3PLR – MADAM SARAFA AYOKE V. ALHAJI SULE BELLO

Published by Law Nigeria Admin at May 8, 2018

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR

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MADAM SARAFA AYOKE

V. ALHAJI SULE BELLO

COURT OF APPEAL, IBADAN DIVISION

CA/1/142/88

MONDAY, 2ND DECEMBER, 1991

3PLR/1991/55 (CA)

BEFORE THEIR LORDSHIPS

MOHAMMED MUSTAPHA ADEBAYO AKANBI. J.C.A.

EMANUEL OBIOMA OGWUEGBU, J.C.A.

ISA AYO SALAMI. J.C.A

REPRESENTATION

A. Agbaje, SAN (within him l. Laoye) – for the Appellant/Cross – respondent
Akinrinmade ESQ. – for the Respondent/Cross – appellant

MAIN ISSUES

COMMERCIAL LAW – CONTRACT – CREDIT SALES:- Applicable Statute to credit sales in contradistinction from ordinary sales of good – Whether it is the provisions of the Hire‑purchase Act Cap. 169 and not on the Sale of Goods Law Cap. 116 – Where Sections 2(2) (a) and 3(a) of the Hire Purchase Act Cap. 169 is applicable – Duty of court thereto

COMMERCIAL LAW – CREDIT SALES – HIRED PURCHASE AGREEMENT:- Rule in section 2(2) (a) of the Hire‑purchase Act that a witness to the agreement must not make or sign a note or memorandum of the agreement – Effect of failure thereto – Whether renders agreement incurably bad and unenforceable

COMMERCIAL LAW – CREDIT SALES – HIRED PURCHASE AGREEMENT:- Rule that agreement is void if some persons other than the hirer or buyer is to enter into the agreement on the buyer’s behalf

COMMERCIAL LAW – CREDIT SALES – HIRED PURCHASE AGREEMENT:- Where agreement is declared void for non-compliance with statute – Effect – Whether renders void any seizure of goods transferred pursuant to the agreement – Proper order for court to make

COMMERCIAL LAW – CONTRACT – HIRED PURCHASE TRANSACTIONS – Section 2(2) (a) of the Hire purchase Act. Cap. 169 Laws of the Federation of Nigeria, 1990 – What transactions constitute a hire purchase agreement

TRANSPORTATION AND LOGISTICS LAW:- Contract for acquisition of motor vehicle – Hired Purchase – Dispute arising therefrom – How treated

TRANPORTATION AND LOGISTICS LAW:- Transport business – Claim for damages for loss of earning – Proof of earnings by way of fares – Standard of proof – Relevant considerations

TRANPORTATION AND LOGISTICS LAW:- Evidence of vehicular speed distance covered with a period which appears not only impracticable but also impossible – Whether a question of fact which the court cannot answer one way or the other – Whether court cannot take judicial notice of distance

TORT AND PERSONAL INJURY:- Claim for damages – claim for loss of use – Whether is a claim in special damages which demands of strict proof.

ETHICS – LEGAL PRACTITIONER:- Need for counsel to comply with rules of court

ETHICS – LEGAL PRACTITIONER:- Briefs of argument When Court considers same not good enough – Where Counsel argue the grounds of appeal per se rather than arguing the issues formulated by them – Where Counsel treats the issues identified in the cross‑appellant’s brief as argument which has to be met by either criticising them or proffering arguments in rebuttal coupled with citation of some decided cases – Attitude of court thereto

CHILDREN AND WOMEN LAW:- Women in Business – Hire-purchase agreement – Woman whose agreement for purchase of vehicle was executed husband and which vehicle was wrongly repossessed by seller – How treated

PRACTICE AND PROCEDURE – APPEAL:– Ground of appeal which is not covered by any issue framed by the appellant/cross‑appellant – Where not also forming ground for any issue canvassed in the respondent/cross‑respondent’s brief

PRACTICE AND PROCEDURE – APPEAL:– Purpose of formulating issues from grounds of appeal

PRACTICE AND PROCEDURE – APPEAL:– Failure of respondent/cross-respondent to frame issue(s) for determination – Issues or questions for determination set out in the respondent/cross‑appellant’s brief – Proper treatment of – Whether cross-appellant is restricted to either adoption or rejection of it instead of rebuttal of same with arguments

PRACTICE AND PROCEDURE – APPEAL:– Issues for determination filed by a appellant/Cross-appellant – When can be adopted by respondent/cross-appellant – When proper for respondent/cross-appellant to file separate issue or issues for determination – Need for such to be issues of respondent/cross-appellant to be based on the the grounds of appeal filed by the appellant/cross‑appellant

PRACTICE AND PROCEDURE – COURT:- Duty of courts of trial to limit themselves strictly to the issues raised by the parties on their pleadings and cases mad eby parties before it – Failure thereto – When considered miscarriage of justice

PRACTICE AND PROCEDURE – COURT:- Duty of court when faced with an interpretation of a statute which is startling or manifestly absurd – Whether the mere fact that the results of a statute may he unjust or absurd does not entitle this court to refuse to give it effect – Where there are two different interpretations of the words in an Act – Whether court duty bound to adopt interpretation which is just, reasonable and sensible rather than that which is absurd

PRACTICE AND PROCEDURE – EVIDENCE:- Rule that trial judge is duty bound to consider every piece of evidence placed before it by weighing it against the background of the case before ascribing probative value to it – Where court ignores evidence by neither accepting nor rejecting it – Duty of appellate court thereto

PRACTICE AND PROCEDURE – EVIDENCE:- Rule that pleadings are no evidence and that a defendant is duty bound to call evidence to support their averments – Effect of failure to do so – whether deemed to be abandonement of defence

PRACTICE AND PROCEDURE – EVIDENCE:- Where a defendant neglects to lead evidence to support averments – Whether plaintiff is therefore entitled to judgment as a matter of course – Whether he court is still entitled, in even an undefended case, to be satisfied that the evidence adduced is credible and sufficient to sustain the claim

PRACTICE AND PROCEDURE – EVIDENCE:- Special damages – Burden of proving same strictly – Meaning – when deemed satisfied

PRACTICE AND PROCEDURE – EVIDENCE – Whether Pleadings are evidence – When there is deemed to be an abandonment of defence by the respondent – Duty of court in an undefended case – Burden of proving special damages – Judicial notice – Whether court can employ its personal knowledge in arriving at a determination

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER:- Finding of trial judge – Where not appealed against or set aside – Whether subsists as a valid judgment as against the parties to it

INTERPRETATION OF STATUTE:- Sections 2(2) (a) and 3(a) of the Hire Purchase Act Cap. 169 – Interpretation

INTERPRETATION OF STATUTE:– Principles for interpreting a statutory provision which only interpretation leads to manifestly absurd outcomes – Rule where there are two interpretation of same provisions leads to two interpretation with only one tending to manifesting absurdity

WORDS AND PHRASES:– “Misdirection” – What constitutes

MAIN JUDGEMENT

SALAMI, J.C.A. (Delivering the Leading Judgment):

In the High Court of Justice of Oyo State of Nigeria, in the Ibadan Judicial Division, holden at Ibadan and in Suit No. 1/317/83 the plaintiff claimed against the defendant as per her writ of summons thus:‑

An order directing the defendant to release to the plaintiff, the plaintiff’s vehicle Peugeot 504 station wagon Registered No. OY 4289 AE unlawfully seized and detained by the defendant on the 12^th day of April, 1982 or in the alternative the market value of the said vehicle at the date of seizure which is N8,500.00.
The sum of N 130.00 per day until delivery of the vehicle.
The plaintiff also claim N5,000.00 as general damages for the unlawful detention.
Interest at the rate of 10% per annum from date of judgment on the total amount awarded.”

