Kasali A. Raimi Vs Moshudi Funso Ogundana (1986)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C. 

On the 11th day of February, 1986, I dismissed the appellant’s appeal to this Court. I then indicated that I would give reasons for my judgment today. I now give those reasons.

In the substantive suit which emanated from the High Court of Rivers State, Port Harcourt Judicial Division, the appellant herein, who was plaintiff, claimed against the respondent, 2nd defendant, and one other, Moshudi Funso Ogundana, who neither appealed to the Court of Appeal nor this Court, in these terms:

1. The return of the Plaintiff’s Toyota Hiace Bus No. RV1554A seized by the Defendants at Port Harcourt on or about the 11th of September, 1979 or the payment of the sum of N10,000 representing the value of the said vehicle at the time of seizure.
2. The sum of N10,000 as special and general damages for wrongful seizure and unlawful detention of the said vehicle by the Defendants for a period of 123 days i.e., between 11th September, 1979 and 11th of January, 1980 inclusive.

Particulars of Damages

(a) Special Damages: Loss of earnings N6,150.00

for 123 days at N50.00

(b) General Damages 3,850.00

Total 10,000.00

Pleadings were ordered and filed. From the pleadings of the parties, it is easy to extract the main issues in controversy. The plaintiff/appellant averred that he is a butcher, the 1st defendant, a motor dealer, while the 2nd defendant/respondent is said to be a motor dealer and to trade in the name and style of Akintoye Motors. In paragraphs 4, 5, 6, 7, 10, 11, 13, 15, 17 and 18 the plaintiff/appellant further averred as follows:-

4. On the 28th of September, 1978, the Plaintiff at Port Harcourt approached the 1st Defendant for the sale to him on credit one of the Toyota Hiace Buses he deals in.
5. …
6. In pursuance of the said agreement, the Plaintiff paid to the 1st defendant the sum of N2,000 (Two thousand Naira) on the same day and on the 1st of October, 1978 made another payment of N400.00 to the 1st defendant before the vehicle was delivered to him on or about 2nd October, 1978.
7. The 1st defendant issued the plaintiff receipt No.040 of 28/9/78 and a Deposit and Instalmental Card bearing the trading name of the 2nd Defendant. The two documents are hereby pleaded.
8. The Plaintiff thereafter began to run the vehicle as passenger bus in Port Harcourt and was so successful in business that he decided to pay more than the agreed monthly instalment in order to finish the payment early.
9. The Plaintiff accordingly paid to the 1st Defendant N800.00 on the 5th of every month from November, 1978 to April, 1979 and each time an instalment was paid it was recorded on the Deposit Instalment Card and signed by the 1st Defendant as paid …
10. The Plaintiff made a final payment to the 1st Defendant to complete the payment of the purchase price on the 5th October, 1979 when the 1st Defendant acknowledged the receipt on a piece of paper which he signed pending the issue of a final receipt
11. The Plaintiff’s vehicle was accordingly seized on the instruction of the 2nd Defendant and taken away from the Plaintiff and has since been detained by the Defendants…
12. The Plaintiff avers that at no time did he enter into any Hire Purchase Agreement with the 1st Defendant and will contend at the trial that the agreement between him and the 1st Defendant in respect of the said vehicles is one of Credit Sale and not one of Hire Purchase.
13. The Plaintiff will further contend at the trial that the 2nd defendant is bound by the transaction between the Plaintiff and the 1st Defendant in respect of the said vehicle, the 2nd Defendant having cloaked him the 1st Defendant with an apparent usual authority displayed on the Deposit and Instalmental Sheet Card”.

The more important paragraphs of the 1st Defendant’s reply are 6, 7 and 11. There the 1st Defendant averred as follows:-

(6) The, 1st defendant deals in vehicle which he always bought on credit from the second defendant and which first defendant resells to customers in Port Harcourt on Hire Purchase paying back to the second defendant as agreed to by both defendants.

(7) The first defendant did not inform second defendant that plaintiff was owing anything on the vehicle in question nor did first defendant at any time ask, request or authorise second defendant or any of his agents or servants to seize plaintiffs vehicle …

(11) The said Hire Purchase Agreement and all other documents relating to the sums of money first defendant is to pay second defendant, how much first defendant had paid to second defendant and what balance remains all in respect of the vehicle trade between both of them are now in the custody of Ondo State Police in connection with the criminal case referred to in paragraphs 9 and 10 above ….. and Police have refused to surrender them”,

As for the 2nd defendant and respondent herein, paragraphs 2, 5, 8, 9, 12 and 13 of his statement of defence contained the crux of his defence to the plaintiffs’ action. In those paragraphs he averred as follows: