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Ikare Community Bank (Nigeria) Ltd. V. Bola Ademuwagun (2004)

LawGlobal-Hub Lead Judgment Report

NGWUTA, J.C.A.

This is an appeal against the judgment of the Ondo State High Court, Ikare Judicial Division, in suit No. HIK/20/96. The judgment was delivered on 23rd September, 1999.

The respondent who was the plaintiff in the court below was the manager of the appellant bank. The bank was the defendant in the lower court. The respondent’s appointment as the manager of the bank was terminated by the appellant, sometime in October, 1995. Before the termination of his appointment, the respondent on 18/3/95, in his capacity as the Manager of the appellant bank, attended a meeting of the Board of Directors of the bank. At the said meeting, the alleged indebtedness of the respondent to the appellant was raised. This led to the seizure of the respondent’s Peugeot saloon car registered as No. OD 515 KA by members of the appellant’s Board of Directors, who handed the car over to the police at Ikare Akoko, Ondo State for safe-keeping pending the respondent’s refund of the money he owed the appellant. Following the refusal of the appellant to return the respondent’s car, the respondent issued a writ of summons on which were endorsed the following claims against the appellant bank:

“The plaintiffs claim against the defendant is for the delivery up of the plaintiff’s Peugeot 504 saloon car with registration No. OD 515 KA or N150,000.00 the value thereof with the items inside the said car as here under listed viz: –

1. A panasonic M3000 video recording camera valued – N150,000.00
2. A tape recorder (radio cassette type valued N6,000.00
3. Five audio cassettes valued – N500.00
4. One copy of living bible valued – N800.00
5. A video sender valued – N1,000.00
6. one complete spare tyre valued – N3,000.00
7. A wheel spanner valued – N350.00
8. A jack valued – N900.00
9. Two men suits valued – N30,000.00
10. Two complete agbada and buba with caps valued N88,000.00
11. Two pairs of shoes valued – N10,000.00

or N291,000.00 the value thereof which the defendant illegally seized from the plaintiff at Ikare-Akoko on 18th March, 1995 and wrongly detained and still detains from the plaintiff.

By reason whereof the plaintiff has suffered special and general damages. And the plaintiff claims:

1. Delivery up of the said saloon car or its value N150,000.00 with all the items inside it as listed supra or their valued N291,050.00.
2. Damages for unlawful seizure and detention of the said car with the items inside it – N20,000.00

Special Damages

1. Payment of the value of the said car as an alternative for the delivery up of the car – N150,000.00.
2. payment of the value of the said items inside the said car as an alternative to their delivery up – N291,000. 00.
3. N500.00 per day for loss of use of the said car from 18/3/95 when the car was seized until judgment is delivered in this case. ”

Pleadings were duly filed and exchanged. The claim endorsed on writ was reproduced in paragraph 23 of the statement of claim. In its amended statement of defence the appellant denied the respondent’s claim. It was the appellant’s case that the respondent, after removing his bag and other items from the car, surrendered the car to the appellant, promising to retrieve it back after paying what he owed the appellant. The respondent filed what he tagged: “reply to statement of defence” which merely repeated issues already joined by the parties.

Trial opened on 2/2/99. The respondent testified and called two other witnesses and closed his case. The appellant called four witnesses and rested its case. Learned Counsel for the parties addressed the court and in a reserved judgment delivered on 23/9/99, the court (Ogundare, J. presiding) entered judgment for the respondent. The court, at page 94 of the records said:

“Since, I have allowed a claim of N73,000.00 as damages for its detention, the claim of N200,000.00 as damages for unlawful seizure is hereby rejected. On the whole, I make the following awards in favour of the plaintiff against the defendant Bank.

1. The delivery of OD 515 KA to the plaintiff in a workable condition after necessary repairs or its value being N150,000.00.
2. A sum of N29I,050.00 being the value of the items contained in the car.
3. N73,000.00 for loss of use for the detention of the car from 18/3/95 up to March, 1999 at N50.00 per day.

This shall be the judgl11ent of this court. A cost of N3,000.00 is awarded in favour of the plaintiff. ”

The appellant was aggrieved and appealed the judgment to this court on five grounds. The five grounds of appeal shorn of their particulars, are reproduced hereunder:

“1. The learned trial Judge erred in law, when he ordered the appellant to pay the sum of N150,000.00 to the respondent or return his car “after it had been repaired” when there was no such claim before the court.

