I. B. Ogunsola & Anor V. Taiye Ibiyemi (2007)

LawGlobal-Hub Lead Judgment Report

JOHN AFOLABI FABIYI, J.C.A.

This is an appeal against the judgment delivered by Popoola, J. on 31st March, 1998 while sitting at the High Court of Justice, Ilaro in Ogun State of Nigeria. Therein, the Plaintiff was awarded a total sum of N367,500 as damages against the defendants while the 2nd defendant’s counter-claim was dismissed in its entirety.

On 8th March, 2007 when this appeal fell due for hearing, the appellants, who were duly served, failed to show up in court. As well, they were not represented by counsel. Since briefs of argument were filed by the parties, the appeal was deemed as argued vide Order 6 Rule 9(5) Court of Appeal Rules, 2002.

As manifest in paragraph 29 of the amended statement of claim, the plaintiff’s claims read as follows:

“(a) An order for the delivery up by the defendants to the plaintiff of the plaintiff’s Mitsubishi Gallant Car Registration No. OG 4062 YA with its original particulars; wrongly detained by the 1st defendant or its value of N300,000.00 (Three hundred thousand Naira).

(b) One hundred and seventeen thousand five hundred Naira (N117,500.00) being damages for the loss of use of the motor car at the rate of Five hundred naira (N500.00) per day from Tuesday the 26th of July, 1994 to Wednesday the 26th day of April, 1995 and thereafter at the rate of five hundred naira (N500.00) per day till possession of same is delivered to the plaintiff or till judgment.”

In its amended statement of defence and counter-claim, the 2nd defendant counter-claimed as follows:

“(a) The sum of N115,449.41 being principal and accumulated interest as at 31/12/96 and interest at the rate of 12% per annum until the debt is liquidated or alternatively;

(b) An order for the sale of the vehicle and for the return of the remaining amount, if any, to the plaintiff after deducting the amount being owed.”

Upon the completion of pleadings, the plaintiff testified and called two witnesses. On the part of the defendants, one witness adduced evidence. It is at this point apt to assemble the evidence adduced on both sides of the divide, albeit, briefly. The plaintiff at the material time was a customer of the 2nd defendant bank. The 1st defendant was the 2nd defendant’s manager. The plaintiff took an overdraft of N40,000 from the 2nd defendant in addition to the amount he had in his account to enable him purchase a motor vehicle. He bought a vehicle with Reg. No. OG 4062 YA which, within two weeks of purchase, had mechanical fault. He approached the 2nd defendant for additional overdraft to enable him carry out necessary repairs. The 1st defendant, instead of advancing further overdraft to the plaintiff, requested him to hand over the vehicle and the particulars to him so that he could take it to Lagos for repairs on behalf of the plaintiff. He handed over the vehicle and the particulars to the 1st defendant. The plaintiff later wanted to have the vehicle returned to him but his request was turned down. The defendants, on their own, used the vehicle as a taxi and changed the colour from Lagos hackney colour to brown. The plaintiff, through his solicitor, wrote a letter of demand for the return of his vehicle but it was not released to him. The letter of demand is Exhibit A.

The plaintiff later borrowed the sum of N6,200 from one Ologbonori and made a promissory note so as to convince the 2nd defendant to release the vehicle to him. But instead of releasing the vehicle to the plaintiff, the defendants paid the loan on behalf of the plaintiff to Ologbonori.

The plaintiffs vehicle and the particulars were handed over to the defendants between April and May 1994. The overdraft was due to mature for payment in August 1994. The defendants refused to release the vehicle when overdraft had not matured for payment. The defendants never demanded for payment from the plaintiff.

The vehicle was only released to the plaintiff on 3/6/97 by order of court. The plaintiff testified that he would have earned N500.00 daily from 26/7/94 to 26/4/95. He admitted owing the 2nd defendant the sum of N51,200 under cross-examination. P.W.2 and P.W.3 gave evidence of the efforts made to get the plaintiffs vehicle released to him after the colour had been changed to brown.

On behalf of the defendants, D.W.1 testified that the plaintiff owed the 2nd defendant the sum of N115,449.411 being overdraft plus accrued interest. The defendants never demanded for payment of the debt before they filed their counter-claim. Through D.W.1, the vehicle particulars procured by the 1st defendant were admitted as Exhibits J-J1. He attempted to tender the plaintiffs statement of account but same was rejected based on a sustained objection.