CORAM
PARTIES
CIVIL DESIGN CONSTRUCTION COMPANY NIG. LTD APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The plaintiff, who is hereinafter called the Appellant, at first bought one Ingersoll Cyclone Water Well rig with registration No. LA 2632 WD, from the Respondent under a Hire purchase Agreement for the sum of Nl00,000.00 being two installments of N50,000.00 remaining unpaid or outstanding as at the time of the dispute between the parties
HELD
APPEAL ALLOWED
ISSUES
whether or not a valid and proper notice was given by the Applicant to the Respondent before applying to the High Court for the appointment of an arbitrator as required by section 6 subsection (1)(a) and (2) of the Arbitration Law of Lagos State.
RATIONES DECIDENDI
NATURE OF THE TORT OF DETINUE
“That Detinue is an action only in tort for failure to deliver up the plaintiffs chattel and it entails claim for the return of the chattel or its value and damages for its detention” PER ONNOGHEN, J.S.C
EVIDENCE IN SUPPORT OF UNPLEADED FACTS GOES TO NO ISSUE
“On the third issue it is very clear that exhibit D3 is at variance with the pleadings of the cross appellant. It was never the case of the cross appellant that rig no. LA 2632 WD was sold by the appellant to the cross appellant as can be verified from the pleading. Exhibit D3 was even shown not to have been made by an officer of the appellant. It is trite law that evidence on a fact not pleaded goes to no issue, where admitted such evidence is strictly inadmissible in law primarily as it is not relevant – if it were, it ought to have been pleaded” PER ONNOGHEN, J.S.C
A PLAINTIFF MUST SUCCEED ON THE STRENGTH OF HIS OWN CASE – HE CAN HOWEVER RELY ON THE EVIDENCE OF THE DEFENCE WHERE SAME SUPPORTS HIS CASE
“It is settled law that a plaintiff must succeed on the strength of his case and not on the weakness of the defence and that where the evidence of the defence supports the case of the plaintiff, the plaintiff is entitled to rely on same in proof of his case” PER ONNOGHEN, J.S.C
A CONTRACT EXPRESSLY DECLARED UNENFORCEABLE BY STATUTE – EQUITY WILL NOT ASSIST THE DISENTITLED PARTY
“It is settled law that where a contract is declared unenforceable by the express provision of a statute, equity will not assist the party disentitled to enforce it by granting him a redress” PER ONNOGHEN, J.S.C
APPELLATE COURTS HAVE A DUTY TO SET ASIDE A PERVERSE FINDING – PARTICULARLY ONE THAT AWARDED A DEFENDANT WHAT IT NEVER CLAIMED BEFORE THE COURT
“To compound the matter the cross appellant admitted that the rig was sent to it for repairs as pleaded and testified to by the appellant. At the end the trial court awarded ownership of rig no. LA 2632 WD to the cross appellant even though cross appellant never claimed such a relief in its counter claim neither did it plead such a fact of ownership. It is settled law that an appellate court has the duty to set aside a perverse finding, judgment or decision particularly one that awarded a defendant what it never claimed on a case it never made before the court, as is in the instant case” PER ONNOGHEN, J.S.C
ON THE THREE FORMS JUDGMENT IN AN ACTION FOR DETINUE CAN TAKE
“It is trite law that an action in detinue may result in a judgment in one of three different forms: (1) for the value of the chattel as assessed and damages for detention; or (2) for return of the chattel or recovery of its value as assessed and damages for its detention; or (3) for return of the chattel and damages for its detention. In the instant case, the plaintiff is entitled to claim in the absence of a return of the property or the market price at the time of judgment, thus any rise in the market price between detention and judgment is at the risk of the defendant” PER ONNOGHEN, J.S.C
ASCRIPTION OF PROBATIVE VALUE TO EVIDENCE IS PRIMARILY THE DUTY OF THE TRIAL COURT AN APPELLATE COURT WILL INTERFERE WITH SAME ONLY IN EXCEPTIONAL CIRCUMSTANCES
“It is settled law, that evaluation of evidence and ascription of probative value is the primary function of the trial court which heard and watched the witnesses testify and that an appellate court will not ordinarily interfere with the findings of a trial court unless in special or exceptional circumstances such as where the finding of the trial court is not supported by the evidence or is otherwise perverse or where the trial court has not made full use of the opportunity of watching the demeanor of the witnesses etc” PER ONNOGHEN, J.S.C
ON THE DIFFERENCE BETWEEN AN ACTION IN CONVERSION AND AN ACTION IN DETINUE
“An action in detinue, differs from an action in conversion in that it is said to be primarily not for damages, but for the return of the goods” PER ONNOGHEN, J.S.C
SELF-HELP – ATTITUDE OF THE SUPREME COURT TO SAME
“Of course, self-help in any guise and by any person – high or low, Government or its functionaries/agents, have been deprecated by this Court in many decided authorities”
A PERSON OR BODY WILL NOT BE ALLOWED TO BENEFIT FROM HIS/ITS OWN WRONG DOING
“The proposition that a man will not be allowed to take advantage of his own wrong is no doubt a very salutary one and one which the Court would wish to endorse” PER ONNOGHEN, J.S.C
CASES CITED
Buswell v. GoodwillEzeani v. EjidikeChief J.K. Odumosu v. A.C.B. Ltd.Oseyomon & Anor. v. OjoEllochim (Nig.) Ltd. & ors. v. MbudiweStitch v. Attorney-General of Federation & Ors
STATUTES REFERRED TO
Section 9(2) (a) of the Hire Purchase Act