S.O. Babatunde & Anor V. Model Industries Nigeria Limited (2003)

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PIUS OLAYIWOLA ADEREMI, J.C.A. 

The plaintiff (hereinafter referred to as the respondent) claimed against the defendants (hereinafter referred to as the appellants) jointly and severally the sum of N1 million (One million Naira) being special and general damages for the conversion of the respondent’s plants, machines and motor vehicle. Pleadings filed and exchanged between the parties are the statement of claim and reply to amended statement of defence and counter-claim by the respondent and with the leave of the court, amended statement of defence and counter-claim.

Briefly put, the plaintiff/respondent’s case per its pleadings is thus: The respondent claimed to be the owner of plant and machinery for making polythene bags and tyre retreading that were in a factory at 19 Ijaiye Road, Ogba. It based its ownerships on a joint venture agreement dated 21st March, 1977 between the respondent and one company by name Dragon Gate Trading Company Limited represented by a man called Yuen Wing Ting who was later to be deported. Dragon Gate Trading Company Limited, through its representatives, Yuen Wing Ting imported the plants and machinery which were the company’s consideration under the joint venture agreement plus the technical know-how supplied.

The respondent further avers that Ting, the representatives of the defendant, set up the plant and machines at 19 Ijaiye Road, Ogba under the name Standard Industries Company Limited with fraudulent intention. As a result of the discovery of the fraudulent intent, the Standard Industries Company Limited and the plaintiff/respondent entered into terms of settlement dated 12th July, 1984, however Ting was deported out of Nigeria by the Nigerian Security Organisation. The respondent further averred that following the deportation the 1st defendant/appellant broke into the factory changed the lock and removed certain machines which he sold or converted to his own.
The total value of all the machines was put at N560, 000.00.

The defendants/appellants’ case gleaned from their pleadings, is that the 1st defendant/appellant was the landlord of the property and premises at 19 Ijaiye Road, Ogba and Ting was his tenant. The plaintiff/respondent was Ting’s customer and bought polythene bags from him. For the reason that Ting lacked proper work permit, the plaintiff/respondent got him to enter into terms of settlement with it which enabled it (respondent) to co-habit with him on the premises.

Sequel to the deportation of Ting, he (Ting) gave the keys of his factory to the 1st defendant/appellant requesting him to look after his machines. By this arrangement, the 1st defendant/appellant became the bailee of Mr. Ting’s machines. By the force of an order of interlocutory injunction obtained by the respondent in suit No. ID/1642/87, it (respondent) removed all the machines and 125 KVA electricity generating set which set it was claimed was jointly owned by Ting and the 1st defendant/appellant.

Both sides called evidence in support of the averments in their respective pleadings. Thereafter, written addresses were submitted by both sides. Judgment was delivered on the 8th of September, 1995 wherein N560,000.00 was awarded as damages in favour of the plaintiff/respondent for the conversion of its machines; N15,000.00 was awarded as set-off in favour of the 1st defendant/appellant, the counter-claim of the defendant/appellants were dismissed.

Being dissatisfied with the said judgment, the defendants/appellants filed a notice of appeal dated and filed on 6th of November, 1995 which carries 14 (fourteen) grounds. Distilled from these grounds of appeal for determination by this court are four issues and as set out in their brief of argument they are in the following terms:
1. Whether the evidence of the plaintiff’s only witness Mr. Michael Alaba Onagoruwa, was admissible in proof of transactions involving the plaintiff that took place both before and after 1987.
2. Whether on its pleadings and the evidence adduced in support of its pleadings the plaintiff proved ownership of the plants and machines that were at 19 Ijaiye Road, Ogba, Lagos State.
3. Whether on its pleadings and evidence adduced in support of its pleadings the plaintiff proved the value of the machines it claimed were converted by the defendants.
4. Whether the learned trial Judge correctly evaluated the evidence given by the 1st defendant in coming to the determination that the defendants had failed to prove their counter-claim.

The respondent for its part identified four issues from the aforementioned grounds and contained in its brief of argument they are as follows:
1 Is the trial court not right in holding that there was a contract between the respondent and Mr. Yeun Wing representing himself and a company known as Dragon Gate Trading Co. Ltd. by which ownership of the plants and machineries at 19, Ijaiye Road, Ogba, Lagos was covered on the plaintiff/respondent.
2.Is the trial Judge not right in admitting the evidence of the plaintiff’s only witness.
3.Based on the evidence adduced at the trial, is the respondent not entitled to the amount awarded to it as value of the machines and plants, converted by the appellants.
4.Based on the evidence adduced at the trial, is the trial court not right in holding that the appellant had not proved their counter-claim.

When this appeal came before us on the 23rd of September, 2003, the appellants were absent so also their counsel. Exercising the power of this court under Order 6 rule 9(5) of the Court of Appeal Rules 2002 we treated the appeal as having been argued as the briefs on both sides have been duly filed. Suffice it to say that Mr. Adefioye, learned counsel for the respondent who was present in court announced his reliance on and adoption of the respondent’s brief filed on 26th February, 2003 and urged that the appeal be dismissed.

I have had a close study of all the issues for determination and I am clear in my mind that issue No.1 on the appellants’ brief can be taken together with issue No.2 on the respondent brief. Issue No.2 on the appellants’ brief can be considered together with issues Nos. 1 and 3 on the respondent’s brief. While issue No.4 on the appellant’s brief is identical with issue No.4 on the respondent’s brief. I shall consider all the issues together as they dovetail into one another.

In arguing issues Nos. 1 and 2 on the appellant’s brief which I have earlier said can be taken together with issues Nos. 1, 2 and 3 on the respondent’s brief, the appellants in their brief contended that Michael Alaba Onagoruwa never proffered any believable evidence that he was an employee of the plaintiff/respondent.

Honorarium other than salary was established as money flowing from the respondent to him. The testimony of Onagoruwa was therefore hear say; it lacks evidential value and decision in Kate Enterprises Ltd. v. Daewoo (Nig.) Ltd. (1985) 2 NWLR (Pt.5) 116 could not advance the case of the respondent. That evidence, it was further submitted is inadmissible or in the alternative no weight should be attached to it; and the piece of evidence that the machines were installed at Adekunle village is inadmissible and having been admitted wrongly as there is no fact pleaded backing it up, it should be expunged reliance was placed on the decision in George v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71 and George v. U.B.A. Ltd. (1972) 1 All NLR 347.

It was their further contention that there is no credible evidence of transfer of the machines to the respondent’s exhibit A tendered made no reference to the goods that were at 19 Ijaiye Road, Ogba; exhibit A, the business agreement wherein it was stated that Ting was to be given 40% of the shares in the respondent contradicts exhibit B minutes of meeting purportedly held between the respondent and Dragon Gate Ltd. which stipulates the shares to be given to Ting as 47%.