Adedeji & Sons Motors Nigeria Limited V. Chief Robert Ogboze Immeh & Anor (1996)

LawGlobal-Hub Lead Judgment Report

AKINTAN, J.C.A.

This is an appeal from the judgment of Fawehinmi, J., delivered at Ikare High Court in Ondo State on 13/5/93. The appellant was the plaintiff at the trial while the respondents were the defendants. The plaintiff’s claim at the trial as endorsed on the writ of summons is as follows:-

1. The plaintiff’s claim against the defendants jointly and severally is for the sum of N39,750.00 (Thirty-nine thousand, seven hundred and fifty naira) being money due to have been paid by the defendants to the plaintiff at Ikare -Akoko since 1983 as balance of purchase price of various motor vehicles sold to the defendants by the plaintiff. The second defendant being the Guarantor to the first defendant in an Agreement dated 20th July, 1982 executed by the plaintiff and the defendants for the payment of the debt.”

Pleadings were filed and exchanged. The plaintiff pleaded, inter alia, in paragraphs 5, 6 and 7 of its amended statement of claim as follows:-

“5. The first defendant at various times between 1981 and 1982 bought the various motor vehicles registered as follows:- BD 3263 BD, BD 3376 BD, BD 3529 BD, BD 7925 J, BD 7977 J, BD 4994 BD, BD 1165 WA, BD 1252 WA, BD 5627 BD, BD 8420 J, BD 6746 BD, BD 7953 C, BD 5842 BB, BD 9322 J, BD 8900 J, BD 9557 J and BD 1266 BD from the plaintiff on hire purchase basis at Ikare Akoko, Ondo State.

6. The plaintiff hereby pleads the hire purchase agreement with the Hire Purchase Agreement Control Sheets, and shall rely on them at the hearing of this suit.
7. As time went on the first defendant defaulted in paying his Hire Purchase instalments as agreed and in consequence his indebtedness on the said various vehicles to the plaintiff rose to the tune of N45,040.00 which he failed to pay despite demands.”

The respondents as defendants filed a joint amended statement of defence in which they denied liabilities for the claim and the 1st defendant counter-claimed for a total sum of N30,890.00. The break down of the counter claim was set out in paragraph 24 of their amended statement of defence and counter claim.

The case suffered chequered history during the trial in that it was struck out twice for want of prosecution but was later restored to the cause list. The trial eventually started and the plaintiff called 2 witnesses and thereafter failed to show up to continue the case for the plaintiff. When the court found that the plaintiff did not show up after 2 adjournments to continue its case, learned counsel for the defendants moved the court for an order dismissing the claim for want of prosecution. He also applied to withdraw the defendants’ counter-claim. The learned trial Judge upheld the request and entered judgment in the case as follows:-

“Clearly the plaintiffs are no longer interested in pursuing their case to finality. In the prevailing circumstance, plaintiffs’ action is dismissed on merit. Defendants’ counter-claim is hereby struck out. I award N1,250 costs in favour of the defendants jointly and severally as against the plaintiffs. As regards the issue of the counter-claim, no order with respect to issue of costs is made.”

The plaintiff was dissatisfied with the judgment of the court and has appealed against it to this court. One ground of the appeal was filed against the judgment.

The ground of appeal with its particulars reads thus:-

“(i) The learned trial Judge erred in law to have dismissed the appellant’s case without considering the evidence so far adduced.

Particulars of Error

(a) The reason adduced by the learned trial Judge was not sufficient reason to dismiss the plaintiff’s claim who had given evidence.

(b) The evidence so far adduced was sufficient to earn the plaintiff judgment against the defendants who have not adduced any evidence.”

The parties filed their briefs in this court. The following issue was formulated for determination in the appellant’s brief:-