Nasco Management Services Ltd. V. A.n. Amaku Transport Ltd. (1998)

LawGlobal-Hub Lead Judgment Report

EDOZIE, J.C.A.

This is a motion on notice which stemmed from an appeal against the decision of the Plateau State High Court sitting in Jos in a case where the respondent hereinafter referred to as the plaintiff claimed against the appellant, henceforth to be called the defendant, the sum of N3.240.000 as damages for the detention of the plaintiffs motor vehicle to wit, a tanker trailer registered as BO2913 P from the 16th day of December, 1993 until the 30th day of November, 1994 when it was released.

According to the plaintiff, on 27/11/93, one Ozur Ugoisi contracted with it to carry some white tallow (a petroleum product) the property of the defendant from Lagos to Jos for a consideration of N45,000.00. While the plaintiffs driver called Asiniyu Lasisi was conveying the tallow, the trailer was involved in an accident near Ogbomosho as a result of which some quantity or the tallow was lost by spillage. After police investigation, the plaintiffs driver arrived Jos on 15/12/93 and delivered the remaining tallow to the defendant on that day and was about to return to Lagos the next day being 16/12/93 when the defendant prevented him from driving the trailer back to Jos. Despite the repeated demands by the plaintiffs managing director for the release of the trailer and the assurance that the cost of the spilled tallow would be settled by his insurance company, the defendant continued to detain the trailer until 30/11/94 when it was released upon the orders of the court. In consequence, the plaintiff suffered the loss of N3.240.000 as earnings during the period of the detention of its said trailer.

The defendant denied detaining the plaintiff’s trailer alleging, inter-alia, that the plaintiff’s driver upon being granted permission to park the trailer in the plaintiff premises left the trailer there promising to come with the plaintiffs managing director but failed to do so.

After considering the evidence led by the parties, the court below rejected the Defendant’s defence and entered judgment for the plaintiff in terms of its claim with N50,000 costs, Aggrieved thereby, the defendant by notice of appeal dated 25th day of July 1995 lodged an appeal to this court upon four grounds of appeal.

Thereafter the defendant has brought the present application on notice seeking to amend the notice of appeal by adding thereto grounds 5 and 6 and to raise fresh issues therein, The application is on notice and is dated 3rd October, 1997 and was filed the same day in the registry of this court. The reliefs sought therein are couched in the following terms:

“(a) An order granting leave to the applicant to raise and argue fresh issues in the terms of grounds 5 and 6 of the amended notice and grounds of appeal herein marked as Exhibit ‘A’.

(b) An order amending the applicant’s notice and grounds of appeal by an addition thereto of the grounds of appeal in the terms of grounds 5 and 6 of the amended notice and notice of appeal marked as Exhibit ‘A’ hereof.

(c) An order deeming the amended notice and grounds appeal as duly filed and served.”

In support of the application, one Joseph Onaji, a litigation officer of the defendant’s solicitor, swore to an affidavit of seven paragraphs the more pertinent averments being the following:

“4 I am informed by J. D. Morolayo Esq and I verily believe him to be true as follows:

(a) that pursuant to his instructions, he filed a notice of appeal on the 11th day of August. 1995;

(b) that he was served with the record of proceedings in respect of this appeal in October, 1996;

(c) that upon reading the record of proceedings he noticed that the plaintiff’s claim was formulated in tort and the primary tortfeasor was not joined in the action;