Elijah Oladeji Kosile V Amuba Olaniyi Folarin (1989)

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NNAEMEKA-AGU, J.S.C.

On the 23rd of January, 1989, this Court heard this appeal and dismissed it, but reserved reasons for the judgment till to-day. I now give my reasons.

By a writ of summons dated the 25th day of February, 1974, the plaintiff claimed against the defendant as follows:

“1. The plaintiff’s claim is for the return of the plaintiff’s Commercial vehicle registration No. WC4102. or its value of N2,400.00, which was wrongfully seized and detained by the defendant from the plaintiff’s driver on or about the 21st day of May, 1972, at Ile-Ife. The defendant has refused to return the said vehicle to the plaintiff inspite of plaintiff’s repeated demands.

The plaintiff also claims from the defendant the sum of N20.00 per day for loss of income as a result of the wrongful seizure from the aforesaid date of seizure until possession is delivered.

The plaintiff further claims the sum of N1,000.00 as general damages for wrongful seizure and detention of the said vehicle.”

Pleadings were filed and exchanged, after which the matter was set down for hearing.

The facts are brief. Between March and August, 1971 the plaintiff, a transporter, hire-purchased from the defendant three motor vehicles under the agreements, Exhs. E, F and G. When the plaintiff ran into difficulties without honouring his hire purchase obligations, the parties entered into an agreement, Exh. B dated January 4, 1972, in place of the original hire purchase agreement. Under Exh. B the price of the vehicles was to be paid by agreed monthly instalments of N400.00 per month, but upon default, the whole amount would become due and recoverable by legal action. One of the vehicles was involved in an accident and the engine of another vehicle knocked, leaving the plaintiff with only motor vehicle No.WC4102, the subject of this suit. As the plaintiff could not pay as agreed under Exh. B, the defendant, on the 21st of May, 1972, seized the vehicle No.WC4102. At the trial, the main issue as to the liability of the defendant was whether Exh. B was an agreement for sale under the Sale of Goods Law. The learned trial Judge, Agbaje Williams, J. (as he then was) held:

“I hold that Exh. B was not a sale under the Sale of Goods Law, Cap. 113. It was a mere relaxation of the strict terms of the hire purchase agreements (Exhibits “E” , “F” and “G”), which relaxation is not intended under clause 12 of each of the Exhibits to prejudice or affect the strict rights of the parties: Animashaun v. C.F.A. (1960) L.L.R. 151. I agree with the learned counsel for the Defendant that there was no consideration to ground it in any case in law: U.T. C. v. Walter Hauri (1940) 6 W.A.C.A. 148. There is no quasi-estoppel or promissory estoppel here, for that may only be used as a shield, not as a sword – see per Lord Cairns in Hughes v. Metropolitan Rly. Co. (1874-80) All E.R. Rep. 187………”

Then, as I said, he dismissed the plaintiff’s claim with costs. On appeal to the Court of Appeal, Ibadan Division, coram: Uche Omo, Dosunmu, and Omololu-Thomas, JJ.C.A., the appeal was allowed: Their Lordships, per Thomas, J.C.A. held:

“In this case the learned trial Judge ought to have considered the full effect of the unequivocal terms of Exhibit B along with the stipulations of Exhibits E,F,G. There is provided in the agreement Exhibit B a term not only that any default in the instalmental repayment makes the whole amount payable, but also that the amount becomes recoverable by legal action.”

Later he continued’

“The existence of Exhibit B in the form it appears, seems to me to suggest that the parties intended to extinguish or oust the original contract of Hire Purchase in its entirety, and substitute a new agreement of sale. Grounds 1 and 5 therefore succeed. (Refer to Morris v. Baron (1918) A.C. 1 at p. 18 & 19).”

In a nutshell, they held that the contract of sale, Exh. B, extinguished the earlier hire purchase agreements and so the defendant was wrong to have seized the vehicle. They therefore, allowed the appeal, with costs. On the question of damages, they held: