(1973) LCN/1741(SC)

In the Supreme Court of Nigeria

Wednesday, April 18, 1973

Case Number:SC. 306/1972
















While a court may in proper case award less than is claimed in a writ, the court cannot and should not award more than the amount of plaintiff’s claim -Per ELIAS CJN.


ELIAS CJN. (Delivering the Judgment by the Court):

In Suit No. 0/162/1967 Egbuna, J., in the High Court, Onitsha, delivered judgment dated January 10, 1972 in favour of the plaintiff (herein respondent) against both defendants (herein appellants) in the total sum of £4,300 made up as follows:

(i) Against the co-defendant for the return of the Peugeot family car No.LM 9231 or payment of its value………………………………. £850

(ii) Damages for loss of earnings on the said vehicle at the rate of £9.10.0d per day as from July 13, 1967 to September 20, 1967 amount to …………………………………… £470

(iii) General damages assessed at …………….. £2,970 The plaintiff’s writ dated September 21, 1967 was endorsed as follows:

“WHEREFORE the plaintiff claims against the defendant a total sum of £1,550: 0:0, made up as follows:-

i. The return of the peugeot family car No. LM 9231 or its value of £850 :0:0.

ii. Damages for loss of earnings on the said vehicle at the rate of £9: 10 : 10d per day from 13th July, 1967, to the 20th September, 1967 …………. £572: 10/-.

iii. General damages limited to £127 : 10/-. iv. Loss of earnings from the 21st day of September, 1967, until judgment is given or the return of the vehicle …. £ : : . Total ……………….£1,550 : 0 : 0d.” The Statement of Claim repeated the above in paragraph 12 thereof. At first the plaintiff sued only the S.C.O.A (Motors) Onitsha, but by a court order dated April 28, 1971 and made on the plaintiff’s application, Bentworth Finance (Nig.) Ltd. was joined as a co-defendant.

The facts of the case which arose out of a hire-purchase agreement may be summarised in the learned trial judge’s words as follows:

“That the plaintiff entered into a hire-purchase agreement with the co-defendant whereby he acquired a Peugeot Family Car No. LM 9231 for an initial payment of £515: 5/- and a further £686 : 19: 4d payable by eight monthly instalments of £85 : 17 : 5d commencing on 12th October, 1966, interest at twelve per cent per annum being payable on arrears of instalments. The plaintiff paid the £515 : 5/- and started to pay the balance of £686 : 19 : 4d including hire charges at the rate of £85 : 17 : 5d per month. He paid the instalments but did not pay the instalment for the month of April, 1967. He made the payment for April in May 1967 as well as the instalment for that month. The plaintiff completed the payments in May 1967 and also in the same month paid the sum of £1 which was to effect the transfer of ownership of the vehicle to him as per the agreement.

On the 13th July, 1967, the defendant seized the Peugeot Family Car and detained it. This was on the instruction of the co-defendant. The instruction was in writing and was given by the co-defendant which was signed by Bentworth Area Manager, Lagos. The plaintiff made repeated demands in person and through his Solicitor for the return of the vehicle and later took out this action.” In the Statement of Defence, the defendant company averred that it was ordered by the co-defendant to seize the vehicle and that it did so as the co-defendant’s agent. The defendant further averred that it had released the vehicle in question to the plaintiff and accordingly denied liability.  The co-defendant, for its part, put forward the defence that the plaintiff had agreed to pay the rentals direct to Bentworth Finance Office in Lagos and that, without any written direction from the co-defendant or any reference to it, the plaintiff failed to pay the 7th instalment at Lagos on April 12, 1967 but instead paid it to the defendant at Onitsha on May 2, 1967. Meanwhile, on May 20, 1967, the co-defendant instructed the defendant to seize the motor-car. The co-defendant admitted in its Statement of Defence that the last two instalments were paid to the defendant at Onitsha, but maintained that both payments were in breach of the hire-purchase agreement.

