known as Condotte Garbodi (Nigeria) Limited. The defendant/respondent, on the other hand, contends that the aforementioned equipments were purchased from mobilization funds given by them to the said contractors: and brought on the contract site within the Festac Village, where they used them for their work. Following their failure to fully perform their contract and pursuant to agreement between them and their contractors, ownership of the assorted equipments on the site passed on to it. It is admitted by the parties that the equipments have since been disposed of by defendant/respondent.

After hearing the parties and counsel on their behalf, the learned trial Judge decided that the plaintiffs/appellants (hereinafter) called “appellants” simpliciter) had proved their case on a preponderance of evidence led and awarded them N 1.million as value of the equipments seized by the defendants/respondents (referred to simply as “respondent” hereafter). He also awarded the appellants the sum of N200,000.00 as “probable profit which could have been made by them”. And N1.000 as costs.

The respondent, not satisfied with that judgment filed an appeal in the Court of Appeal against same. 7 issues were set out in its brief for determination by it (as appellant) as follows:-

(1) Did the Appellant award road construction project to Condotte Garbodi (Nigeria) Ltd. later known as Afro-Atlantic Devco (Nigeria) Limited as per Exhibit “6” the contract Document

(2) Did the Plaintiffs/Respondents show any documentary evidence of the ownership of the disputed equipments, etc., as listed in the Statement of Claim

(3) In as much as the disputed equipments, plants etc., were assorted and of different kinds and models, was there any documentary evidence e.g. invoices, receipts, showing the different prices tendered by the Plaintiffs/Respondents to authenticate the value of the disputed goods since the Plaintiffs/Respondents claim was based on special damages which in law must be strictly proved

(4) Were the Plaintiff/Respondents in the light of Exhibit “E” written by 3rd Plaintiff/Respondent Shareholders/Managing Director/Chairman in the company known as AFRO-ATLANTIC DEVCO (NIGERIA) LIMITED hitherto known as Condotte Garbodi (Nigeria) Limited to which the Appellant awarded and executed a road construction project

(5) For whom was the disputed equipments etc., bought and invoiced to or was there any hiring agreement of the disputed equipments, etc, between the Appellant and Respondents

(6) There was no averment in the Statement of Claim about any hiring agreement and no specific reference was made to any written hiring agreement.

(7) Were Exhibit “H” and “J” which were admitted in evidence and which were not specifically pleaded by the Respondents and especially Exhibit “H” which Counsel for the Respondents relied upon in his address in discrediting the 2nd witness for the Appellant who was at the material time of this action the Managing Director of Afro-Atlantic Devco (Nigeria) Limited (Vide Lines 5-6 pages 65 of the Record) when he was giving evidence for the Appellant in the Lower Court, (My addition: properly admitted)

The appellants, as respondents in the Court of Appeal, resolved the issues for determination into five, which they also set down thus:-

(1) Whether the court below ought to have given judgment for the value of the assorted goods itemized in the Plaintiffs’ Statement of Claim when their respective prices were not specifically pleaded and proved.