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

OS 68 GA Chasis No. 0019483 which the Plaintiff bought on credit from the Defendant, but which the Defendant unlawfully seized from the Plaintiff at Ifon- D Osun on the 4th December, 1992.”

Briefly put, the case of the Plaintiffs that he bought a Toyota Liteace bus from the Defendant on a credit – sale basis at N250,000.00, for which he made an initial payment of N20,000.00 as deposit in April 1992, and N2,000.00 in June, 1992.

The Plaintiff was to make monthly payments until the whole sum was liquidated and after making a total payment  of N39,000.00 he could not meet up with the monthly payments Consequently, the Defendant forcibly recovered  the keys of the vehicle. When the Plaintiff took the sum of NI2, 000.00 to the Defendant, he was told that the vehicle G had already been sold to another person. According to the Plaintiff, the sale was irregular, illegal and-unlawful.

The case of the Defendant is that the Plaintiff took on hire a Toyota Liteace bus vehicle under a hire purchase agreement executed in June 1992. The Plaintiff made the initial payment ofN22,000.00, and he was to make a regular. Monthly payment ofN6,000.00 which he failed to meet. On the basis of the agreement there was an outstanding balance

A  ofN12, 330.00 as at 8th November, 1992 when the Plaintiff informed the Defendant that the engine of the vehicle had broken down. The Defendant proposed repairing the vehicle and thus increasing the monthly payment, but the Plaintiff
B  refused. On 10th December, 1992, the Plaintiffs friend one Lasisi Liasu  returned the vehicle to the Defendant on the instruction of the Plaintiff, and as at that date there was an outstanding balance of N18,330.00 on the payments, for
c which demand was made vide a solicitor’s letter. The Defendant effected repairs on the vehicle at a cost of NI0, 300.00.

The Plaintiff and Defendant testified in Court. The D learned trial Judge found the Plaintiff case proved and made the following orders in favour of the Plaintiff:-
“(1) The Defendant is hereby ordered to pay the Plaintiff the sum of N300, 000.00 (Three hundred thousand naira) being the current market value of the Toyota Liteace but with registration No. OS 68 GA Chasis No. 0019483 which the Plaintiff bought on credit from the Defendant, but which the Defendant unlawfully seized from the Plaintiff at Ifon-Osun on the 4th day of December, 1992.

(2) The Defendant is hereby ordered to pay the Plaintiff the sum ofN293, 000.00 (Two hundred and ninety three thousand naira being for loss of use of the vehicle from”-12-92 atN500.00 per day until today 12-7-94.

3.    The sum ofN30, 000.00 (Thirty thousand naira general damages) is awarded in favour of the Plaintiff against the Defendant.”

4.    The Defendant was dissatisfied with the decision, so he appealed to the Court of Appeal, Ibadan Division, which allowed the appeal in part. The Defendant has again appealed to this Court on four grounds of appeal. As is the practice in this Court learned Counsel exchanged briefs of argument which were adopted at the hearing of the appeal. The following issues for determination were distilled from the grounds of appeal, and they are contained in the Appellant’s brief of argument. They are:-

“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 to the Respondent 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 any evidence G tlS required by law.
I will treat issues (1) and (2) together.

The learned Counnsel for the Respondent adopted the Appellant’s issues for determination in the Respondent’s brief of argument. The argument of the learned Counsel for
the Appellant under issue (1) is that Exhibit’ A’ which is the basis of the agreement between the parties was clear in all
The terms, and that where the agreement is clear and unambiguous, it is the duty of the Court to give effect to the agreement and not to attempt to write agreement for the parties. He referred to the case of Alhaji Onibudo v. Alhaji

B     Akibu (1972) 7 SC 60. The excerpt of the judgment of the lower Court attacked by the Appellant in this argument is as follows:-

“In this instant appeal, it appears that there is no consensus of the minds of the parties at the time of the transaction.”
D     It is also the argument of the learned Counsel for the Appellant that nowhere in the pleading or evidence or oral argument of both Counsels was consensus of the parties mentioned. The learned Counsel further argued that the duty of the Court

E     is to confine itself to the evidence before it and not to embark on voyage of discovery. “In the circumstance it was wrong for the Court to raise the issue suo moto. He placed reliance on the cases of Pascutto v. Adecentro (Nig) Ltd. (1997)

F     11 NWLR (Pt. 529) pg 467; Adebanjo v. Brown (1990) 3 NWLR (Pt. 141) pg 661, and Chugbo Chemists Ltd. v. Chugbo (1996) 5 NWLR (Pt. 447) pg 246. It is also argued that where agreement between parties is clear and unambiguous, the duty of the Court is to enforce the agreement.See the case of Oviasu v. Oviasu (1973) 8 N.S.C.C. 502.

In his reply, the learned Counsel for the Respondent has submitted that the minds of the parties before the trial Court did not meet on the fundamental basis of the contract they entered. The meeting of the minds is called ‘consensus ad idem’. He cited the cases of Nigerian Bank for Commerce and Industries. v. Integrate Gas (Nig.) Ltd. (1998) 8 NWLR (Pt. 613) pg. 119, and Norwich Union Fire Insurance Society v. Price (1943) AC 455. He submitted that where the meeting of the minds is lacking, the contract becomes unenforceable, for while the Respondent had a mindset that he bought the Toyota bus on credit; the Appellant thought he gave out the bus on hire purchase. It was further submitted that no case was made for the parties other than those presented, so the cases of Ochonma v. Unosi (1965) N.ML.R. 321 and Chugbo v. Chugbo supra are inapplicable, and the admission of Exhibit A does not confer the existence of consensus ad idem on the contract of the parties.

On issue (2), the argument of the learned Counsel for D the Appellant is hinged on the content and the validly of Exhibit ‘A’, a document which he says is clear and unambiguous; and so it was the duty of the Court to enforce.

In the argument, the learned Counsel attacked an excerpt of E the judgment of the lower Court, which reads thus:-

“In the instant appeal, Exhibit A between the parties shows the Defendant did not advert his mind to the necessary clause of transfer of title to the purchaser upon completion of payment of installment in a hire purchase agreement and the Plaintiff believed that he bought the vehicle on a credit sale with installmental payment of the balance of sale price. This happened when the Plaintiff /Respondent paid N22, OOO-to the Defendant! Appellant out of the sale price ofN250 OOO for the liteace vehicle. The Respondent carried out repairs on the said vehicle because he believed the vehicle is his own.”