West African Oilfields Services Limited V. U.a.c. Of Nigeria Limited (2000)

LawGlobal-Hub Lead Judgment Report

PATS-ACHOLONU, J.C.A.

T

he appellant an oil service related company sometime between 1975 to 1976 delivered to the respondent some machines and equipment for repairs and refurbishment. The respondent later sent invoices to show that repairs had been effected in the sum of N112,624.28. The appellant would have none of that as it insisted the money should be considerably less than that sum. However, the parties later agreed to the sum of N74,069.29. This amount was paid instalmentally as agreed by the parties and the instalmental payment was completed in February, 1979.

Having completed the cost of alleged repairs, the respondent for some unaccountable reason failed to deliver the goods. The appellant stated that it was indeed discovered that no repairs or refurbishment of the equipment was made and of course the failure to repair and deliver the equipment and machines in good working condition which was the basis of the contract led to the inevitable detention of the goods; whereupon the appellant claimed as follows:

The delivery up to the plaintiff in good and working condition of the equipment specified in paragraph 5(a), (b), (c), (d) and (1) of this statement of claim or their value:-

(i) 3 D333 at minimum of N45,364.92;

(ii) 3 Scrapers at minimum of N120,000.00.

(b) Loss of use of the said equipment and machines during the period of wrongful detention from the 27th day of September, 1977 when the defendant obtained judgment in respect of purported labour and material supplied in respect of the equipment to and including the 28th day of February, 1979.

(i) The two Cat Marine Unit D333 at the rate of N400.00 (four hundred naira) per day per machine for 17 (Seventeen) months – N408,000.00.

(ii) Loss of use of two Cart Scrappers Model 621B 23H1301 and D336-23H1301 at the rate of N525.00 (five hundred and twenty-five naira) per day per scraper for 17 months – N535,500.00.

(iii) Cart Scrapers Model 619-61F84 at the rate of N450.00 (four hundred and fifty Naira) per day for 17 months – N229,500.00.

Total for (b) (i-iii) – N1,174,000.00.

(c) Refund to the plaintiff of the money paid to the defendant as claimed by it for services and materials allegedly rendered and supplied but which were not in fact rendered and or supplied N74,069.29.

(d) General damages for continued detention of the plaintiffs said equipment since filing of this action – N300,000.00″

The respondent rejected all averments that tended to show that there was a breach of contract from its side stating that all necessary repairs were carried out. It averred further that the issue of repair or non repairs was a matter that should have been taken up when the respondent took an action against the appellant originally for the recovery of the appellant’s indebtedness originally communicated to him through the invoice. The respondent in respect of having exposed those machines entrusted to it for repairs said it does not usually provide a garage coverage for those types of equipment and that if after nearly 3 years of repair when the machines were not collected then any resultant condition must be due to non-use. Besides the respondent said that it is not part of its duty to return the goods after the completion of the repairs.

In his judgment. the learned trial Judge dismissed the suit and partly non-suited the plaintiff in respect of the item for detention of 2 machines. On the whole the action failed.

Dissatisfied with the judgment of the lower court the plaintiff as appellant filed notice of appeal and framed 6 issues viz:

“1. On the issues joined in the pleadings, was appellant’s claim founded on breach of contract/agreement and negligence by bailee or was it an action founded on the tort of detinue?

2. Was the learned trial Judge right to ignore appellant’s claim for breach of contract/agreement and negligence by bailee and to have based his judgment on the tort of detinue which did not form the substratum of the appellant’s claim?
3. On the facts before the court and or as found by the learned trial Judge, was:

(a) the agreement/contract and its breach as pleaded in the statement of claim not established?

(b) negligence by bailee not established?

4. Was the learned trial Judge right in holding that there was no condition in the agreement between the parties requiring the respondent to deliver the equipment to the appellant after repairs?
5. In an action by a bailor against a bailee for return of goods held under a contract of bailment, is proof of a previous demand by the bailor and refusal by the bailee acondition precedent to the success of such an action.
6. On the facts and findings in this case and on the totality of the evidence before the court, was the learned trial Judge right to dismiss part of the appellant’s claim in its entirety and to non-suit it in respect of the other part:

The respondent framed 3 issues for determination. They are as follow:-

“1. On the pleadings and the evidence given in the lower court, what were the appellant’s cause of action?

2. Can the parties’ solicitors by the exchange of Exhibits M and N, as contended by the appellant create another binding contract on the parties besides that which the parties entered at the time the equipment was brought to the workshop of the respondent for necessary repairs in 1975?
3. Was any of the causes of action established by evidence in court warrant a reversal of the judgment of the lower court?

From the nature of the issues framed as can be gleaned from the record the issues really circumscribe around the following questions namely:

“1. Was there a breach of contract by the respondent?

2. Is the respondent liable for action in tort for unreasonably delaying the equipment and machines of the appellant after the repairs?

The appellant contend breach of contract. When the appellant sent its machines and equipment for repair and the respondent accepted them and later sent a bill of N112,624.28 which through the mediation of counsel on both sides was reduced to N74,069.29 there was a contract. It would appear that the respondent held on to the equipment until completion of that money. In effect, the full consideration for which will flow from the appellant to the respondent had not been fully completed and so the equipment was detained. It would seem to me that the issues I raised are inextricably so involved that one leads to the other and in that case the points must be argued together. It must be pointed out that the appellant had admitted liability for the costs of repairs after the solicitors for both parties have finally agreed as to what the respondent was entitled. The money was not paid immediately and the respondent then as plaintiff went to court and obtained judgment. The appellant has claimed that it was induced by the representation of the respondent that the equipment and machines were in order that was why it admitted liability to the costs of repairs. The appellant had pleaded that it was a term of the agreement that the defendant/respondent would keep the machines in a garage/workshop that was fit to keep such goods in good condition, yet it failed to do so. Now in a letter dated 19/10/81 the Managing Director of the appellant’s company wrote to the respondent as follows:

“Suit No. PHC/55/97

West African Oilfield

Services Limited

vs.