Pleadings were ordered, filed and duly exchanged. Pleadings were settled at statement of claim, amended statement of defence and reply to amended statement of defence. The plaintiff’s claim that went to trial is as set out above; her claim in the statement of claim having recited the claim as per her writ of summons verbatim ad literatim. After the testimony of witnesses, parties and addresses by counsel on behalf of both parties the learned trial judge after review and evaluation of evidence concluded his judgment as follows:

“As there is nothing before the court to show that the defendant could repossess the goods in this case before he repossessed it, its repossession was unlawful by virtue of section 43(1) of the Law:

He in law has to return it or pay its value to the plaintiff having detained it unlawfully. The defendant in my judgment is to return the vehicle in his possession to the plaintiff who had paid a substantial part of its price and was in possession before it was seized from her by the defendant.

The plaintiff has said she used to use the vehicle to carry some passengers but on the evidence before the court, the vehicle was defective and not working when it was repossessed. The evidence in support of fares that used to be collected is tenuous. I cannot in the circumstance award her anything for the loss of use of the vehicle. There must be evidence of reasonable use for that head of claim to succeed; but she … I do not think this is a case where interest should be awarded on the judgment debt. I award her nothing as interest on the 4th head of claim. The 1st and 3rd heads of claim therefore succeed. There will be judgment in her favour accordingly. The 2nd and 4th heads of her claim are dismissed accordingly.”

Both parties were dissatisfied with the judgment of the learned trial judge and have respectively appealed and cross‑appealed to this Court. The plaintiff is unhappy with the part of the decision of the court below refusing her claim for loss of use while the defendant is aggrieved by the order of the court setting aside the seizure of the vehicle and ordering the restoration of the same to the plaintiff. The plaintiff filed two grounds of appeal while the defendant filed one original and three additional grounds of appeal.

The two grounds of appeal filed by the plaintiff read as follows:

“1 The learned trial Judge erred in law by holding that the plaintiff did not establish that the vehicle was working and thereby refusing to award any special damages.

PARTICULARS

There was uncontradicted evidence for the plaintiff that prior to the seizure, the vehicle was repaired and driven from Kano to Ibadan and parked at the place where it was seized on the day it arrived in Ibadan.

The learned Trial Judge erred in law in not accepting the evidence from the plaintiff as sufficient proof of the earnings of the plaintiff from use of the vehicle.

PARTICULARS

The evidence as to the fares collected by the plaintiff for the use of the vehicle is uncontradicted.
There is no basis in law and in fact for the finding of the learned Trial Judge that the fares that used to be collected is tenuous and as such was wrong in rejecting the said evidence.”

The grounds of appeal filed on behalf of the defendant are reproduced hereunder

“1. The learned trial judge erred in law in giving judgment in favour of the plaintiff inspite of the fact that the plaintiff abandoned, the basis of her claim which was founded on a credit sale agreement of 9^th December, 1980 between her and the defendant. The plaintiff is not entitled to judgment by relying on her own misdeed to wit failure to sign the credit sale agreement dated 9/12/80 to avoid liability.

The learned trial Judge erred in law by holding that the transaction between the parties to this action was not covered by the Hire Purchase Act, 1965 and its subsequent amendments and that rather the Sale of Goods Law, Cap. 116, Laws of Oyo State, 1978 applied without due consideration of the proviso to Section 2(2) (d) of the Hire Purchase Act, 1965.

PARTICULARS OF ERROR

The learned trial judge erred in law when he held simply as follows:‑

“The transaction here cannot thus be a Credit Sale or Hire Purchase Sale under the Hire Purchase Act of 1965 as amended in 1970”

without applying the proviso to Section 2(2) (d) of Hire Purchase Act, 1965 which states that even if parties to a Hire Purchase transaction failed to comply with the elementary provisions of Section 1(1) of the aforesaid Act, the Court if satisfied, can dispense with the requirements of Section 1(1) of it would be just and equitable to do so (as it is in the present case) and thereby came to a wrong conclusion.

The learned trial judge erred in law and misdirected himself on facts by refusing to give effect to the intention of the parties that the effect to the intention of the parties that the transaction was a Credit Sale governed by the Hire Purchase Act, 1965 and the 1970 amendment.

PARTICULARS OF ERROR

Both the pleadings of the plaintiff and the defendant, and evidence proffered by the plaintiff were to the effect that parties intended to initio that the transaction was a Credit Sale governed by the Hire Purchase Act, 1965 (as amended in 1970).

Exhibit “F” titled “Credit Sale Agreement” also indicated that the plaintiff’s husband, P 102, signed as the “Hire Purchaser”. Had the learned trial judge considered the effect of Exhibit ‘F’ and the intention of the parties enunciated in the case of: Osejo vs. Nwania (1971) 1 N.COM.L.R. 6 at 21‑22, he would have come to a rightful conclusion..

The learned trial judge erred in law and misdirected himself on facts that the defendant’s repossession of the vehicle was unlawful by virtue of Section 43(1) of the Sale of Goods Law and that the defendant has to return the vehicle or pay its value to the plaintiff.

PARTICULARS OF ERRORS AND MISDIRECTION

The application of Section 43(1) of the Sale of Goods Law, Cap. 116 Laws of Oyo State 1978 without due consideration of the effects of the proviso to section 2(2) (d) of Hire Purchase Act, 1965, and the provisions of Section 9(5) of the Act, 1970 affected the reasoning of the learned trial judge when he held as follows:

“As I have held that the transaction in this case is not covered by the Hire Purchase Act, and Section 9(5) of the Act cannot apply, it follows there is no power in the defendant to seize the vehicle which on the evidence before me was sold to the plaintiff, though its price was to be paid instalmentally.”

If the learned trial judge had considered that the Sale of Goods Law did not apply to this transaction, he would have held that the transaction was regulated by the Hire Purchase Act and therefore the seizure was not unlawful.”

