Tsokwa Motors (Nig.) Ltd. V. Dejo Awoniyi (1998)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A

: The plaintiff instituted an action in the High Court of Justice of Adamawa State holden at Yola against the defendant. His claim as contained in his statement of claim reads:-

“Whereof the plaintiff claims against the defendant the sum of fifty seven thousand four hundred and eighty six naira being estimated value of the missing items in the plaintiff’s car while the same was in the defendant’s custody for the purpose of repairs.”

The facts of the case may be summarised as follows:-

The defendant is a motor company and carries on the business of motor repairs, among others, in Yola. Sometime in 1985, the plaintiff took his Peugeot 504 G.R. Saloon car to the defendant’s workshop for repairs. The defendant failed to repair the car and also refused to allow the plaintiff to carry away his car. The plaintiff was forced to sue the defendant at the Yola High Court for the recovery of the car. Judgment was given in favour of the plaintiff and defendant was ordered to return the car to the plaintiff. Despite the court’s order, the defendant still refused to release the car to the plaintiff. The plaintiff had to go the defendant’s workshop to retrieve his car in November, 1989. He went to the defendant’s workshop in company of some High Court staff. To his utter dismay the plaintiff found that his car was thoroughly vandalized. He discovered that thirty one items were removed from the car. He made a list of the missing items. The list was signed by the plaintiff, an employee of the defendant and a staff of the High Court. The defendant denied the plaintiff’s claim which it described as gold digging. The defendant also pleaded res judicata.

In a reserved and considered judgment, the learned trial judge Abba J., gave judgment in favour of the plaintiff.

Unhappy with this decision, the defendant appealed to this court. In accordance with the practice and procedure of this court, briefs of argument were filed and exchanged. In the appellant’s brief four issues were identified for determination. These are:-

“1. Whether having regard to the pleadings and the totality of the evidence before the trial court, including a proper construction of Exhibit ‘C’, the learned trial Judge was not violently wrong in holding that Exhibit ‘C’ is a list of missing items and consequently holding the defendant liable for the items alleged missing by the plaintiff.

2. Whether the learned trial Judge was not in error by not raising the presumption of section 149(d) of the Evidence Act against the plaintiff/respondent, and for failing to hold that where a document is pleaded but not produced oral evidence will be inadmissible in proof of the contents of the unproduced document.
3. Whether having regard to the totality of the evidence adduced at the trial of the case, the respondent proved his case to merit the judgment of the trial court in his favour.
4. Whether the learned trial Judge made a correct approach to the evidence led by the parties by coming to a conclusion on the evidence led by the plaintiff (now respondent) before considering that of the defence:-

On the other hand two issues were formulated for determination in the defendant’s brief. They read:-

“1. Whether having regard to the evidence adduced the 31 items listed are the missing items from the respondent’s vehicle registration No. PL 1740 JB when it was in the custody of the appellant.

2. Whether the learned trial judge was justified when he held that the 31 items listed in Exh. ‘C’ were the list of the items missing”.

Considering the issues formulated by the respondent, it could he seen that the two issues are talking of the same thing. It is a single issue split into two and that issue is the same as the first issue formulated by the appellant. I will therefore use the issues formulated by the appellant in the determination of the appeal.

On the first issue, it was submitted in the appellant’s brief that having regard to the pleadings and the totality of the evidence before the court and upon a proper construction of Exhibit ‘C’ the trial Judge was wrong in holding that Exhibit ‘C’ is a list of missing and not recovered items. The trial Judge was therefore wrong to proceed to hold the defendant liable for the items alleged missing by the plaintiff.

It was further submitted that Exhibit ‘C’ is titled “list of items recovered” the word “missing” was cancelled and did not form part of the title. It was also submitted that inspite of the pleadings, the viva voce evidence and the clear words of Exhibit ‘C’ that it is a list of recovered items, the trial Judge surprisingly held that it is the list of missing items despite the fact that the plaintiff himself admitted that Exhibit ‘C’ is the list or items recovered.

It was submitted that the trial Judge failed to observe the principles of interpretation of documents. He referred to Ashibuogwu v. Attorney-General of Bendel State (1988) 1 SCNJ 130: (1988) 1 NWLR (Pt.69) 138. It was submitted that if there was nothing to modify, alter or qualify the language contained in Exhibit ‘C’, it must be construed in the ordinary and natural meaning. The following authorities were cited in support of the submission – St James Hamstead v. Cortom (1887) 12 A.C. I and Joseph Ishola Williams v. T.A. Hammond projects Ltd. (1988) 2 SCNJ 318; (1988) 1 NWLR (Pt.71) 481. It was contended that the trial Judge was wrong in using the expressions “I believe” and “I find and hold” because the finding was not based on credible evidence or reasonable inference drawn from the facts presented by the parties: Orekepan v. Amadi (1993) 11 SCNJ 60. It was submitted that in making a finding of fact, the trial court merely saying “I believe” is not enough. There must he some indication of how the court arrived at such conclusion. See Oladehin v. continental Textile Mills Ltd. (1978) 2 S.C. 2 and Narumal & Sons Ltd. v. N.B.T.C. Ltd. (1989) 2 NWLR (Pt.106) 730. It was then submitted that there was no credible evidence on the record to support the trial court’s finding that Exhibit ‘C’ is a list of missing items, The finding or the trial court. It was claimed, was in contradiction of the evidence of the plaintiff and other witnesses.