2. The learned trial Judge erred in law, when he held that the respondent proved his ownership to the various articles listed as Nos. 1-11 in paragraph 24 of the statement of claim by merely averring that he owned them.
3. The learned trial Judge erred in law, when he held in effect that the defence witnesses supported the case of the respondent that the car was illegally detained.
4. The learned trial Judge erred in law, in not evaluating or adequately evaluating the totality of evidence before it and thereby came to a wrong conclusion.
5. The judgment was against the weight of evidence.”

Consistent with the rules of the court, the parties, by their counsel filed and exchanged briefs of argument.

In his brief learned Counsel for the appellant Akanle, SAN, formulated the following three issues from his five grounds of appeal:

“A. Whether or not, the order of the lower court for delivery of the car in workable condition or payment of its value of N150,000.00 was right in the circumstances.

B. Whether or not, respondent successfully proved that he indeed had in the car goods he itemised and whether he succeeded in proving the value of the goods.

C. Whether or not, respondent successfully proved loss of the use of the car and whether he proved the damages he suffered to warrant the award made by the lower court.”

In his own brief of argument, learned Counsel for the respondent, Olanipekun, Esq., presented the following five issues for resolution by the court:

“1. Whether or not, the lower court was right to have ordered the delivery of the car in a workable condition after necessary repairs or its value of N150,000.00.

2. Whether or not the respondent succeeded in proving that he had in the car the goods he itemised and whether or not, he successfully proved the value of the said goods and whether or not the appellant seized the car from the respondent as opposed to the claim of the appellant that the respondent pledged or surrendered his car for payment of debt.
3. Whether or not, the respondent successfully proved loss of the use of the car and whether or not he proved the damages he suffered to warrant the award made by the lower court.
4. Whether or not, the lower court was right to have made the consequential order as follows:

“In a workable condition after necessary repairs” (italics nine) when it ordered the delivery of car No. OD 515 KA to the respondent.

5. Whether or not, the Court of Appeal has jurisdiction to entertain and determine this appeal when the defendant/appellant has not hitherto filed notice and grounds of appeal after its motion on notice dated 23/9/99 and filed on 27/9/99 praying for:

(a) An order staying the execution of the judgment of the lower court delivered on 23/9/99, pending the determination of the appeal lodged against the judgment; and

(b) An order granting leave to the defendant/appellant to file grounds of law and fact, and fact contained in the notice of appeal attached to the motion and marked exhibit ‘A’ was granted by the lower court.”

In reaction, learned Counsel for the appellant, Akande, SAN, filed appellant’s reply brief in which he attacked issues 2 & 5 in the respondent’s brief of argument. Learned Senior Counsel contended that the respondent’s issues 2 & 5 do not arise from the grounds of appeal nor did respondent file any cross-appeal to raise the said two issues. He stated that while the grounds of appeal are four, the issues raised by the respondent are five, adding that while issues can be less in number than grounds of appeal, issues cannot be more in number than the grounds of appeal.

He relied on the following cases:-

(i) Ogunjumo v. Ademolu (1995) 4 NWLR (Pt. 389) 254 at 265 para. H.

(ii) Omo v. JSC (2000) 12 NWLR (Pt. 682) 444 at 455 para.

(iii) Ogunbiyi v. Ishola (1996) 6 NWLR (Pt. 452) 12 at 20 paras. H-C.

In further reaction to issue 5 in the respondent’s brief, learned Counsel said the appellant filed his appeal on 27/9/99.

I will take a look at the grounds of appeal filed by the appellant, and the issues formulated by the parties. In ground 2 of the grounds of appeal, the appellant’s complaint is that “the learned trial Judge erred in law when he held that the respondent proved his ownership to the various articles listed as Nos. 1-11 in paragraphs 24 of the statement of claim by merely averring that he owned them”. In my humble view, what the appellant is saying here is that, the learned trial Judge erred in law, when he held that the respondent, for no reason other than his averment as opposed to evidence, proved that he owned the articles. However, the portions of the judgment dealing with the listed items on page 93 of the records does not support this ground of appeal. It may be the learned Counsel’s view or opinion that there was no evidence, but only the averment, that the respondent owned the items but learned Counsel’s opinion or view cannot give rise to a valid ground of appeal. The grounds of appeal must be framed from the judgment appealed against. It is unfair to the learned trial Judge to say that the respondent proved his ownership of the articles by merely averring that he owns them, much so when the respondent, in his evidence in chief, gave evidence that he had items in the car and listed the 11 items and their values. See page 60 of the records.