In compliance with the rules of practice in this Court the parties filed their respective briefs of argument. The plaintiff filed appellant’s brief as well as cross‑ respondent’s brief while the defendant filed a single document taking care of both the respondent’s and cross‑appellant’s briefs. Issues were formulated in each of the briefs. The issue identified in the appellant’s brief reads as follows:

“Whether the learned trial judge was right in dismissing the 2^nd head of claim for the sum of N 130.00 (one hundred and thirty naira) per day from the date of seizure until delivery of the vehicle when the defendant did not join issue with the plaintiff and the evidence given by the appellant remains uncontradicted, unchallenged and unrebutted.”

The issues framed in the respondent’s/cross‑appellant’s brief are reproduced immediately below ‑

“(a) whether it was the appellant or her husband (p.w.2) who was the actual buyer of the vehicle;

(b) whether the nature of the transaction was governed by the Hire Purchase Act 1965 or the Sale of Goods Law, 1978;

(c) whether the application of the Sale of Goods Law by the learned trial judge met the justice of the case rather than defeating the intention of the parties to the transaction;

(d) whether without the respondent/cross‑appellant calling evidence, the appellant was entitled to leg 2 of her claim without proof of same.”

The formulation of issues in the cross‑respondent’s brief is set out immediately hereunder ‑

“(a) With respect to issue (a), the issue was not argued and is therefore abandoned. Furthermore, the issue is immaterial having regard to section 2(2) (a) of Hire Purchase Act which allows the agreement to be signed by agents.

(a) Similarly issue (b) is immaterial having regard to the findings of the learned trial judge that sections 2(2) (a) and 3(a) of the Hire Purchase Act were not complied with.

(d) Issue (d) should be answered in favour of the plaintiff/appellant on the ground that unchallenged evidence should be accepted by the court. See National Insurance Corporation of Nigeria v. Power Industrial Engineering Co.Ltd. 1986 1 S.C. 46(1986) 1 N.W.L.R. (Pt. 14) 1 citing with approval the case of Omoregbee v. Lawani (1980) 3 108 at page 117 where it was held that unexplained, uncontradicted and unchallenged evidence is entitled to full weight and value and court to act on it. See also Odulaja v. Haddad 1973 11 S.C. 357.”

Before I proceed to consider both appeals on their merits, I wish to make two observations on the briefs filed on behalf of both parties. The learned counsel for both parties after painstakingly formulating and setting out issues calling for determination in their respective briefs abandoned the issues and proceeded to argue the various grounds of appeal. The approach whereby the issues formulated are neglected in preference for the grounds of appeal is contrary to the modern trends in appellate courts and violates the relevant rules of the courts designed to facilitate expeditious disposal of appeals. The issues are framed to encompass one or more grounds of appeal and not to be at large. It is the issues so framed that are argued and not the grounds of appeal which are superceded by the formulations: Alhaji Chief A. Momodu & Others v. His Highness Alhaji A. C. Momoh & Anor. (1991)2 SCNJ 15; (1991) 1 N.W.L.R. (Pt. 169)608. This Court and the Supreme Court have written quite a considerable number of judgments on the principles governing the writing of briefs. But the large body of principles enunciated in those judgments seems complied with more in breach than in compliance.

Secondly, the learned counsel for the cross‑respondent in cross‑respondent’s brief failed to frame issue for determination. He treated the issues identified in the cross‑appellant’s brief as argument which has to be met and he did meet them by either criticising them or proffering arguments in rebuttal coupled with citation of some decided cases. The formulation of issues or questions for determination set out in the cross‑appellant’s brief, with respect to the learned Senior Counsel, is for either adoption or rejection. If he finds it adequate for resolution of all issues in controversy between the parties to the appeal he adopts them. In the alternative he is to identify issue or issues for determination crystalising the grounds of appeal filed by the cross‑appellant. In the circumstance of this case, it is presumed that the cross‑respondent has adopted the issues as formulated in the cross‑appeal. As a result, the cross‑appeal will be considered and determined on the cross‑appellant’s issues should I find those issues adequate for the just determination of the appeal.

Finally, the briefs of argument which were settled in 1988 about four years after the introduction of brief writing to this Court to say the least are not good enough. Counsel argued the grounds of appeal per se rather than arguing the issues laboriously formulated by them.

On the appeals, the appeal deals with award of damages while the cross appeal is challenging the avoidance of the seizure. Since the success of the cross or appeal necessarily disposes of the appeals, I am of the view that the cross appeal be dealt with first.

At the hearing of the cross‑appeal the learned counsel for the cross‑appellant adopted the cross‑appellant’s brief of argument and also made some speeches in elaboration therefor. The learned counsel for the cross‑respondent also adopted and relied on the cross‑respondent’s brief in addition to making some oral submissions in elaboration.

Ground 1 of the grounds of appeal is not covered by any issue framed by the cross‑appellant. Happily also the ground was not canvassed in the cross‑appellant’s brief. It, therefore, seems to me that the said ground is abandoned and it is hereby struck out.

Since the parties argued the grounds of appeal and not the issues identified as calling for determination I think it is convenient to consider the appeal under the various grounds of appeal convassed. The appellant argued grounds 2 and 3 together. The learned counsel for the cross‑appellant contended if the learned trial judge had considered the effect of the pleadings and the evidence adduced he would have come to the inevitable conclusion that the parties intended Hire Purchase Act to govern their transaction. He referred to the case of Osefo v. Nwania (1971)1 N. Corn. L.R. 421. The learned counsel for the cross‑appellant further submitted that conceeding for the sake of argument that even if Exhibit F failed to satisfy the requirements of Section 1(l) of the Hire Purchase Act, 1965 he ought to have resort to the proviso to section 2(2) (d) of the said Act and dispense with adherence to the strict provisions of s. 1(1). Counsel contended that it is the primary duty of the Court on interpreting a statute to find out the intention of the legislature from the wordings of the statute. He argued that the interpretation placed on the provision to s.2(2) (d) of the Hire Purchase Act 1965 by the trial judge was at variance with the intention of the legislature and thereby led to absurdity. He referred the Court to the following cases which apparently deal with interpretation of statute: Akinosho v. Enigbokan (1955)21 NLR 88; (1957) SCNLR 9 Onasile v. Sami & Anor. (1962) I All NLR 272; (1962) 1 S.C.N.L.R. 415 Balogun v. Salami (1963) 1 All NLR 129; (1963) 1 S.C.N.L.R. 229 and Ekeocha v Civil Service Commission of Imo State (1981) 1 NCLR 154.

