Dr Esin A. Esin V Matzen Y. Timm (Nigeria) Ltd (1966)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C.

The company sued Dr Esin for £4,472-11s-2d, made up of £3,664-13s-Od due under two hire purchase agreements (one dated 12 June, 1961, the other 8 February, 1962) and £807-18s-2d as balance due for repairs, spare parts, and services to the vehicles; judgment was given on 2nd March, 1964 (Adefarasin J. in the Lagos Suit 612/1962) for £4,072-11 s-2d (viz. the amount claimed less £400); the defendant appealed, and the company cross-appealed in regard to the £400. The appeal was argued on 10 and 11 October, 1966, by Chief Rotimi Williams for the defendant and Mr. Impey for the company.

We take up the cross-appeal first. The writ of summons states under the particulars of claim-

“and as to £807-18s-2d being the balance of a cost of repairs, spare parts and services rendered by the plaintiffs to the defendant carried out on the defendant’s motor vehicles at the request of the defendant.”

The writ was issued on the 27th November, 1962. The amended Statement of Claim (filed on 17th May, 1963) alleges as follows:-

20. “The plaintiffs carried out repairs and supplied spare parts in respect of the said tippers forming the Area Of Law of the said hire purchase agreements to the value of £807-18s-2d at the request of the defendant or pursuant to the terms of the said hire purchase agreement.”

The Statement ends with these words-”Wherefore the plaintiffs claim against the defendant in accordance with their writ of summons.” In the writ the cause of action is repairs etc. carried out at the defendant’s request, and one thinks that they had been carried out before the action was brought: in the narrative of facts alleged in the Statement of Claim the company adds another cause of action-”or pursuant to the terms of the said hire purchase agreements,” but does not profess to amend the particulars of claim in the writ. Chief Williams objected that the writ could not have been amended without specific leave; Mr. Impey said it could be done under English practice.

We have looked at the White Book for 1963 and surmise that Mr. Impey had Order 28, rule 2 in mind; we also surmise that Chief Williams had in mind rule 4 in Order 3 of the Supreme Court (Civil Procedure) Rules, 1945, which provides that the particulars of claim shall not be amended except by leave of the court. Moreover, Mr Brudmann’s evidence is that the repairs alleged to have been made by virtue of the agreements, and said to be worth £400 as estimated, were made in February and March, 1963, that is to say after the action was brought: (it was brought on 27 November, 1962). Reference is made in the notes below Order 28, rule 2 in White Book to Eshelby v. Federated European Bank Ltd. [1932] 1 K.B. 254, in which the Divisional Court decided that an amendment made by leave of the Official Referee was not justified inasmuch as it admitted a new cause of action which did not exist at the date of issue of the writ. The case went up on appeal but not on that point: [1932] 1 K.B. 423; at p.429 there is a remark by Scrutton L.J. that the amendment was contrary to the universal practice. In our view there was not a competent claim before the High Court for £400 for repairs made pursuant to the agreements, and the judge could not have adjudicated on it. We must decline to consider the cross-appeal; that portion of the claim must be struck out as incompetent, and it will rest with the company to seek advice on whether it should be sued on again.

We should like to add that the material in paragraph 20 ought to have been framed as two paragraphs-one on repairs made at the request of the defendant, and another on repairs made by virtue of the hire purchase agreements, with a statement that these latter repairs were made in February and March, 1963. In pleading there ought to be a separate paragraph on every distinct matter, and every paragraph must give sufficient information.

Passing now to the defendant’s appeal, we begin with his complaint on the £407-18s-2d for repairs and spare parts before the seizure of the tippers on 7 September 1962. Particulars of these had been given to the defendant; and the judgment states that-

“The defendant did not appear to have made much fuss about the repairs except that details of spare parts replaced were not shown to him. I think the plaintiffs are entitled to their claim of £407-18s-2deven though I think that the plaintiffs rather tended to make high charges for their services, for example the grinding of crankshaft. The defendant was at liberty to go elsewhere, as indeed he had to do in the end when he took his tippers to other motor mechanics. I would allow the plaintiffs’ claim for £407-18s-2d for repairs done and spare parts supplied.”

The defendant’s ground of appeal complains that-

“The learned trial judge, having been satisfied that the plaintiffs’ charges for repairs and spare parts were not reasonable, ought to have dismissed or non-suited the plaintiffs’ claim or awarded what (in his opinion) was reasonable.”

The judge does not say the charges were unreasonable: what he says is that the company rather tended to make high charges. He is not the only person who thinks that companies tend to do so for repairs. But there was no evidence of what other companies charge, to afford comparison. The judge went through the job cards and considered the evidence for either side, and concluded that the company had made out the claim; and we see no reason to differ from his view.