Scoa Nigeria Limited V. J. A. Kehinde & Sons Nigeria Ltd. (2003)

LawGlobal-Hub Lead Judgment Report

VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.

In this appeal, the evidence of both the appellant and the respondent show the following facts. That the Chairman of the respondent who testified as PW 1 in the court below gave instruction to his employee to take the company’s vehicle to the appellant for the appellant to rectify the problem of engine oil consumption in the said vehicle, at a cost of not more than N3,500.

The vehicle is a Mitsubishi Canter vehicle; and it was delivered to the appellant’s workshop at Abeokuta in February 1988, the date is not stated. Exhibit B is a letter dated 18th June, 1989, by which the appellant asked the respondent to go to its workshop at Abeokuta to collect the said vehicle, upon payment of the sum of N11,309.00 costs of the repairs of the said vehicle following the letter, the respondent said she went to Abeokuta workshop of the appellant on 7/6/89 (from the records, the date cannot be correct) and found that the vehicle would not work.

The respondent demanded to see the inventory of the part supplied to the car, and directed that the appellant should do nothing on the vehicle, until he revisits the appellant with his engineer; this instruction is contained in exhibit C. Consequently, the appellant did nothing on the vehicle, and … there is no evidence that the appellant went with his engineer to the respondent, until the appellant wrote to inform the respondent that the appellant would close its Abeokuta workshop, and will transfer and take to Ibadan, the respondent’s vehicle if the respondent did not go to collect his vehicle at Abeokuta workshop.

The letter of the appellant is exhibit D. The respondent instructed his solicitor to write to the appellant in exhibit F, dated 15/6/1990.

Series of communication were exchanged between the respondent and the appellant. The respondent submitted to the appellant a list of the repairs required to be carried out on the vehicle, which the appellant refused; to countenance, it is the estimate; that is exhibit 1; at which stage the vehicle had been transferred to Lagos, where upon in about 1991; March, the respondent demanded the return of the said vehicle and the appellant demanded, the payment of the unpaid bill of the respondent.

Because the negotiation between the parties failed, the respondent issued a writ of summons, and claimed from the appellant as defendant, “the returns to the plaintiff of the Mitsubishi Canter vehicle; Registration No. OG3159 EC property of the plaintiff packed at the Ibadan workshop of the defendant since June 1989, since the defendant failed to overhaul the said vehicle according to the 1988 agreement between the plaintiff and the defendant (11) N937,550 general and special damages for breach of the contract.

The plaintiff demanded for the return of the said vehicle in a letter dated 15th June, 1990, which the defendant refused to comply with. With his amended statement of defence, the defendant filed a counter-claim for the recovery of the sum of N11,309.00 cost of repairs of the said vehicle, and the payment of the sum of N250, per month for the storage of the plaintiff’s Mitsubishi Canter vehicle in the defendant’s garage, and interest thereon at 15% on the said sum from June 1989 when the plaintiff failed to pay the sum of N11,309.00 for repairs carried out on the vehicle and collect same despite repeated demands.”

After reviewing the evidence in some respect, the learned trial Judge recorded as follows:
“There shall therefore be judgment for the plaintiff for:
(a) The sum of N20,000 damages for the loss of the chickens since 1991.
(b) The sum of N40,000 damages for expense incurred on staff transportation since 1991
(c) The sum of N154,820 being the amount due to the plaintiff for the repairs of the vehicle.
(d) Immediate release of the vehicle No. OG 3159 EC to the plaintiff by the defendant.
(e) Plaintiff shall be entitled to N5,000 costs.
(f) The defendant shall be entitled to judgment for N11,084,56 in its counter-claim. Its claim for storage at N250 per month is dismissed in its entirety.

The defendant will be entitled to N100.00 cost. Judgment in the suit was delivered on 16th February, 1998, and the defendant appealed the judgment on 20th February, 1998. The appeal is founded on six grounds, and it seeks an order of this court to set aside part of the judgment. The appellant formulated five issues; and the respondent four issues. The appellant’s issues as contained in its brief of argument filed in this court on 30/8/2001 they are as follows:
“(1) Whether in the absence of a finding by the trial court of a breach of contract against the defendant/appellant; a subsequent award of damages against it has not occasioned a miscarriage of justice.

(2) Whether the trial court was not wrong in law when it awarded damages not specifically claimed by the plaintiff.

(3) Whether it does not amount to an arbitrary and double compensation for the trial Judge to have initially awarded N20,000 against the defendant for the loss of the plaintiff; chickens occasioned by the in availability of a vehicle, and later award N40,000 as damages for costs incurred by the plaintiff in paying its staff and cost of alternative transportation due to the same reason.

(4) Whether the trial Judge was right in holding that defendant had a duty to mitigate the plaintiff’s loss.

(5) Whether the trial Judge was right in not holding that the plaintiff failed to take steps to mitigate its loss.”