A.O. Sodimu v. Nigerian Ports Authority (1975)

LawGlobal-Hub Lead Judgment Report

T. O. ELIAS, C.J.N. 

In Suit No. LD/1085/72 Kazeem, J., gave judgment in the High Court of Lagos State on February 1, 1974 against the plaintiff, herein appellant. In the amended Writ of Summons, the plaintiff’s claims against the defendant, herein respondent, are for:

“(a) A declaration that he is the owner of  No.6 Stothert & Pitt Cranes nos. 511B, 513B, 514B, 551C and 552C and that the continued detention thereof is wrongful.

(b) Loss of use of the said cranes at the rate of N2.50 for the first hour and N2.00 for each subsequent hour of each day in respect of each of the six cranes from the 15th December, 1971 till the date of writ;

(c) Loss of use of the said cranes at the rate of N2.50 for the first hour and N2.00 for each subsequent hour of each day in respect of each of the six cranes from the date of writ until the said cranes are delivered to the plaintiff; and

(d) An order for the delivery up of the said cranes to the plaintiff. ”

It is common ground that the defendant, by Notice No. 2352 dated July 24, 1971 and published in the Daily Times of Monday, July 24, 1971, Exhibit A, invited tenders for the sale of various condemned fixed assets of the defendant then lying at the Apapa Quays, Lagos. The plaintiff thereupon tendered for the following articles.:

(i) Six (6) Stothert and Pitt Cranes Nos. 511B, 512B, 513B, 514B, 551C and 552C,

(ii) Two (2) Freight Lifters Nos. 202 and 203, and

(iii) Six (6) Conveyancer forklifts.

By letter dated October 25, 1971, the defendant accepted the plaintiff’s offer, at the same time requesting him to pay a total sum of 820 (N1,640.00) for all the articles within 21 days (Exhibit B) and also making the following two stipulations inter alia:

“1. The Articles will be removed by you at your expense within 7 days of payment.
2. The Authority reserves the right to resell the articles should you fail to remove them within the time stipulated.”

The plaintiff paid the defendant the full amount of 820 (N 1,640.00) within the period, that is, on November 11,1971, and obtained therefore a receipt (Exhibit C). On December 15, 1971, the defendant’s storekeeper issued an order (Exhibt D) to the storekeeper that the articles be removed from the Apapa Quays. The learned trial judge made the following observation:
“On this point, the evidence seems to be at variance with the pleadings. Paragraph 8 of the Amended Statement of Claim dated 31st July, 1973 was silent on the date but merely averred thus:
The plaintiff submitted the receipt of the sum of 820 to the Stores Manager of the defendant for the release of the goods.
Whereas, in the Amended Writ dated 12th January, 1974, it was stated thus:

‘On or about the 15th day of December, 1971, the plaintiff went into the Apapa Quays to remove all the items.’
In his evidence at the trial, the plaintiff testified that he had called on the defendant’s officials several times before the 15th December, 1971 for the release of the articles, but they failed to release them to him. However, when the plaintiff’s 3rd witness, Mr Amosu was recalled for cross-examination by the defendant’s counsel, he said that it was on 15th December, 1971 that the plaintiff first made a request for the release of the articles by the defendant; and that he would have known if the plaintiff did so earlier, because he had not then proceeded on leave.