In this connection, the learned counsel for the cross‑respondent contended in the cross‑respondent’s brief that notwithstanding the approach of the learned trial judge he arrived at right conclusion in the matter. He contended further that even if section 9(5) of the Hire Purchase Act 1965 is invoked it will not be capable of overriding the power of the Court to restrict the owner’s right to repossess if the formalities provided for under s.2(2) of the Act are not complied with. The learned Senior Counsel submitted that compliance with s. 2(2) (c) of the Act is mandatory and argued that if the provisions of the paragraph is applied the transaction ceased to be either Hire Purchase or credit sale and the learned trial judge was right in applying the provisions of the Sales of Goods Act and in holding as he did that there is no power in the defendant to seize the vehicle.

It is necessary, at this stage, to review the case put up by the parties at the court below on the nature of the transaction. In this connection the cross‑ respondent pleaded in paragraphs 3,4,5 and 6 of her statement of claim as follows:

“3. Sometime in December, 1980, the plaintiff approached the defendant for the purchase of one brand new puegeot 504 station wagon, valued at N9,600 on credit sales terms, with registration No. OY 4289 AE.

The defendant agreed with the plaintiff that the plaintiff shall make a part payment of N4,000.00 and liquidate the balance by 10 equal monthly instalments of N560.00 commencing from 14th day of January, 1981 and subsequent instalments to be paid on the 14^th day of each month.
The plaintiff was given a document titled ‘CREDIT SALES AGREEMENT” dated 9th day of December, 1980 and a personal card dated 14th day of January, 1981 showing the subsequent instalments paid by the plaintiff.
The plaintiff had paid the sum of N8,960.00 out of the purchase price of N9,600.00 leaving a balance of N640.00 each instalment paid was evidenced by a receipt and also entered in the personal card.”

The cross‑appellant joined issue with the cross‑respondent in paragraphs 1, 2, 4, 5 and 6 in his amended statement of defence. They are ‑

“1. The Defendant specifically denies paragraphs 1 and 6 of the statement of claim and will contend at trial that the plaintiff is unknown to him and never had any transaction with her in respect of the vehicle OY 4239 AE. The defendant will rely on the said document titled “CREDIT SALES AGREEMENT” dated 9/12/80.

The defendant admits facts contained in paragraphs 2, 3, 4, 5 and 15 of the statement of claim but contends that it was one Sarafa Ayoke a man who entered into the transaction with him and not the plaintiff.
The Hirer after taking delivery of the vehicle was making irregular payment in breach of the terms of the agreement. The defendant complained about this but to no avail. The defendant rely on the receipts issued at trial.
The Hirer took away the vehicle to the Northern States and avoided Oyo State to evade seizure of same. The defendant employed the services of a seizure at a cost of N200.00 to repossess the vehicle.
With regards to paragraph 6 of the statement of claim, the defendant will contend that the sum of N3,700.00 excluding seizure’s charges is still outstanding on the vehicle.”

On the issue joined the cross‑appellant neither gave nor called witnesses in support of his defence. But he extracted evidence in his own defence through cross‑examination of some of the witnesses for the plaintiff/cross‑respondent. The plaintiff/cross‑respondent testified in support of her claim and also called two witnesses, the brother of the cross‑appellant and her own husband. On the pleadings the following facts were not put in issue because of the cross‑appellant’s express admission in his amended statement of claim ‑

(a) that the transaction was to be a credit sale;

(b) that there was immediate payment of N4,000.00 which was followed by some monthly instalmental payments, and

(a) that after the purchase the cross‑appellant issued exhibit F. the Credit Sales Agreement.

These facts were admitted as per paragraphs 2 and 4 of the amended statement. of defence by the cross‑appellant. They, therefore, no longer call for proof by the opposing party. See Onobruchere & Anor. v. Esegine (1986) 2 S.C. 385, 397; (1986) 1 NWLR (Pt. 19) 799 and Chi ef Okparaeke of Ndikaeme & Ors. v Ohidike Eghuonu & Ors. (1941) 7 WACA 53 and Section 75 of the Evidence Act Cap. 112 Laws of the Federation of Nigeria, 1990.

In addition to these admissions which relieve the cross‑respondent of the burden of proof of them, she, as plaintiff, testified thus

“I am a trader. I know the defendant bought a vehicle from the defendant. It is a station wagon ‑ peugeot 504 for N9,600.00. On the day of purchase of the vehicle, I paid N4,000.00 to the defendant. I was given receipts for the payments made to the defendant and to his brother ‑ Adegoke. I have the receipts in court and produce them.”

Under cross‑examination she testified thus

“I was given a copy of the agreement between the defendant and me by the defendant my husband signed the agreement after the sale. The name of my husband is Asafa. My Lawyer ‑ has the copy of the agreement given to me. I identify this document as the card ‑ which was given to me by the defendant …

My husband signed the agreement because on the day the purchase was made, the vehicle was handed over to us through Adegoke my husband’ s friend but it was subsequently that my husband went for the agreement. I was present when the deposit was made.” (Italics mine)

W. 1 Alhaji Olagoke lyanda, in this regard testified as follows ‑

“I arrange a transaction between the parties. The transaction involved a vehicle valued at N9,600.00 (nine thousand six hundred naira). The plaintiff made a deposit of N4,000.00 The defendant was to pay the balance by instalments in the equal instalments. The first instalment was given to me. I gave receipt to the plaintiff for the payment made to me. I identify this receipt as the receipt I issued to the plaintiff …

I took the deposit the plaintiffs paid to the vehicle owner and paid the deposit to his clerk ‑ Tiamiyu. After paying the money to the clerk, he gave me a receipt which I have in court and produce …

Under cross‑examination 1st plaintiff’s witness testified thus ‑

“The first agreement was signed by me as a witness. it is the original of exhibit F. The plaintiff’s husband signed the original of exhibit F. The husband of the plaintiff and I paid the deposit to the defendant for every instalment paid I was issued a receipt by the defendant.” (Italics mine)

The husband of the plaintiff/cross‑respondent is Asafa Aremu and second cross‑respondent’s witness whose testimony runs thus ‑

“I am a professional motor driver. I know the plaintiff she is my wife I know the defendant.

I know the first plaintiff witness. When my wife informed me that she wanted to buy a vehicle, I took her to the 1^st plaintiff witness who later took the plaintiff to the defendant. I went in company of the plaintiff to the first plaintiff witness. The plaintiff and the first plaintiff’s witness later left the latter’s house whilst I left for my business.

I know about exhibit F, it is in respect of the deposit my wife made with the defendant; my wife was not in the country when the original of the document was prepared. That was why I signed the original on her behalf. She paid a deposit of N4,000.00 on the transaction. The balance was to be paid in ten instalments of N560.00.” (Italics mine)

The second plaintiff witness confirmed under cross‑examination that he signed exhibit F apparently because he had been dealing with the defendant in respect of the vehicle in question from the beginning. He also agreed that exhibit E and the original of exhibit F were handed over to him from the beginning of the transaction. Exhibit F incidentally is the photographic copy of the credit sale agreement which was alleged lost.

