Dr Esin A. Esin V Matzen Y. Timm (Nigeria) Ltd (1966)
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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.  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:  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.
We also think that there is no valid ground for the defendant’s complaint in regard to the insurance money received for the total loss in an accident of one of the tippers after it had been on the road for about eight months. The instalments payable on that tipper amounted to £2,940; the insurers paid £2,140; the defendant had been credited with about £650 in instalments for that tipper. The trial judge thought it was agreed that the insurance money be used in wiping out the account of that tipper. The defendant’s learned counsel has not argued that the judge was not justified in so thinking: his argument is that the defendant was wronged by the company, who, in his submission, ought to have credited the defendant with £650 (or more) out of the insurance money.
That means that the company ought to have had only £1,490 (or less) out of the insurance money and foregone the balance of £i,450 from the total of £2,940; it also means that during the months before the accident the defendant should have been allowed to use the tipper free of rent, and as to the deterioration and depreciation which it suffered in his hands the company should bear the loss. That would have been unfair to the company. The parties made a sensible agreement: £2,140 of insurance money plus £650 paid as instalments amounted to £2,790, and the company gave up the difference between that and £2,940. There is no need to consider the terms of clause 6(d) and (i) of the contract on what should be done with insurance money and on the duty to indemnify the company when that money is not enough. The parties agreed to a certain course, and there is no reason why their agreement should be reopened.
There is a complaint that when the defendant paid £653-2s-0d at the end of 1961, which meant two instalments of rent, the company did wrong in allocating half the money as a credit of one instalment and the other half as a payment against repairs: the argument is that the whole amount ought to have been credited to instalments. The point is academic. Under clause 6(f) the hirer must pay punctually both rents and repairs; and clause 8 on the right to retake the vehicle begins-”Should the hirer not observe and perform the foregoing terms, provisions and stipulations or any one of them”; so the allocation made no difference of substance that we can see. Moreover the defendant presumably knew of that allocation when he agreed with the company on wiping out the account of the tipper that was written off later in March 1962. His complaint on allocation is without point.
Finally there is the complaint that the judge-
“erred in law and on the facts in failing to find that the parties were ad idem on the question of the two months moratorium or suspension of the plaintiffs’ strict legal rights.”
The background is this: in mid-August, 1962 Mr. Matzen and Mr Hoeppner went to see the defendant, who was much in arrear, and they had a conversation, on which the judgment states as follows:
“According to the evidence of the defendant, Matzen said or give you two months off in the instalments.’ Be that as it may, I do not believe that the parties were ad idem on the matter of moratorium and, in any case, I do not consider that the terms of Exhibits 1 and 2 could be varied orally.
I accept the evidence of the defendant that he believed that he had been given two months moratorium and that in that fra
Other Citation: (1966) LCN/1308(SC)