ALHAJI IBRAHIM YAKASSAI (PLAINTIFF/APPELLANT)

v.

INCAR MOTORS (NIG.) LTD (DEFENDANTS/RESPONDENTS)

(1975) All N.L.R. 287

Division: Supreme Court

Date of Judgment: 21st May, 1975

Case Number:

Before: Coker, Ibekwe and Irikefe, JJ.S.C.

APPEAL from the High Court, Kano.

The plaintiff/appellant sued in Kano High Court claiming against the defendants/ respondents the return of his vehicles seized by the defendants or their value being £5,000.12.4d and also claiming damages for detention of the vehicles limited to £3,000-0-0d.

In March 1968, defendants sold to the plaintiff a Fiat truck and a trailer, after he had paid several sums of money as deposit leaving a balance to pay.

In October 1969, the vehicle and the trailer were taken to defendants' workshop in Kano for repairs, whereupon defendants seized the vehicle because full payment had not been made by plaintiff. Plaintiff contended that the transaction on the vehicle was an outright sale between himself and the defendants, hence they had no right to seize the vehicle.

Conversely defendants contended that the transaction was a hire-purchase agreement, but no hire-purchase agreement was tendered in evidence at the trial. Strangely enough the learned trial Judge concluded that the transaction between the parties amounted to a conditional sale-an issue never raised on the pleadings and which was never canvassed by either party in the court below and thereby dismissed the plaintiff's claim.

On appeal to the Supreme Court,

HELD:

(1)     that the trial Court erred in basing its decision on an issue which was never raised on the pleadings and in respect of which no evidence was adduced at the trial.

(2)     that judging from the pleadings and the facts, it is clear that the transaction between the parties was an outright sale.

(3)     that in the circumstances, it was not open to the defendants to seize the vehicle as they had done. Their remedy would be to enforce payment of the instalments by action in court.

(4)     that it would be otherwise if the defendants had been able to establish that the parties did in law enter into a hire-purchase agreement.

PER CURIAM:

In appropriate cases which involve difficult questions of law and are likely to be taken to appeal it is always desirable that the trial Judge whether or not he is specifically requested by Counsel to do so, should assess the damages provisionally, if his decision is adverse to the plaintiff. Failure to do so where the appeal succeeds frequently results in unnecessary further expense to the parties, in view of the fact that the appeal court, would in those circumstances be obliged to remit the case back to the court below for the assessment of such damages.

Appeal allowed. Case sent back to trial Judge for re-assessment of damages.

Cases referred to:

Kofi v. Mensah 1 W.A.C.A. 76

Thompson v. Veale (1896) 74 L.T. 130

APPEAL from the High Court, Kano.

SUIT NO. S.C. 443/74

Mr E. Lewis Thomas for the Appellant.

Mr J. B. Majiyagbe for the Respondents.

IBEKWE, J.S.C. (Delivering the Judgment of the court)- This is an appeal from the decision of Wali, Ag. J., as he then was. The plaintiff's claims in the court below are as follows:-

"The defendants detain and have refused to deliver to the plaintiff the plaintiff's goods, that is to say Fiat Lorry Registration No. KN. 1975 and a Trailer Registration No. KN 2389 and the defendants hereby converted the same to his own use and wrongly deprived the plaintiff of the said goods.

Wherefore the plaintiff claims:-

(1)     The return of the said vehicles or their value being      £5,000: 12: 4d

(2)     Damages for detention of the said vehicles limited to     3,000: 0: 0d

                                         £8,000: 12: 4d

Pleadings were ordered and filed. At the trial, the plaintiff called two witnesses in support of his claim The defendants called four witnesses, but no Hire Purchase Agreement was admitted in evidence.

It is relevant to observe here that at the close of the case for the parties, the learned trial Judge granted a curious application for an amendment of the Statement of Defence which was made by the defendants. But as we are not called upon to decide this particular point on this appeal, we shall refrain from going into the matter in detail. We simply observe that the learned trial Judge should not have granted the said application in the particular circumstances of this case. It seems to us however, not that the procedural irregularity which had occurred does not, in any way, affect the merit of this appeal; and we therefore, take the view that it is unnecessary to belabour the point.