The finding of the trial judge in so far as it is relevant to the issue raised in the cross‑appeal reads as follows:

“As I have held that the transaction in this case is not covered by the Hire Purchase Act and section 9(5) of the Act cannot apply, it follows there is no power in the defendant to seize the vehicle which on the evidence before me was sold to the plaintiff, though its price was to be instalmentally. The sale can therefore he considered a sale under the Sale of Goods Law, Cap. 116 Laws of the State even though the whole price has not been paid, see section 39(1) of the Law the provisions of which are ipssima verha with those of the former Law of Western Nigeria.

On the evidence before the court, the provisions of sections 39(1) (a), 40, 41 and 43 of the Sale of Goods Law will therefore apply.” (Italics mine)

It is crystal clear from the pleadings and the evidence led by the parties that they intended the transaction to be a credit sale which is governed by the provisions of the Hire‑Purchase Act Cap. 169 Laws of the Federation of Nigeria, 1990. No where did the parties aver in their respective pleadings that their relationship is regulated by the Sale of Goods Law Cap. 116 Laws of Oyo State of Nigeria, 1978, imported into the case by trial Judge. Nor was there an iota of evidence led to demonstrate that the parties intended the application of the provisions of the Sales of Goods Law Cap. 116 to their business intercourse. I, therefore, disagree with the submission of the learned Senior Advocate of Nigeria in the cross‑respondent’s brief to the effect that the learned trial judge rightly treated the transaction as if it were ordinary sale of goods.

It is settled by a long line of decided cases that courts of trial are to limit themselves strictly to the issues raised by the parties on their pleadings; to do otherwise, might well result in denial of justice to one or the other of the two contending parties. See African Continental Seaways Ltd. v. Nigerian Dredging Roads and General Works Ltd. (1977) 5 SC 235; Nigeria Investment and Properties Company Ltd. & Anor. v British Bank for West Africa (1962)1 All NLR (Pt. 4) 556; (1962) 2 SCNLR324 Kalio & Ors. v Kalio (1975) 2 S.C. 15; Nigeria Investment and Properties Company Ltd. v Thompson Organisation & Ors. (1969) I All N.L.R. 138; George & Ors. v Dominion FlourMills Ltd. (1963)1 All N.L.R. 71; (1963) I SCNLR 117 Metalimpex v A.G. Leventis & Co. Ltd. (1976) 2 S.C. 91 and Odiase & Anor. v Agho & Ors. (1972) 1 All N.L.R. (Pt. 1)170 at 176 where the Supreme Court agreed with the principle laid down by the House of Lords as follows:‑

“Indeed we would agree in principle with the general proposition enunciated by Lord Wrenbury in Wilson v United Counties Bank Ltd. (1920) A.C. 102 at 143 he said: “It is certainly a salutory principle that a court of justice should confine itself to adjudicating upon the questions raised by the parties litigant to the exclusion of other questions which they do not advance.”

See also statement by the learned authors of Bullen and Leake on Precedents of Pleading 12th Edition at page 8.

In other words it is not competent of a court to make a case of his own or to formulate his own case from the impression it forms of the evidence and then proceed to give a decision thereon contrary to the case of the parties before it. See Adeniji v Ademji ( 1972)1 All N.L.R. (Pt. 1)298; Ochonma v linosi (1965) N.M.L.R. 321 and Collymore v Attorney General of Trinidad and Tobago (1970) A.C. 538, 551. Since the case put up or question raised by the parties is that of credit sale and not ordinary sales of good as found by the learned trial judge the determination of the appeal turns on the provisions of the Hire‑purchase Act Cap. 169 and not on the Sale of Goods Law Cap. 116. In considering the transaction under the Hire‑ purchase Act the learned trial judge then found as follows:‑

“The defendant has pleaded in his paragraph 4 that a man not a woman signed the agreement. The defence has offered no evidence. The plaintiff has pleaded and given evidence that she was the buyer and that her husband, her second witness signed the agreement on her behalf. Her husband, her second witness signed the agreement on her behalf. Her Husband also gave evidence in support of the pleadings and assertion. There is no controverting evidence from the defence. I accept that the plaintiff was the buyer of the vehicle from the defendant and that her husband signed exhibit F ‑ the agreement on her behalf although he did not indicate on the paper that he was signing on behalf of any person. Exhibit F is to be regarded a worthless paper as the real buyer is expected to sign the credit sale agreement or hire purchase agreement by virtue of section 2(2) (a) and 3(a) of the Hire Purchase Act Cap. 169.”

The finding of the learned trial judge set out above has not been appealed against not to talk of its being set aside. It, therefore, subsists. Having found that the provisions of sections 2(2) (a) and 3(a) of the Hire Purchase Act Cap. 169 are applicable to the transaction the learned trial judge was duty bound to confine the determination of the action to the provisions of the Hire‑Purchase Act Cap. 169; mainly because it is correct exposition of the case set up by the parties in their pleadings. It is the case raised in the pleadings of the parties that the court has to decide. The learned trial judge cannot find escape route or solace in the provisions of the Sale of Goods Law Cap. 116, a Law, that was not pleaded by either party. The party who believed that it would assist its case ought to have put the said enactment in issue. The case of Collymore v. Attorney‑General (supra) is in point in that case at page 551 of the report Lord Devlin was quoted as having said in the case of Russel v. Duke of Norfolk (1949)65 T.L.R. 231, 240 that ‑

“Where the judge sits as an arbiter between two parties, he need consider only what they put before him. If one or other omits something material and suffers from the omission he must blame himself and not the judge …

Where the judge… “

The party who thought that invoking the provisions of Sale of Goods Law or of any other statute or common law and failed to bring the same before the court for adjudication has itself to blame if it thereby suffers from the omission and not the court.

Section 2(2) (a) and (3) (a) of the Hire‑purchase Act Cap. 169 Laws of the Federation of Nigeria, 1990 provides thus ‑

“(2) An owner shall not be entitled to enforce a hire‑purchase agreement or any contract of guarantee relating to the agreement or any right to recover the goods from the hirer, and no security given by the hirer in respect of money payable under the hire‑purchase agreement or given by a guarantor in respect of money payable under a contract guarantee relating to the agreement shall be enforceable against the hirer or guarantor, unless the requirement specified in subsection (1) of this section has been complied with and ‑

(a) a note or memorandum of agreement is made and signed by the hirer and by or on behalf of all other parties to the agreement; and

(b) the note or memorandum contains ‑

(i) a statement of the hire‑purchase price and of the cash price of the goods to which the instalments by which the hire‑purchase price is to be paid and of the date or the mode of determining the date, upon which each instalment is payable; and

(ii) a statement of the true rate of interest calculated in such manner as the Minister may by regulations published in the Federal Gazette prescribe; and

(c) the note or memorandum contains a notice, which is at least as prominent as the rest of the contents of the Note of memorandum, in the terms provided by the Schedule Act and

(d) a copy of the note or memorandum is delivered or sent to the hirer within fourteen days of the making of the agreement;

Provided that, if the court is satisfied in any action that a failure to comply with the requirement specified in subsection (1) of this section or any requirement specified in paragraph (b), (c) or (d) of this subsection has not prejudiced the hirer, and that it would be just and equitable to dispense with the requirement, the court may, subject to any conditions that it thinks fit to impose, dispense with that requirement for the purpose of the action.

