Law Report

(Alhaji Jimoh Ajagbe) Appellant and (Layiwola Idowu) Respondent
A. M. MUKHTAR, JSC (Presided & Delivered the lead judgment) WALTER SAMUEL NKANU ONNOGHEN, JSC IBRAHIM TANKO MUHAMMAD, JSC JOHN AFOLABI, JSC BODE RHODES-VIVOUR, JSC

FACTS

The Plaintiff/Respondent bought a Toyota Liteace bus from the Defendant! Appellant on a credit – sale basis for the sum ofN250,OOO.OO. He made an initial payment ofN20,OOO.OO as deposit in April 1992 and N2,OOO.OO in June, 1992. It was agreed that the Plaintiff/Respondent was to make monthly payments until the whole sum was liquidated.

After making a total payment of N30,OOO.OO, he was unable to meet up with the monthly payments. Consequently, the Defendant/Appellant forcibly recovered possession of the vehicle. When the Plaintiff/Respondent took the sum of NI2,OOO.OO to the Defendant, he was told the vehicle had already been sold. The Defendant contended that the Plaintiff took on hire the Toyota Liteace Bus vehicle under a hire purchase agreement.

However, Plaintiff/Respondent’s case was that he had a credit sale agreement with the Defendant who argued that it was hire purchase.

Aggrieved by the sale of the Toyota Liteace bus, Plaintiff/Respondent took out a Writ of Summons against the Defendant! Appellant in the High Court of Justice, Osun State. The learned trial Judge entered judgment in favour of the Plaintiff/Respondent in the sum ofN300,OOO and also awarded the sum ofN293,OOO and N30,OOO as special and

general damages respectively in favour of the Plaintiff/ Respondent.

Dissatisfied with the judgment of learned trial Judge, Defendant! Appellant appealed to the Court of Appeal which allowed the appeal in part. The Defendant! Appellant further appealed to the Supreme Court against the decision of the Court of Appeal.

ISSUES

1. Whether the learned Justices of the Court of Appeal were right in law to have held that there appears to be no consensus in the minds of the parties at the time of the transaction.

2. Whether the learned Justices of the Court of Appeal were right in law when they held Exhibit’ A’ was not a valid Hire Purchase Agreement but that of a credit sale having regard to the evidence.

3. Whether the learned Justices of the Court of Appeal were right in their award of the sum ofN250,OOO.OO to the Respondents as the sale value of the vehicle.

4. Whether the learned Justices of the Court of Appeal were right to award special damages in favour of the Respondent which was not predicated on an evidence as required by law.                “

Held: (Unanimously allowing the appeal in part.)

On distinction between credit sale agreement and hire purchase agreement.

In a credit sale agreement for the purchase of a

property, the buyer pays a deposit followed by instalmental payments. Once the agreement is entered into by the parties, ownership of the vehicle is transferred to the buyer. If the buyer defaults or is unable to meet his financial obligations to the seller, the option open to the seller is an action to recover that balance of payment owed by the buyer/ purchaser. On the other hand, in a hire purchase agreement, ownership of a property remains with the seller until payment is fully made. Failure of buyer/hirer to pay the installments entitles the owner to take possession of the property.

“The difference between a contract of sale at a price payable by installment and a contract of hire purchase is that in the former, the purchaser has no option of terminating the contract and returning the chattel, whereas in the latter there is none. In each case, the substance of the transaction or hire agreement must be looked at and not the mere words. “ -Per Mukhtar, JSC [Pp. 95 – 96] paras. G – E

On test for determining existence of an agreement between parties.

An agreement is not a mental state but an act, and as an act, is a matter of inference from conduct. The Parties are to be judged, not by what is in their minds, but by what they have said or written or done. [Po 98] paras. B – C

On when an Appellate Court would interfere with findings of a lower Court.

An Appellate Court will not ordinarily interfere with findings of a lower Court. However, an Appellate Court will interfere with the findings where they are not supported by credible evidence, are perverse and may have occasioned miscarriage of justice. See Amadi v. Orisakwe (2005) 7 NWLR (Pt. 924) pg. 385; Shittu v. Fashawe, Supra; State v. Ajie (2000) 11 NWLR (Pt. 678) pg. 434. [Po 108] paras. G – B

On when an Appellate Court can review award of damages made by a trial Court. An Appellate Court will review an award of damages downwards where itfinds it excessive or not in accordance with the principle of law. See Stirling Civil Eng. (Nig.) Ltd. v. Yahaya (2005) 11 NWLR (Pt. 935) pg. 181; Otaru and Sons Ltd. v. Audu Idris(1999) 6 NWLR (Pt. 606) pg. 330 and Jarmakani Transport v. Abeke (1963) 1 All NL.R 180. [Po 107] paras. F – G

On nature of special damages.

The claim for special damages requires be specifically pleading and strictly proving with sufficient and credible evidence. See Oshinjirin Ors. v. Alhaji Elias & Ors. (1970) 1 All NLR 153; Dumez (Nig.) Ltd. v. Ogbeli (1972) 1 All NLR 241 and Gonzee (Nig.) Ltd. v. NERDC (2005) 1.3 NWLR (Pt. 943) pg. 634. [Po 103] paras. B – C

On duty of Court in evaluation of evidence.

A Court in evaluating evidence must take into consideration every little aspect of it and the surrounding factors. It is not for the Judge to accept evidence hook, line and sinker without weighing its preponderance and probability. Civil suits are determined on preponderance of evidence and balance of probability. See Shittu v. Fashawe (2005) 14 NWLR (Pt. 946) pg. 7; Elias v. Omo-Bare (1982) 5 SC 25 and Odulaja v. Haddad (1973) 11 SC 357.

[Pp. 106 – 107] paras. G – A

On treatment of evidence of facts not in dispute Evidence of a fact that is not in dispute and that is relevant to a matter in controversy is good and credible evidence that can be relied upon for the determination of the issue in controversy. See:

Omoregbe v. Lawani (1980) 3-4 SC 108; Okupe v. Ifemembi (1974) 3 SC 97 and Durosaro v. Ayorinde (2005) 8 NWLR (Pt. 927) pg. 407. [Po 95] paras. E – G

A. M. MUKHTAR, JSC (Delivering the lead judgment):­The Plaintiff’s claims against the Defendant in the High Court G of Justice, Osun State, as per the writ of summons are:-

The return of the Toyota Liteace Bus with registration number as 68 GA Chasis No. 00194483 which the Plaintiff bought on credit from the Defendant-, but which the Defendant unlawfully seized from the Plaintiff at Ifon-Osun on 4th December, 1992.

The sum of five hundred Naira (500.00) per day for loss of use of the vehicle from 4th December, 1992 till the vehicle is returned to the Plaintiff.

The sum of fifty thousand Naira (50,000.00) being general damages for the unlawful seizure of the vehicle.” “In the Alternative to Claim 1 Above

The Plaintiff claims the sum of Three hundred thousand Naira (N300,000.00) being the current market c value of the Toyota Liteace bus with registration No.