In answer to a question in cross-examination, the respondent stated. “I did not mention the items then because I did not (sic) that my car would not be released to me that day.”

In my view, the respondent was not really taken up on his evidence, not averment, relating to his ownership and value of the items. The trial court was right in its reference to the evidence of ownerships and value of the items as unchallenged. See page 93 of the records. I hold that ground 2 of the appellant’s ground, not resting on anything in the judgment, but based on the erroneous impression that the court accepted the averments, as opposed to the evidence, of the respondent as proof that the respondent owned the articles is incompetent and so is issue 2 formulated therefrom. See Akibu v. Oduntan (2000) 13 NWLR (Pt. 685) 446. Both ground 2 and issue 2 in the appellant’s brief are hereby struck out for being incompetent. In any case, even if ground 2 is competent, issue 2 distilled from it raised within it another issue, a practice that should not be permitted.

The issue questions not only the proof of title, but also the proof of the value of the items. An issue for determination should not comprise of other issues. See Isaac Iloabuchi v. Cosmas Ebigbo (2000) 8 NWLR (Pt. 668) 197. Issue 3(or C) in the appellant’s brief is also a composition of two different issues. It raised the question of proof of the loss of the use of the car and proof of damages suffered by the respondent to warrant the award of damages by the lower court. The said issue is also struck out for being incompetent.

I now turn to the respondent’s brief. Issue 2 is herein reproduced once more.

“Whether or not, the respondent succeeded in proving that he had in the car the goods he itemised and whether or not, he successfully proved the value of the said goods and whether or not the appellant seized the car from the respondent as opposed to the claim of the appellant that the respondent pledged or surrendered his car for payment of debt.”

Three separate issues are compressed in issue 2:-

(1) Proof that the respondent had the listed article in the car.

(2) Proof of the value of the goods.

(3) Whether the respondent’s car was seized by the appellant as claimed by the respondent or the respondent pledged the car for his debts to the appellant as claimed by the appellant.

The question regarding whether the car was seized or pledged does not flow from any of the grounds of appeal. The respondent who filed neither a cross-appeal, nor a respondent’s notice cannot present an issue outside those formulated by the appellant and not based on any ground of appeal. See Nigeria Ports PIc v. Oseni (2000) 8 NWLR (Pt. 669) 410. Issue 3 is not only a combination of three separate issues but its “issue” is neither an adoption of any issue in the appellant’s brief nor does it relate to any ground of appeal. The said issue 3 is incompetent and is accordingly struck out.

Issue 5 questions the jurisdiction of the court to hear and determine the appeal on the ground that the appellant had not hitherto filed a notice and ground of appeal after it was granted an order for a stay of execution and leave to appeal on grounds of law and fact, and fact contained in the notice of appeal exhibited to the motion on notice and no deeming order was granted as none was asked for.

In his reply brief, learned Counsel for the appellant contended that issues 2 & 5 in the respondent’s brief do not arise from the grounds of appeal, and that the issues cannot be raised by the respondent who did not file a cross-appeal.

Learned Counsel impugned the 5th issues in the respondent’s brief on the ground that the 5th issue makes the issues in the respondent’s brief one issue more than the appellant’s four grounds of appeal. On this point, I respectfully disagree with the learned Senior Counsel for the appellant. He did file five grounds of appeal, the 5th of which is the omnibus ground that judgment is against the weight of evidence. It would appeal, however, that this ground was abandoned as no issue was framed from it. See Newswatch Communications Ltd. v. Atta (2000) 2 NWLR (Pt. 646) 592. I have already dealt with the 2nd issue in the respondent’s brief, particularly the 3rd of the three issues compressed into one issue for determination.