(3) The provisions of this section shall apply to credit‑sale agreements as they apply to hire‑purchase agreements, but as if ‑

(a) for any reference to the owner, hirer or hire‑purchase price there were substituted respectively a reference to the seller, buyer and total purchase price, and

(b) paragraph (c) of subsection (2) of this section, and the reference to that paragraph in the proviso to the subsection, were omitted.”

This takes us to the construction to be placed on the provisions of the Hire Court purchase Act set out above. In this connection the learned counsel for cross – appellant contended that the construction placed on section 2(2) (d) of the Act was at variance with the intention of the legislature and led to manifest absurdity. I do not agree with the learned counsel for the cross‑appellant that an interpretation of a statute is at variance with the intendment of the legislature merely because it is startling or manifestly absurd. In Holmes v Bradfield Rural District Council

(1949) 1 All E.R. 381 at 384 it was held thus ‑

“The mere fact that the results of a statute may he unjust or absurd does not entitled this court to refuse to give it effect but, if there are two different interpretations of the words in an Act, the court will adopt that which is just, reasonable and sensible rather than that which is none of those things.” (Italics Mine)

See also Fry v Inland Revenue Commissioner (1958) 3 All E.R. 90 at 94 where Romer, J., quoting Lord Reid in Coutts & Co. v Inland Revenue Commissioner (1953) 1 All E.R. 418,421 said ‑

“In general, if it is alleged that a statutory provision brings about a result which is so startling one looks for some other possible meaning of the statute which will avoid such a result, because there is some presumption that Parliament does not intend its legislation to produce highly inequitable results.” (italics mine)

The court begins with the intention of giving the statute effect in accordance with its expressed intention. It is immaterial whether the court is said to place a strict or liberal construction upon a document where the words are plain and admit only of one meaning. In such a case the proper meaning must be placed on the words whatever the effect. In Mobil Oil (Nigeria) Limited v Federal Board of inland Revenue (1977) 3 S.C. 53 at 74 the Supreme Court said-

“The general rule for construing a sentence is where the words of a statute are clear the court shall give effect to their literal meaning. It is only when the literal meaning may result in ambiguity or injustice that the court may seek internal aid within the body of the statute itself or external aid or statutes in pari matenia in order to resolve the ambiguity or avoid doing injustice: Olalere Ohadara & others v The President ibadan West District Council Grade B ‑ Customary Court (1964) 1 All N.L.R. 336 and Claude Nahharn v George Nahham (1967) All N.L.R. 47.”

See also Nigerian Ports Authonity v AliAkar & Sons (1965)1 All N.L.R. 259 at 263 where it was said that

“In the construction of a statute it is necessary that the words used by the statute should be considered and that the consideration should not be based on any assumption that the statue is merely declaratory of a particular state of things or any existing law.”

The evidence which was tendered and accepted by the trial court is to the effect that the hirer, the cross‑respondent in this appeal, did not sign the credit sales agreement personally contrary to the express provision of section 2(2) (a) of the Hire‑Purchase Act Cap. 169. The cross‑appellant pleaded in paragraph 4 of the amended statement of defence that a man, and not a woman bought the vehicle. He led no evidence in support of this averment. The cross‑respondent pleaded and led evidence in support of the facts pleaded that she bought the vehicle. Her 1^st and 2^nd witnesses who are respectively relation of the cross‑appellant and the husband of the cross‑respondent were one with the cross‑respondent in testifying that the cross‑respondent’s husband who is not the buyer signed the agreement. The act of the cross‑respondent’s 2nd witness violates the provisions of section 2(2) (a) of the Hire‑purchase Act. While paragraph (a) of subsection (2) of section 2 approves or permits an agent to sign the agreement on behalf of other parties it insists on the hirer appending his or her signature thereto. At the risk of being repetitive paragraph (a) of section 2(2) is repeated immediately hereunder ‑

“(a) a note or memorandum of the agreement is made and signed by the hirer and by or on behalf of all other parties to the agreement, and;” (italics mine)

Perhaps the words “all other parties” are with reference to any party other than the buyer or hirer.

Is there any redeeming feature for the note or memorandum of the credit sale agreement Exhibit F which is not made nor signed by the actual hirer of the vehicle?

I think there is none. The formal requirements can be dispensed with by the court if it is satisfied, in any action that the failure to comply with any of the requirements has not prejudiced the buyer or hirer and also that it would not be unjust and inequitable to dispense with them but signature of the agreement by the hirer, being a requirement specified in section 2(2) (a) of the Act cannot be dispensed with. See Proviso to section 2(2) of the Hire‑Purchase Act, Cap. 169 which is already set out above. The purpose of making that paragraph mandatory is to protect the buyer or hirer who must know and understand what he is agreeing to. This intendment of the legislature will become elusory or illusory if some persons other than the hirer or buyer is to enter into the agreement on the buyer’s behalf as in this case when the buyer was abroad. The provision of section 2 of the Act particularly paragraph 2(2) (a) thereof should be given literal interpretation.

I, therefore, agree with the learned trial judge that exhibit F, the note and memorandum of credit sale, is worthless. The credit sale agreement is, therefore, unenforceable between the cross‑appellant and the cross‑respondent. Section 2 of the English Hire‑purchase Act, 1938 which is in pari materia with our own section 2 was considered in the case of Eastern Distributors v Goldring (1957)2 All E.R. 525. It is a decision of the English Court of Appeal. Devlin, J., while delivering the judgment of the court stated as follows at page 532 and 533 of the report ‑

“An inquiry into this defence shows that it involves a consideration of the Hire‑Purchase Act, 1938, and it is convenient to consider first of all the remaining defence which is based more directly on the provisions of that Act. Section 2 of the Act lays down certain requirements which have to he complied with, and provides that if they are not, the hire‑purchase company will not be entitled to enforce the agreement or any right to recover the goods from the hirer. One of these requirements (by s.2(2) (a)) is that ‑

“a note or memorandum of the agreement is made and signed by the hirer and by or on behalf of all other parties to the agreement.”