U.A.C. (Nigeria) Limited

19-10-81

The Eastern Area Manager,

Tractor and Equipment,

P.O. Box 6,

Port Harcourt.

Dear Sir,

Marine Engine Overhauls

Sometime ago, we discussed this with you in your office and it was mutually agreed that you will sell the D333 Marine Engines and offset the value against invoices concerned with those engines.

Herewith we confirm this agreement.

Yours faithfully,

for: West African Oilfield Services (Nig) Ltd. (SGD.)

1. A. Kennedy

Managing Director”

Exhibit “A” showed that the appellant apparently being unable to pay instructed the respondent to sell some of the equipment to reduce costs of repairs. In November, 1978 by Exhibit F the appellant wrote to the respondent and made reference to their delivery notes to the effect that if the machines failed to operate the respondent would be contacted. A reply from the respondent was to the effect that the non functioning or malfunctioning of the machines and equipment might not be unconnected with the goods having being lying in the “yard” of the respondent awaiting payment of the outstanding debts and that they might have been affected by atmospheric pressure. From the respondent’s point of view, these were not collected until four years after repair work was fully effected on them.

These facts were obviously found out after the appellant have admitted owing the respondent for the cost of repairs. The appellant contended that obviously the repairs were not made. In the earlier action filed by the respondent for the recovery of the balance of debt due to repairs, the appellant as defendant in that case averred as follows in its statement of defence:-

“The defendant company admits liability to the plaintiffs claim of N57,069.29 as averred in the plaintiff’s statement of claim.”

My understanding of this defence is that the appellant in this case as defendants accepted that repairs were indeed effected and it was liable to pay. The whole affair lasted from 1975 – 78. All this time the appellant never took it upon itself to test the machines even if it would not pay the full money to recover the machines and equipment due to obvious impecuniousity. Having in my view decided to accept liability the inference is that the machines were in good condition to perform. It cannot turn round to say that no work was done. The whole transaction relating to the delivery of machines and equipment for repair and subsequent court action to recover the debt terminated to all intents and purposes after the action and judgment in that case. If repaired and were left uncollected for a period of about three years with the result they became affected by natural elements which led to corrosion. it is to be expected that the machines cannot be  expected to perform in the way it should have if collected soon after repairs were carried out. It was the inability of the appellant to pay the money at and as when due that led to the constructive seeming palpable detention of these equipment and machines. If the money had been paid at the right time the issue of delay or alleged detention of the goods would not have arisen. I am in agreement with the learned trial Judge when he said:

“As I have already found, one of the said machines and equipment was sold by the defendants and its value credited to the plaintiffs’ account at their (plaintiffs’) request, three were returned to the plaintiffs in 1978 and 1979 and only two are still being held by the defendants. It is therefore difficult to see how the claim by the plaintiffs for the return of the four or payment of their value can be maintained. In any case, in an action in detinue by a bailor against a bailee whose bailment has determined, there must be demand for the goods or chattels, made by the bailor and refusal to deliver up by the bailee before the action is brought in order to establish a wrongful detention: Christopher Udechukwu v. Isaac Okwuka (1956) 1 F.S.C. 70; and Capital Finance Company Ltd. v. Bray (1864) 1 WLR 323.

There is no evidence before me of demand and refusal. Accordingly, the claim for the delivery up of the said machines and equipment, or payment of their value must fail, save as regards the two which are still being held by the defendants.”

Who was responsible for the detention of the equipment and machines. The matter squarely rested with the appellant. In its tardiness coupled with its financial state it compounded its problems by not making a demand of return of the goods or paying earlier. I dare say it was the utter neglect on the part of the appellant that led to its troubles. Refusal or failure to surrender or deliver on demand is the essence of detinue. Besides where prior to the demand for return of goods in the custody of the defendant, the goods got lost or destroyed, the defendant will not be found liable. See Whiteley Ltd. v. Hilt (1918) 2 K.B. 808.

It must always be shown for proof of detinue that the goods were detained in defiance of the demand of return by the plaintiff.

The cause of action is founded on a demand by the plaintiff and a refusal by the defendant for return of the goods. There is no liability incurred by the defendants for failing or omitting to deliver the goods to the plaintiff where there exists no contractual duty to do so and where there is manifested no intention to detain the goods in defiance of the plaintiffs’ wish. See Clement v. Flight (1946) 16 N.W.42; Capital Finance Co. Ltd. v. Bray (1864) 15 Q.B. 859, 867, 868.

Although the goods continued to be in the possession of the respondent for upwards of 3 years, the appellant never made any demand of them. The continued retention of the goods in the premises of the respondent is singularly attributable to the inordinate delay by the appellant to take back the goods it sent out for repairs. When a person or company sends machines to be repaired it is axiomatic that he would in due course collect them after the repairs have been done. Where he fails to do so in time and the goods in possession of the other party goes bad, he cannot turn round to allege and lay a claim on detinue on the ground that his machines were not returned when he has been responsible for the delay caused in recovering them.

In this case, I fail to see how the respondents are to be blamed. In the circumstance the appeal fails and is dismissed. The judgment of the lower court is affirmed. The appellant is to pay costs assessed at N4,000.00 to the respondent.

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Other Citations: (2000)LCN/0799(CA)