£410 with costs. The defendant company then appealed on the ground that the letter of their Manager does not constitute a waiver of the hire purchase agreement.

HELD:

The oral evidence of the plaintiff when taken with the manager's letter and the return of the machine to the company constitute a waiver by the company who cannot now be heard to go back on their word.

Appeal dismissed.

Taylor, C.J. of Lagos:-The plaintiff/respondent sued the defendant/appellant Company in the court below for the sum of £450 being general and special damages for the breach by the defendant Company of a contract entered into between the parties in 1962. Particulars of damage show that the sum of £410 is claimed as "deposit paid for purchase of machine" and £40 general damages.

On the 13th February 1963 an amended particulars of claim was filed in which the contract is shown as having been entered into during the year 1960 and an alternative claim to the above was added as follows:-

"Alternatively the sum of £450 sterling whereof the sum of £410 represent deposit/payment under a hire purchase agreement which the defendants are unlawfully detaining in spite of demands. £40 being general damages for the supply of goods which are grossly defective in consequence of which the said goods were returned to the defendants."

Judgment was entered by the learned Magistrate for the plaintiff for £410 and costs assessed at 20 guineas. The learned Magistrate held that the sawing machine bought by the plaintiff was defective from the time of delivery and that by exhibit "C" the defendant Company through their Manager had agreed to take back the machine and refund the plaintiff's deposit of £410. The defendant Company has appealed against the Judgment and the sole ground argued is that exhibit "C" could not be a waiver of the hire purchase agreement. No other point of law was argued, and indeed none other than that of Waiver is contained in the additional and original grounds of appeal.

Exhibit "C" reads as follows:-"From E.O. Winsala

2. 2. 62

Dear Alhaji,

I have been in your Sawmill during your absence to inform you that I have got a customer who is ready to buy the Small Sawmill you bought from N.T.D.C. The man is coming from Benin City. What I am trying to do is to collect the money from the man after purchasing it and return your own deposit to you. I hope you will agree with me in this sense and make all necessary arrangements for the availability of the machine.

Yours very faithfully,

(Sgd.) E.O. Winsala."

On the plaintiff's evidence accepted by the learned Magistrate, the defendant Company agreed to sell the machine and return the plaintiff's deposit and to this the plaintiff says he agreed, and took the machine to the defendant Company as per exhibit "B" which is dated the 3rd February, 1962, a day after the letter, exhibit "C" was written. Waiver is defined in Halsbury's Laws of England Vol. 14, 3rd Edition at 637, paragraph 1175 as:-

"Waiver is the abandonment of a right, and is either express or implied from conduct."

A little later on the learned author says in the same paragraph that:

"It seems that, in general, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration."

This in my view fully answers the point raised in this appeal. The oral evidence of the plaintiff when taken with exhibits "C" and "B" constitute a waiver by the defendant company who cannot now be heard to go back on their word.

In dismissing this appeal I want it to be made clear that the point as to whether exhibit "C" was the act of the defendant company or that of E.O. Winsala alone has not been taken on appeal though found against the defendant company by the learned Magistrate, and I express no opinion on it.

The appeal is dismissed and the judgment of the learned Magistrate is affirmed. The respondent will have his costs in this Court assessed at 15 guineas.