It is contended that this requirement was not complied with because the form was signed by Murphy in blank. It is submitted that what has to be signed is not a bit of blank paper, but something which is at the time of the signature a note or memorandum of the agreement. It is pointed out that, whereas the other parties to the agreement are expressly allowed to sign by an agent, the hirer is not: and a fortiori, therefore, could not authorise an agent to fill in the agreement for him. In our judgment this submission is right. The wording of the Act suggests that the note or memorandum must be made before it is signed, and a consideration of the object of the Act supports the literal construction, for the object of the provision must be that the hirer should know and understand what he is agreeing to”. (italics mine)

I have found that the credit sale agreement is unenforceable or worthless. It does follow that the seizure is wrongful. The learned trial judge was right in setting it aside though for different reasons. I too will affirm his conclusion that the vehicle be returned to the cross‑respondent not for reasons of Sale of Goods Law (supra) but for the simple reason that the purported credit sale agreement did not satisfy the requirements of section 2(2) (a) of the Hire‑purchase Act. Cap. 169 Laws of the Federation of Nigeria, 1990.

The two grounds in the cross‑appeal, namely grounds 2 and 3 which were argued together fail, and are accordingly dismissed. The cross‑appeal for that reason set out falls and it is accordingly dismissed. Since the cross‑appeal has been unsuccessful on those two grounds, ground 4 of the grounds of appeal does not call for consideration and it is struck out.

The failure of the cross‑appeal necessarily warrants the consideration of the appellant’s appeal on quantum of damages. Ground 1 of the grounds of appeal complained about the finding of the learned trial judge on the condition of the vehicle at the time of the seizure.

In arguing this ground, the learned Senior Advocate contended that the respondent having not categorically denied the appellant’s averments in paragraphs 16, 17 and 18 of the statement of claim the respondent is deemed to have admitted them. He cited the case of Lewis & Peat (Nig.) Ltd. v A.E. Akhimien (1976)7 S.C. 157. He then contended that he is then not required to prove that which is not disputed. He argued that the finding arrived at by the learned trial judge was, therefore not open to him on the state of the pleadings.

The learned counsel for the respondent in his reply observed that the complaint of the appellant on this ground was based on loss of use and contended that it is a claim for special damages and which must be strictly proved. He then referred the Court to paragraph 3 of the amended statement of defence whereby paragraph 23 of the statement of claim in which the appellant alleged loss of use was denied. After referring to portions of the judgment of the trial judge including the case of Oduola v Coker (1981)5 S.C. 197 he submitted that the ground of appeal lacks merit and should be dismissed.

The submission of the learned counsel for the respondent is misconceived. The complaint in this ground of appeal is based on the state of the vehicle at the time it was seized and the finding of the court thereon and not on the loss of use as postulated by the learned counsel for the respondent. In this connection, the appellant pleaded in paragraphs 16, 17 and 18 of her statement of claim thus ‑

“16. The said vehicle was repaired and brought to Ibadan, on getting to Ibadan it was immediately repossessed by the defendant.

Two months after repossession of the vehicle the said Aihaji Goke lyanda collected the sum of N40.00 from the plaintiff for the defendant and the vehicle was released to the plaintiff.
On the 12th day of April when the vehicle returned from trip to Kano the defendant in the company of 7 armed men came with a policeman from Idiaro Police Station and forceably repossessed the vehicle.”

These paragraphs were not denied either expressly or impliedly by the respondent. The parties, therefore, did not join issue on the fact that the vehicle was in a working condition. In the circumstance, I agree with the contention of the learned Senior Counsel for the appellant that, on the pleadings, the respondent did not dispute that the car was not defective at the time of seizure. It was, therefore, not open to the learned trial judge to hold as follows ‑

“The plaintiff has said she used to use the vehicle to carry some passengers but on the evidence before the court, the vehicle was defective and not working when it was repossessed.”

There is no evidence, with the greatest respect to the learned trial judge, to support his finding to the effect that the vehicle was defective or was not working at the time of seizure. This finding of the learned trial judge is not only perverse or unsound, see Kojo11 v Bonsie 14 WACA 242,243; Ebba v Ogodo (1984)1 S.C.N.L.R. 372 but also constitutes a misdirection vide Chidiak v Laguda (1964) N.M.L.R. 123, 125 as it was not supported by evidence. The only evidence on the point tendered before the learned trial judge was proffered by the appellant. The relevant portion of her testimony reads

“About three years ago the engine of the vehicle knocked (sic) i.e. broke down. Consequently it was taken to a mechanic for repairs. After the repairs I parked off. The defendant later arrived in company of others…”

This piece of evidence was not considered by the learned trial judge who completely ignored it. The learned trial judge was duty bound to consider it by weighing it against the background of the case before ascribing probative value to it. Since the trial judge neither accepted nor rejected the appellant’s testimony that “after the repairs” there is no basis for the reliance placed on the authority of Oduola v Coker (supra) by the respondent’s counsel.

I now return to the question of burden of proof canvassed by the learned Senior Counsel. I think there is force in the submission. The respondent having impliedly admitted paragraphs 16, 17 and 18 of the statement of claim there is no longer burden of proof on the appellant to prove that the vehicle was functioning when it was seized since the same had been admitted by her adversary. See Onobruchere & Anor. v Esegine (supra) and section 75 of the Evidence Act (supra).

Be that as it may, the learned trial judge found that the respondent did not give evidence. Pleadings are no evidence; it is incumbent on the defendant to call evidence to support their averments; failure to do so is deemed to be abandonement of defence by the respondent. See Nwabuoku v Ottih (1961) All N.L.R. 487; (1961) 2 SCNLR 232; Okechukwu v Okafor (1961) All N.L.R. 685 and Uwegba v A.G. Bendel State (1986) 1 NWLR (pt 16) 303, 307. In the circumstance ground 1 of the grounds of appeal succeeds and it is allowed.

On ground 2 of the grounds of appeal, the learned counsel for the appellant rightly, in my view, conceded that the claim for loss of use is a claim in special damages which demands of strict proof. Counsel then contended on behalf of the appellant that the burden of proof has been discharged with the refusal or neglect of the respondent to go into the witness box to testify in rebuttal of evidence adduced by the appellant. It was contended further that since the claim had not been challenged nor rebutted the appellant is entitled to the damages claimed. He relied for this proposition on the case of Nwabuoku v Ottih (1961) All N.L.R. 487, 490 (1961) 2 SCNLR 232.

The submission that since the respondent neglected to lead evidence the appellant is entitled to judgment as a matter of course, is not supported by Nwahuoku v Ottih (supra) and Omoregbee v Lawani (1980) 3‑4 S.C. 108 at 117 which, seems to me, do not go that far. The court is still entitled, in even an undefended case, to be satisfied that the evidence adduced is credible and sufficient to sustain the claim. See Paul Adebayo Atilade v Genevieve Lucetta Atilade (1968) I All N.L.R. 27. In the circumstance, the evidence adduced calls for a review.