After hearing evidence from both sides, the learned trial Judge adjourned the case for judgment. In a considered judgment delivered on 13th October, 1972, Wali, Ag. J., as he then was, after reviewing all the evidence before him, reached the conclusion that the transaction between the plaintiff and the defendants was a conditional sale, and that the plaintiff had acted in violation of the conditions of the sale, i.e. instalmental payments. The learned trial Judge therefore, dismissed the plaintiff's claim.

Dissatisfied with the decision of the learned trial Judge, the plaintiff appealed to the Supreme Court on the following grounds:-

"(1)    The learned trial Judge misdirected himself by confusing contract of "Sale" with "agreement for sale" when he said that the remedy open to the plaintiff/appellant was only a personal action and not for detinue and conversion.

(2)     The learned trial Judge was wrong when in his judgment he stated that the sale of the vehicle, the subject matter of the action, was a conditional sale, a defence not pleaded by the defence.

(3)     The learned trial Judge having found that the sale of the motor vehicle the subject matter of the action was not under a Hire Purchase Agreement was wrong to have referred in his judgment to conditions applicable to Hire Purchase transactions, and so found against the plaintiff/appellant for non-compliance with these conditions."

The facts of this case which are not in dispute for the purposes of this appeal are as set out in paragraphs 2, 3 and 4 of the plaintiff's Statement of Claim, as follows:-

"2.     As far back as December 1967 the plaintiff approached the defendants for the purchase of a Fiat Lorry and a Trailer.

3.      On 29-12-67 the plaintiff paid an initial deposit of £200 towards the purchase of the vehicles.

4.      The plaintiff kept on paying various sums of money as deposit towards the purchase of the vehicles until the vehicles were delivered to the plaintiff sometime in March 1968."

These paragraphs of the Statement of Claim were admitted in paragraph 2 of the Statement of Defence which is set out as follows:-

"2.     Contents of paragraphs 2, 3 and 4 of the Statement of Claim are not denied save that the Incar (Nigeria) Limited would aver that it regularised its dealings with the plaintiff by a hire purchase agreement dated 16th March, 1968."

One other fact which is not in dispute in this case is that in October 1969, the said vehicle together with the trailer was sent by the plaintiff to the defendants' workshop at Ibadan for repairs and was later taken to the defendants' workshop at Kano. The defendants took advantage of it to effect a seizure of the vehicle on the grounds that the plaintiff had failed to pay up the remaining instalments for the vehicle.

As could be seen, therefore, from the pleadings and the evidence led at the trial, the only issue before the learned trial Judge in the court below was as to whether or not the defendants had the right to seize the vehicle in question. And in determining that issue, it seems to us that the learned trial Judge was called upon to resolve a very narrow issue as to whether the transaction between the parties amounted either to an outright sale or a hire purchase agreement was contended by the plaintiff and the defendants respectively.

Arguing the appeal before us, Mr Lewis Thomas, learned Counsel for the appellants submitted that the learned trial Judge erred in finding that the transaction between the plaintiff and the defendants amounted to a contract of conditional sale, an issue which was never raised on the pleadings, and which was never canvassed by either of the parties.

With good grace, Mr Majiyagbe, learned Counsel for the respondents conceded the point that the learned trial Judge erred in importing into his judgment the issue of conditional sale which was never raised on the pleadings, and at the trial. Furthermore, learned Counsel for the respondents also conceded that the defence did not succeed in establishing the issue of Hire Purchase Agreement upon which it had relied in the court below. Mr Majiyagbe then proceeded to argue that even if the transaction were a credit sale, that at the time the vehicle was seized by the defendants the property in the vehicle had not passed to the plaintiff. In support of his contention, learned Counsel for the respondents referred us to a statement of the law in Chitty on Contracts, 23rd Edition, Volume 2, article 1457 which is as follows:-

"A credit-sale agreement is an agreement for the sale of goods under which the purchase price is payable by five or more instalments, the property in the goods passing to the buyer at the time when the agreement is made."

It is enough to observe here that the passage in question does not, in any way, help the respondent's case.