On the issue of jurisdiction, I agree with the learned Counsel for the appellant, that the issue does not stem from any ground of appeal. Learned Counsel for the respondent, at the oral hearing, gave the impression that issue 5 was a preliminary objection. If this be the case, learned Counsel with respect, ignored the rules and relied on his own rules which are not recognised by this court. The 5th issue is neither a competent ground of appeal, nor a notice of preliminary objection, its substance, if any notwithstanding. In Hussaini v. Ogbuokiri (2004) 7 NWLR (Pt. 873) 524 at 531. It was held that “an issue for determination in an appeal should be based on or arise from the grounds of appeal, arising from the judgment of the trial court being appealed against. Therefore, a notice of preliminary objection by a respondent to the competence of the grounds of appeal filed by an appellant no matter how substantial the grounds of such objection could be, not being ground of appeal, can never support an issue for determination in an appeal”. Issue 5 in the respondent’s brief of argument, being neither a competent issue nor a ground of objection is hereby struck out.

In the end of the exercise of scrutinising the grounds of appeal, as well as the issues formulated by the parties, the appellant is left with his issue 1, while the respondent is left with issues 1 and 4. The said issues are hereby reproduced once again. Issue 1 in the appellant’s brief:

“Whether or not, the order of the lower court for delivery of the car in workable condition or payment of its value of N150,000.00 was right in the circumstances.”

Issues 1 and 4 in the respondent’s brief:

Issues 1

“Whether or not, the lower court was right to have ordered the delivery of the car in a workable condition, after necessary repairs or its value of N150,000.00.”

Issue 4

“Whether or not, the lower court was right to have made the consequential order as follows:

‘In a workable condition after necessary repairs (italics mine) when it ordered the delivery of car No. OD 515 KA to the respondent.’

In effect, the question that can dispose of this appeal is was the lower court right to have ordered the delivery of the car by the appellant to the respondent in a workable condition after necessary repairs by the appellant.”

In dealing with the issue in his brief of argument, learned Counsel for the appellant argued that the claim before the court is for the delivery of the car or its value. That the car should be in a workable condition after necessary repairs or its value of N150,000.00 are not part of the claim before the court. The court cannot award what was not claimed. According to counsel, the car was not used and so could not have been damaged. He referred to the evidence of PW2 that the tyres could have been damaged as an opinion especially as the PW2 did not inspect the vehicle. Counsel relied on the following:-

(1) Akinbobola v. Fisko (1999) 1 NWLR (Pt. 167) 270 at 283 paras. F-S.

(2) Olurotimi v. Ige (1993) 8 NWLR (Pt. 311) 257 at 257 paras B-C.

(3) Ojah v. Ogboni (1996) 6 NWLR (Pt. 454) 272 at 290 paras B-C.

(4) Jeric (Nig.) Ltd. v. U.B.N. Plc (2000) 15 NWLR (Pt. 691) 447 at 391 paras E-F.

It was submitted that the value of the car put at N150,000.00 was not proved. Counsel referred to the evidence of the respondent to the effect that “the car could be valued N150,000.00 by then” and argued that the respondent is not sure of the exact value of the car. The purchase receipt was not tendered nor was there evidence of the year of manufacture.

According to counsel, the claim for N150,000.00 “is a special claim” which must be strictly proved. The market value of the car is what the court could award, but this was not proved. He relied on the following cases:-

(1) Eziani v. Njidille (1964) 11 All NLR 402 at 405.

(2) Delta Steel (Nig.) Ltd. v. A.C.I. (1999) 4 NWLR (Pt.597) 53 at 67 paras A-C.

(3) Calabar E.C. v. Ikot (1999) 14 NWLR (Pt. 638) 225 at 240 paras C-G.

He urged the court to resolve the issue in favour of the appellant.

On his part, learned Counsel for the respondent in his brief of argument, said the order relating “workable condition after necessary repairs constituted a consequential order. It is meant to give effect to the judgment from which it flowed. Counsel argued that the evidence that the car was seen parked at the police station since 18/3/95, was not controverted.

Also, uncontroverted is the evidence that the vehicle had been damaged and it is common sense, according to counsel, that the car would need some repairs to make it workable after it had been parked since 18/3/95. He argued that the PW2 who gave evidence on the condition of the car, having been a mechanic since 1986 is an expert and the PW2’s use of the word “observe” means also “Inspect”. He contended that since the PW2 was not cross-examined on the damage to the car, the court was right to act on the said evidence. Learned Counsel listed the following as relevant authorities:-

“1. F.AT.B. Ltd. & Anor v. Ezegbu & Anor. (1993) 6 NWLR (Pt. 297) 1, (1993) 6 SCNJ (Pt. 1) 122 at 136.

