Alhaji Habu Akibiya V. Alhaji Sambo (1978) LLJR-SC

Alhaji Habu Akibiya V. Alhaji Sambo (1978)

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The respondent in this appeal was the plaintiff in an action in the High Court of the former North-Central State (now Kaduna State) in which he claimed from the respondent, who was the defendant in the action, as follows-

“(1) A declaration that the plaintiff as against the defendant is the real owner of vehicle No. KNB. 5206.

(2) Specific delivery of the said vehicle.

(3) The sum of 300 pounds (N600.00) per month from the time the vehicle was seized until judgment is given.

ALTERNATIVELY the plaintiff claims the sum of N6,000 as special and general damages for conversion” (See paragraph 19 of Statement of Claim).

In his judgment, the learned trial Judge granted to the plaintiff the declaration sought as against the defendant, ordered that the defendant should forthwith deliver the vehicle in question to the plaintiff, and awarded damages to the plaintiff amounting to N4,804.00 under item (3) of the claim. He found that the claim in the alternative could not stand and, consequently, he made no award under it.

The defendant, being dissatisfied with the decision of the High Court, appealed to this court seeking to set aside the judgment of the High Court and to have judgment entered in his favour, on the following grounds –

“(1) That the decision is unreasonable and cannot be supported having regard to the weight of evidence.

(2) The learned trial Judge erred in law in awarding special damages over and above the value of the subject matter in dispute in addition to the order to return the vehicle to the respondent where the alternative claim for damages for conversion of the said vehicle was N6,000.”

After hearing argument by learned counsel for the appellant and learned counsel for the respondent, we finally came to the inevitable conclusion that this appeal should be allowed and it was accordingly allowed. The judgment of the High Court was set aside and the plaintiff/respondent’s claim was dismissed in its entirety. The plaintiff/respondent was also ordered to pay to the defendant/appellant the costs of the appeal assessed and fixed at N300.00. We also stated that we would give our reasons later, and we now proceed to do so.

The basis of the respondent’s claim is a Leasing Agreement in respect of a motor vehicle, between a company named J. Allen and Company Limited, as lessor, and Alhaji Habu Akibiya, the appellant, and lessee. The Leasing Agreement was produced by the appellant and admitted in evidence at the trial as Exhibit 3, while its counterpart was produced by the manager of the lessor company and admitted in evidence as Exhibit 8. The term of the lease was twelve months from 1st January 1972 at a monthly rent of 184 pounds, renewable for a further term of twelve months at a monthly rent of 15 pounds, subject to certain conditions and stipulations under clause 3 of the Leasing Agreement, which contains numerous covenants, most of which were heavily weighted against the lessee.

However, it is clear from the nature of the transaction of lease, as evidence by Exhibits 3 and 8, that the lessor’s right of property in the vehicle was carefully safeguarded. In particular, clause 7 provides in part as follows –

“…if the lessee shall fail to observe or fulfil any term of this Agreement or shall do or suffer anything whatsoever which in the lessor’s opinion bona fide formed upon reasonable grounds will or may have the effect of jeopardising the lessor’s right of property in the vehicle then and in every such case the lessor may forthwith and without notice terminate the lease created hereby….”

It was conceded by learned counsel for the appellant that, on the basis of the Leasing Agreement, the transaction in question was a lease and that, during the currency of the lease, the ownership of the vehicle remained in the lessor. However, we do not agree with him that Exhibit 9, which is a mere statement of account containing an entry referring to “Change of ownership” taken together with the payment of various sums of money as instalments, as found by the learned trial Judge, but which were really rent due and owing under Exhibit 3, could have effected any legal change of ownership of the vehicle. Further, in the face of Exhibit 3 and, also the registration of the vehicle in the name of the appellant in the Vehicle Registration Book, Exhibit 1, It is clear that the legal ownership of the vehicle could not have passed to or been vested in the respondent at any time.

However, it is observed that while the Leasing Agreement was made on the 1st day of January, 1972, the writ of summons in the action was filed on the 8th day of February, 1973, just over one month after the Leasing Agreement expired. There is, of course, no evidence or finding by the trial Court that it was ever renewed in accordance with the covenant by the lessor contained in clause 3 which provides as follows –

“3. The lessor hereby covenants with the lessee that on the written request of the lessee made not less than one calendar month before the expiration of the term hereby created and if there shall not at the time of such request be any existing breach or non-observance of any of the covenants on the part of the lessee herein contained, to grant to the lessee a lease of the vehicle for a further term of twelve months from the expiration of the term hereby created at a monthly rent of 15 pounds payable in advance on the first day of each calendar month the first such payment to be made on the day of commencement of such further term, but otherwise subject to the same terms covenants and conditions as are herein contained including this present option for renewal.

The ownership of the vehicle could not therefore have passed from the lessor to the lessee (the appellant) or, indeed, to the respondent, who was not a party to the Leasing Agreement, whether or not any implied trust existed, as pleaded by the respondent in paragraph 16 of his Statement of Claim, between the respondent and the appellant, and whether or not any implied agency or other fiduciary relationship existed between them.

It is therefore clear that the vital point in the case is whether or not a declaration of ownership of the vehicle in question could be granted in favour of the respondent because, if the answer is in the negative, then, the entire claim including the items relating to specific delivery and damages obviously cannot be sustained. Now, throughout the trial, the basis of the respondent’s claim of ownership of the vehicle was Exhibit 3 (of which Exhibit 8 is a counterpart). Exhibit 3 was, throughout the trial, referred to by witnesses, and regarded by learned counsel for the plaintiff and learned counsel for the defendant, as a hire-purchase agreement. The learned trial Judge, in his judgment, also regarded Exhibit 3 as some form of hire-purchase agreement entitling the respondent to ownership of the vehicle on completion of payment of monthly instalments by the appellant on behalf of the respondent.

Exhibit 3 is not, however, a hire-purchase agreement in which there is a “bailment of goods in pursuance of an agreement under which the bailee may buy the goods or under which the property in the goods will or may pass to the bailee …” See Section 20 (1) of the Hire-Purchase Act, 1965 No. III (definition of “hire-purchase”). Further, it is provided in clause 14 of Exhibit 3 that –

“For the avoidance of doubt it is hereby expressly declared that this Agreement is not and is in no way intended to be one falling within the ambit of the Hire-Purchase Act 1965.”

Exhibit 3 is, indeed, a “Leasing Agreement”, under which, as the evidence stands, the ownership of the vehicle remained in the “lessor” throughout the period of the agreement and until and after the issue of the writ of summons.

In these circumstances, since the ownership of the vehicle remained in the lessor, and never at any time passed to the respondent, either directly or through any agency or trust existing between the respondent and the appellant, the basis of his claim is illusory and it therefore cannot stand.

For these reasons, the appeal was allowed as earlier stated.

Other Citation: (1978) LCN/1964(SC)

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