The appellant pleaded in this regard that the vehicle was seized on 12th day of April, 1982, that when she visited the office of the respondent she met the vehicle displayed for sale and that the respondent refused to return the vehicle in spite of repeated demand. The appellant further pleaded at paragraph 23 of her statement of claim thus ‑

“23. The plaintiff makes a daily net profit of N 130.00 per day including Sunday at N27.00 per person (6 passengers) between Ibadan and Maiduguri.”

The respondent denied liability as follows in paragraph 3 of his amended statement of defence:

“3. The defendant denies paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 19, 23 and 24 of the statement of claim and puts the plaintiff to strict proof of the same.”

On the issue thus joined, the appellant testified in support of her averment as follows

“I was using the vehicle between Ibadari and Maiduguri. I was carrying six passengers in the vehicle. I was taking the fare of N27.00 from each of the passengers. I had a driver who was driving the vehicle.”

And the learned trial judge succinctly answered this aspect of the case in his judgment thus ‑

“The evidence in support of fares that used to be collected is tenuous. I cannot in the circumstances award her anything for the loss of use.”

I think the finding of the learned trial judge is erroneous. The appellant pleaded and adduced evidence in proof of her net daily earnings or income which could have been challenged and was not indeed so challenged or contradicted by the respondent who had the opportunity to do so, the lower court was seriously in error in not acting on the best evidence before it. That in the realm of proof in a civil case the onus or burden of proof is not static, but oscilliates from side to side and thus in a particular circumstance the onus was clearly on the respondent to produce the evidence which bethought was missing. In the case of Nigerian Maritime Services Ltd. v. Alhaji Bello Afolabi (1978)2 S.C. 79, 86, the plaintiff testified that he makes daily sales of N50.00 to N100.00 in support of a claim for a daily profit of N50.00 and was given judgment.

In Boshali v Allied Commercial Exporters Ltd. (1961) All N.L.R. 917; (1961) 2 SCNLR 322 unchallenged evidence of 6d profit per yard was considered sufficient proof of his actual loss. See also E.K. Odulaja v A.F. Haddad(1973) 11 S.C. 357 and Doobay & Ors. v Mo/ia beer (1967)2 All E.R. 760 at 765 the evidence that “the cost of the installation was 500 dollars including workmanship” was held to be sufficient proof of damages by the Privy Council.

The burden of proving special damages strictly is no more than such proof that would lend itself to quantification. In the present circumstance, the appellant having led evidence as to the number of passengers her vehicle takes on each trip and the number of days it made journeys as well as fare chargeable in respect of each passenger, I am of the view, that she is entitled to judgment in the absence of convincing evidence to the contrary and want of cross‑examination to the effect that the claim was excessive. The basis of rejecting her claim for special damages is not only tenuous but also erroneous resulting in improper assessment of special damages as laid down in Oladehin v Continental Textile Mills Ltd. (1978) 2 S. C. 23, Mutual Aid Societv Ltd. v M.A. Akerele (1966) NMLR 257; (1965)1 All N.L.R. 336 and Flint v Love/I (1934) All E.R. 200, 202‑203.

Before concluding the judgment it is observed that the evidence of the appellant that her vehicle makes daily trip to Maiduguri from Ibadan or vice versa appears not only impracticable but also impossible. But in the absence of any evidence that there are no other Ibadan or Maiduguri elsewhere in the country the journey between which is capable of being made on a daily basis one is bound to accept that piece of evidence. It, therefore, appears one cannot take judicial notice of the fact that Maiduguri is as far from Ibadan that a vehicle cannot be making the journey daily. In other words court cannot take judicial notice of distance. See generally Phipson on Evidence 12th Edition, paragraph 53 at p. 27 where the learned authors said ‑

“So in Kearing v King notice would not be taken that “Dublin” meant Dublin in Northern Ireland, since there might be other Dublins elsewhere; nor in Kirby v Hickson would the court notice that Park Street, Grosvenor Square was within twenty miles of Russel Square.”

This seems to confirm the proposition that the court cannot embark on its own investigation outside the evidence adduced before it and can also not employ its personal knowledge in arriving at a determination. See Aboko v Igala N.A. (1966) N.M.L.R. 57 and Adeniji v Adeniji (supra), (1972)4 S.C. 10. In the result ground 2 of the grounds of appeal also succeeds.

The appeal is consequently allowed. The order of the learned trial judge refusing appellant’s claim for loss of use is hereby set aside. In its place I enter judgment in favour of the appellant in the sum of N130.00 a day from the date of seizure until the vehicle is delivered to her to compensate for loss of use.

There will be order as to costs which is assessed at N200.00 against the respondent.

AKANBI J.C.A.:

I Agree.

OGWUEGBU, J.C.A.:

I have had the privilege of reading in draft the judgment just delivered by my learned brother, Salami, J.C.A. I agree entirely with the reasoning and conclusion.

The facts of the case and the grounds of the appeal and cross‑appeal have been stated and treated exhaustively in the lead judgment. I only wish to comment on the rejection of the second head of the appellant’s claims in the Court below on the ground that the evidence in support of the fares that used to be collected was tenuous.

In paragraphs 23 and 24 of the statement of claim, the appellant averred as follows: ‑

“23. The plaintiff makes a daily net profit of N 130.00 on pay day including Sundays at N27.00 per person (6 passengers) between Ibadan and Maiduguri.

The plaintiff has suffered damages by reason of the wrongful seizure.” (Italics Mine)

In her evidence in chief from page 20 line 32 of the record of appeal to page 21 lines 1‑3, the appellant said:

“I was using the vehicle between Ibadan and Maiduguri. I was carrying six passengers in the vehicle. I was taking the fare of N27.00 from each of the passenger (sic). I had a driver who was driving the vehicle.”

Continuing at page 21 lines 4 to 10 the appellant testified thus:‑ to the facts which make such calculation possible”. Per Lord Donovan in Perestrello v. United Paint Co. (1969)1 WLR. 570 at 579 and Incar Motors Nig. Ltd. & or. v. Adegboye (1985) 2 N.W.L.R. (pt. 8) 453.

The appellant did more than that. He pleaded the facts and gave evidence on those facts which were not challenged or controverted. The learned trial judge clearly erred in law by holding that the evidence on the fares collected was tenuous and thereby refused to award the special damage claimed.

In conclusion, I endorse all the consequential orders made in the lead judgment.

Appeal Allowed.

Cross‑appeal dismissed.

3PLR – MADAM SARAFA AYOKE V. ALHAJI SULE BELLO

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR

MADAM SARAFA AYOKE

V.

ALHAJI SULE BELLO

COURT OF APPEAL, IBADAN DIVISION

CA/1/142/88

MONDAY, 2ND DECEMBER, 1991

3PLR/1991/55 (CA)

Law Nigeria Admin

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