2. Boshali v. Allied Commercial Exporters Ltd. (1961) 4 All NLR 917 at 918 ratio 2.
3. Agu & Anor v. Odofin & Anor (1992) 4 NWLR (Pt. 229) 350, (1992) 3 SCNJ 161 at 164 ratio 3.
4. A-G. of the Federation v. A.I.C. Ltd. (2000) 10 NWLR G (Pt. 675) 293, (2000) 6 SCNJ 171 at 173 ratio 4.
5. Section 57 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria (1990) 61 page 442 and page 578 of Oxford Advanced Learner’s Dictionary of current English by A.S. Hornly (for the meaning of the words “inspect” “observe”.)
6. Elf Nigeria Ltd. v. Silo & Anor. (1993) 2-8 SCNJ (Pt.1) 119 at 112 ratio 7.
7. Azu v. State (1993) 6 NWLR (Pt. 299) 303, (1993) 7 SCNJ (Pt.1) 15 at 152 ratio 7.
8. Akapo & Anor v. Hakeem Habeeb (1992) 6 NWLR (Pt.247) 266, (1992) 7 SCNJ 119 at 125 ratio 21.
9. Calabar East Co-operative & 3 Ors. v. Ikot (1999) 14 NWLR (Pt. 638) 225, (1999) 12 SCNJ 321 at 325 ratios 9 & 10.
10. Amadi v. Nwosu (1992) 5 NWLR (Pt. 241) 273, (1992) 6 SCNJ (Pt. 1) 59 at 60 per Nnaemeka-Agu, JSC (as he then was).
11. Onwuka v. Omogui (1992) 3 NWLR (Pt. 230) 393, (1992) 3 SCNJ 98 at 101 Per Nnaemeka – Agu, JSC (as he then was)”.

Counsel contended that the authorities cited by learned Counsel for the appellant are not helpful to the appellant’s case. He said the respondent proved the value of the car to be N150,000.00 and was not cross-examined on the point. It was not necessary to state the year of manufacture. He added that the court has jurisdiction to assess the value of the car at the time of judgment, which in fact he did. The appellant did not join issue with the respondent on the value of the car in its amended statement of defence. Again, counsel listed what he tagged relevant authorities:

“1. Calabar East Co-operative & 3 Ors v. Ikot (1999) 14 NWLR (Pt. 638) 225, (1999) 12 SCNJ (sic) 321 at 325 ratio 9 & 10.

2. Amadiv. Nwosu (1992) 5 NWLR (Pt.241) 273,(1992)6 SCNJ (Pt.1)59 at 60 per Nnaemeka-Agu, JSC (as he then was).
3. Onwuka v. Omogui (1992) 3 NWLR (Pt. 230) 393, (1992) 3 SCNJ 98 at 101 per Nnaemeka-Agu, JSC (as he then was).
4. NEPA v. Alii (1992) 8 NWLR (Pt. 259) 279, (1992) 10 SCNJ 34 at 35 ratio 3.
5. Odinaka & Sons v. Moghalu (1992) 4 NWLR (Pt. 233) 1; (1992) 14 SCNJ 43 at 45 ratio 6.
6. Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt. 361) 124, (1994) 9 SCNJ at 164 ratio 8.
7. Eseigbe v. Agholor & Anor (1993) 9 NWLR (Pt. 316) 128, (1993) 12 SCNJ 83 at 84 ratio 1.
8. Dakat v. Dashe (1997) 12 NWLR (Pt.531) 46, (1992) 12 SCNJ 90 at 91 ratio 4.
9. Ogunmuyiwa v. Solanke (1956) 1 FSC pages 53-54.
10. Rosenthal v. Alderton & Sons Ltd. (1946) KB 374 at 377.”

Counsel stated that the car has not been surrendered to the respondent and urged the court to resolve the issue in favour of the respondent.

Before I proceed, to determine this appeal, I would like to comment on counsel’s use of decided authorities. Counsel for both parties each listed what he tagged relevant authorities at the end of argument on an issue. Normally, argument on an issue in appeal would involve several points and principles of law and counsel should cite the authority for each principle. By listing the relevant authorities at the end of argument on an issue, counsel is leaving the court with the burden of picking each authority to look for the principle it is meant to support.