On his part, Mr Lewis Thomas, learned Counsel for the appellant relied on the case of Kofi v. Mensah 1 W.A.C.A. 76 in which their Lordships of the West African Court of Appeal held that when an outright sale of goods takes place and the purchaser makes default in paying the agreed instalments, the seller has no right to retake the goods, even though the purchaser in his contract has agreed to take that course.

We agree with the learned Counsel for the parties in this case that the learned trial Judge erred on deciding the case on an issue which was never raised on the pleadings. The law is that in all civil matters where pleadings are filed, the court should only consider matters in respect of which issue have been joined by the parties in their pleadings. We think that unless the pleadings are amended it is not open to the court to introduce fresh issues which do not arise from the pleadings, as that course of action would tend to defeat the very purpose for which pleadings are required in civil cases. Accordingly, we take the view that the learned trial Judge was wrong in holding that the transaction between the parties in this case amounted to a conditional sale, a point which did not and could not have emerged from the pleadings.

We are in no doubt whatsoever that the facts of this case show clearly that the vehicle was sold outright by the defendants to the plaintiff. In other words, we take the view that the property in the vehicle had passed to the plaintiff ever before the defendants effected the seizure which is the subject matter of this action. That being so, we think that the respondents in the present case acted wrongly when they seized the vehicle as they did. The difference between an Outright Sale and a Hire Purchase Agreements is that in the former, the property in the vehicle passes to the purchaser as soon as the contract is entered into, whereas in Hire Purchase Agreement, the property in the vehicle still remains vested in the owner until payment is fully made. In other words, under a Hire Purchase Agreement it is always open to the owner of a vehicle to take possession of it on failure of the hirer to pay the instalments. In an outright sale, the seller's remedy lies in an action to recover the balance of payment owed by the purchaser.

We wish to draw attention to the fact that in Kofi v. Mensah supra the purchaser was in a less favourable position than the present appellant, in that in Kofi's case, there was an agreement by the purchaser to allow the lorry to be seized on failure of instalments. Nonetheless, their Lordships of the West African Court of Appeal held that such agreement was not binding on the purchaser. As the facts in Kofi's case are, in certain respects, similar to the facts of this case, we think that it is desirable to set out the relevant portion of the judgment in Kofi's case in full.

Delivering the judgment of the court at page 76 of the Report, Deane, C.J. The Gold Coast Colony said:-

"The question that had to be decided in this case in order to determine whether or not the defendant had the right to seize this lorry was whether the lorry had been sold outright by the defendant to the plaintiff, in which case the property in the lorry would vest in the plaintiff, or whether there was a hire purchase agreement under which the property would remain in the defendant, so that he could take possession of it on failure by the plaintiff to pay the instalments.

On the evidence we think there can be no doubt that an outright sale took place.

The defendant's witness Yaw Enin says 'I was present when the plaintiff agreed to purchase a lorry from the defendant'. That being the case, on the authority of Thompson v. Veale, (1896) 74 L.T. 130, the defendant 'would have no right to seize the lorry on failure of the plaintiff to pay the instalments, even although the Judge found that the plaintiff had agreed in his contract to that course, and his only remedy would be to enforce payment of the instalments by action in the courts'."

We ourselves agree with the principles of law as enunciated above by their Lordships. In the circumstances, we think that the decision of Wali, Ag. J. in suit No. K/45/1971 cannot stand. The appeal against it succeeds and it is hereby set aside. We however, are not in a position to award damages to the appellant in view of the fact that the learned trial Judge in dismissing the appellant's case did not attempt to assess provisionally, the damages payable to the plaintiff if he went on appeal and his appeal succeeded.

We think that there is yet need for us to draw attention to the kind of procedure which governs the assessment of damages for personal injuries by the court where the decision is adverse to the plaintiff. We take the view that the same practice should, as far as possible, be followed by the courts in other appropriate claims for damages. The rule is that in cases which involve difficult questions of the law and are likely to be taken to appeal, it is always desirable that the trial Judge, whether or not he is specifically requested by Counsel to do so, should assess the damages provisionally, if his decision is adverse to the plaintiff. Failure to do so frequently results in unnecessary further expense to the parties. See Harrison v. National Coal Board [1950] 1 K.B. 466.

In view of the fact that the court below did not make any provisional assessment of the damages, we have no alternative than to send this case back to the learned trial Judge with the following directives:-