The learned trial judge found that there was evidence by the defendant that due account had been rendered to the co-defendant by crediting the latter’s account with the two payments by the plaintiff and that the S.C.O.A. (Motors) Lagos was immediately informed. The co-defendant did not deny that these payments were made to S.C.O.A. Onitsha or that the payments were communicated to the Branch dealer from whom the motor-car was collected. In fact, the co-defendant, apart from merely putting in its Statement of Defence, did not put in any appearance in this case and did not give evidence. The learned trial judge observed:

“There can be no doubt that the plaintiff did not follow strictly the terms of the Agreement as to payments. Indeed he paid more than he was supposed to pay at each instalment payment and the co-defendant accepted the extra payments made …………………. In Exhibits ‘D’ ‘D2’, ‘D3’, ‘D4’, and ‘D5’ the plaintiff paid the sum of £86 which was more than the amount for each monthly instalment. All these five payments were accepted by the co-defendant. It seems to me that both sides did not strictly adhere to the terms as the co-defendant in these installmental payments collected more than what was due to the Company. Admittedly they were offered by the plaintiff.”

After observing that the plaintiff had failed to make the payments in question at the due date and in the manner agreed upon, the learned trial judge found that the breaches did not go to the root of the contract to entitle the co-defendant to treat the contract as having been repudiated by the plaintiff. He also found that a penalty of 12% per annum interest was already provided in the hire-purchase agreement itself for any delay in paying an instalment such as that which occurred in paying the April 1967 instalment: see Financing Ltd. v. Baldock (1963) 1 All E.R 443, at p. 450. The learned trial judge also found that the co-defendant admitted that the plaintiff had completed all the payments due in May 1967, but that the co-defendant nevertheless proceeded on July 13, 1967 to instruct the defendant to seize the motor-car from the plaintiff to whom the ownership had been duly transferred on completion of all the payments. The authority given by co-defendant to the defendant to seize the car was dated May 20, 1967, while the plaintiff’s final receipt (Ex. D7) shows that the last payments were made on May 22, 1967. The learned trial judge found on this point as follows:

“It therefore follows that at the time the defendant received the order for seizure the plaintiff had already paid the £172 : 1 : 11d to the defendant. The defendant knew this amount had been paid to them for the co-defendant in respect of the vehicle seized so they had no right then to execute the order. The co-defendant did not intend this order to be carried out if this amount is paid in full. This they made clear in paragraph 3 of their letter to the plaintiff and also in paragraph 3 of the letter of 20/5/67 authorising the seizure.” The learned trial Judge accordingly found that the defendant acted wrongly in seizing the motor-car contrary to the co-defendant’s express instructions. Under the agreement the co-defendant had two choices in case the plaintiff made default: to terminate the agreement with or without notice. He chose to proceed by giving notice in writing, which took effect only when received by the plaintiff. The notice (Ex.N1) was dated May 20, 1967 but no evidence was given as to the mode of its service upon the plaintiff – whether it was by personal service or by post. The plaintiff gave evidence of its receipt by post, which could have taken place from Lagos to Onitsha by May 22, 1967 when the plaintiff had already paid in full in cash at Onitsha. The learned trial judge concluded: “I find that at the time of the seizure the plaintiff had paid all the money outstanding and has exercised his option of purchase. This was done over one month before the seizure. The seizure was therefore wrongful and the plaintiff in my view is entitled to the return of his vehicle.” The learned trial judge also held, rightly in our view, that the defendant was not sued on the agreement, but only for wrongful seizure of the motor-car, its return or payment for its value, and damages for loss of earnings in consequence of the seizure, and that since the defendant acted as agent of the co-defendant, the latter is bound by the former’s act and is vicariously liable to the plaintiff for the resulting damage. In any case, the co-defendant did not in their pleadings disown the defendant. Finally, the learned trial judge found that the defendant’s averment that the vehicle had been returned or released to the plaintiff had no

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