In the case of learned Counsel for the respondent, he provided two separate lists in one issue, each list containing 10 cases without identifying any of the authorities with any point or principle of law. Some of the cases appeared on the two list. Counsel deserves commendation for compiling a case book, but identification of the authorities with the specific points they are meant to buttress would have been much more helpful to the court.

Learned Counsel for the appellant raised the issue that neither the ownership nor the value of the car have proved. However, the respondent pleaded his ownership of the car registered as No. OD 515 KA in paragraph 5 of his statement of claim. See page 6 of the records. In paragraph 23 of the statement of claim he claimed, inter alia “…or N150,000.00 the value thereof… ” See page 8 of the records. In its amended statement of defence the appellant merely denied paragraphs 1, 2, 3, 4 and 5 of the statement of claim. In my view, that is a repetition of the general traverse and this view is in line with paragraph 2 in the amended statement of defence in which the appellant denied paragraphs 6, 7, 8, 10, 11, 12 and 13 of the statement of claim and went further to require the respondent to prove each strictly. See page 30 of the records. Also, the appellant did not join issues on the value as pleaded by the respondent in paragraph 23 of the statement of claim. See page 32 of the records. By implication, the appellant admitted or is deemed to have admitted the ownership and value of the car and what is admitted requires no proof.

The only issue now is whether the court below was right when it ordered the delivery of the car with registration No. OD 515 KA to the respondent subject to the car being “in a workable condition before necessary repairs”. Learned Counsel for the appellant argued that the surrender of the car to the respondent or payment of its value is no longer relevant more so as “applicant had repaired it even though repairs were not asked for by the respondent.” I do not know which of the parties’ counsel referred to as “applicant” and I find no evidence in the proceeding that the car had been surrendered to the respondent or that the car was repaired by anyone.

Learned Counsel for the appellant argued that repairs to the car to make it workable did not form part of the respondent’s claim.

On the other hand, learned Counsel for the respondent impliedly conceded this point but argued that since the car had been parked since 18/3/95 and it is expected that it would be dam1ged and an expert did give evidence of its damage the order of “workable condition after necessary repairs” was a consequential order to give effect to the judgment of the court. Therefore, the issue of whether or not the requirement of workable condition after necessary repairs formed part of the claim before the court below is settled.

This leaves the question whether or not the condition imposed for the delivery of the car can be justified as a consequential order, an order necessary to give effect to the judgment and which follows from and is a necessary adjunct to the judgment. I do not share the view that the condition that the car be delivered in a workable condition after necessary repairs is meant to do no more than give effect to the judgment for the delivery of the car to the respondent.

It is not necessary to have the car repaired or to bring it to a workable condition before it can be delivered to the respondent. It could be towed if it has ceased to be in a workable condition. The respondent knows for how long the car had been parked before he sued. He should have anticipated that certain components of the car can no longer function or that the car would need repairs. He ignored these obvious facts and demanded a delivery of the car or its value of N150,000.00 on the facts before the lower court, the court gratuitously awarded the respondent more than he claimed. In my view, and on the facts before the lower court the condition that the car be in a workable condition after necessary repairs is not a consequential order but a separate relief which the respondent could have claimed but did not pay for.

In Afrotec Tech. Servo (Nig.) Ltd. v. & M.I.A. Sons Ltd. (2000) 15 NWLR (Pt. 692) 730 at 752, the Supreme Court held that “a court of law must not grant to a party a relief which he has not sought, or which is more than he has claimed. It is not the function of a court of law to make a gratuitous award. In the instant case, the order made by the Court of Appeal, that the appellant should deliver the equipment to the 1st respondent subject to the latter paying the outstanding price of the goods was never claimed by the 1st respondent. It was gratuitously made by the Court of Appeal and therefore incompetent.”

In the instant case, the order that the car be “in a workable condition after necessary repairs” attached to its delivery of the car is similar to the condition in the case cited above. I hold therefore, that the order that the car be in a workable condition after necessary repairs was not claimed by the respondent and not being a consequential order, is incompetent.

In conclusion, I allow the appeal in part. The condition that the car be “in a workable condition after necessary repairs” attached to its delivery to the respondent is hereby set aside as incompetent, leaving the rest of the judgment of the lower court intact. There shall be no order as to costs.

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Other Citations: (2004)LCN/1614(CA)