(2007) 2 All N.L.R. 243
ONNOGHEN, JSC (DELIVERED THE LEADING JUDGMENT):- This is an appeal against the judgment of the Court of Appeal holden at Lagos in appeal no. CA/L/243/93 delivered on the 9 February 2001 in which the court held as follows:-
"1. The plaintiff's claim in respect of rig no. LA2632 WD succeeds and the plaintiff is awarded:-
(a) The sum of N3,300 as the market value of the rig at the date of judgment of the lower court.
(b) N560,000 as damages for loss of income on the rig for 260 days at the rate of N2,000 per day.
2. The claims of the plaintiff on rig no. LA8509 WD are refused as the plaintiff did not show that a Rig is a motor vehicle within the meaning of section 1 of the Hire-Purchase Act, Cap. 169.
3. The award of the sum of N319,806 on the scrappers are affirmed? and this Court sees no reason to award more than that amount.
4. On the counter-claim by the defendant, judgment is given in favour of the defendant for the sum of N108,324.16 the breakdown of which is as follows:-
(a) N100,000 being the unpaid balance of the purchase price due on the rig no. LA8509 WD.
(b) N8,324.16 being cost of repairs and spare parts on the plaintiff's rig."
The facts of the case, as can be gathered from the very lengthy and unnecessarily tedious pleadings of the parties include the following:-
The plaintiff who is also the appellant before this Court, at first bought one Ingersoll Cyclone Water Well rig with registration no. LA2632 WD from the respondent under a Hire-purchase Agreement for the sum of N431,842 which the appellant eventually fully paid for thus becoming the owner thereof.
The second transaction between the parties involves a second rig with registration no. LA8509 WD which the appellant also bought under a Hire-purchase Agreement for the sum of N514,482 in respect of which the appellant paid the sum of N100,000 being two instalments of N50,000 each remaining unpaid or outstanding at the time of the dispute between the parties. The facts of the above two transactions are not disputed by the parties.
There is finally a third transaction involving scrappers, the facts in relation to which are violently disputed by the parties. It is the appellant's case that on 26 January 1984 and 10 February 1984 respectively, it bought a road scrapper each on those dates for the sum of N159,903 and fully paid cash for both. The appellant further contends that the parties later agreed that the sums paid on the two scrappers be merged and credited to the appellant on account of the purchase by the appellant on hire-purchase terms of one new rig and "two service rigs", that the respondent later expressed its inability to implement the said agreement which made the appellant instruct the respondent to sell the scrappers and make a refund to it of the purchase price for both scrappers.
On the other hand the respondent contends that each scrapper was sold for N177,162 and that the sum of N159,903 paid by the appellant on each scrapper was a deposit against the said purchase price and that the appellant owed the balance of N34,518 on both scrappers. It is the further contention of the respondent that the appellant bought two other scrappers for which no deposit was made but rather that the appellant allegedly deposited its rig no. LA2632 WD as security against the payment due on the said scrappers. The respondent claimed to have delivered the four scrappers to Sokoto Agricultural Development Project ("SADP") on behalf of the appellant on an alleged instruction of the appellant which the appellant denied.
It is in these circumstances that the appellant instituted suit no. LD/481/85 in the High Court of Lagos State, holden at Ikeja claiming the following reliefs as per the Third Amended Statement of Claim:-
"1. A DECLARATION that the seizure of the plaintiff's rigs nos. LA2632 WD and LA8509 WD was wrongful.
2. An inquiry into the current market value of rig no. LA2632 WD and an award of the said current value of the said rig.
3. The sum of N414,480 being money had and received by the defendant on rig no. LA8509 WD before the wrongful seizure plus damages at the rate of N2,000 per day from the date of the wrongful seizure, i.e. 29 May 1984 until payment of the said damages.
4. ALTERNATIVELY, an inquiry into the current market value of the said rig no. LA8509 WD and an award of the ascertained value as damages.
5. An order directing all necessary inquiries and accounts.
6. The sum of N2,000 per day being loss of use of rig no. LA2632 WD from 1 March 1984 until the rig is released.
7. An order directing an inquiry into the market value of the above rigs and payment thereof to the plaintiff in lieu of or in addition to return of the rigs.
8. A declaration that the delivery of the plaintiff's 2 (Nos) Fiat/All-is Motor Scrappers Model 360B to the Sokoto Agricultural Delopment Project ('SADP') by the defendant was wrongful and without the authority of the plaintiff.
9. An order directing the defendant to make a refund of a sum of N319,806 (Three Hundred and Nineteen Thousand, Eight Hundred and Six Naira), being money had and received for the two scrappers sometime in 1984 which the defendants have failed and/or neglected to deliver to the plaintiff and or converted to their use.
10. An order directing all necessary inquiries into the market value of the said scrappers at the date of hearing and/or judgment.
11. An order awarding the market value as damages to the plaintiff less the sum of N319,806 aforesaid being damages for conversion and/or detinue."
The respondent counter-claimed against the appellant in a Statement of Defence in which it admitted that rig no. LA2632 WD belonged to the appellant but contended that the appellant sent the said rig to it for repairs in mid-February 1984 and used the same as security for outstanding liability for an alleged credit purchase of two additional scrappers which the appellant allegedly instructed the respondent to deliver, in addition to the earlier two scrappers, to the Sokoto Agricultural Development Project. The respondent also claimed N100,000 outstanding instalments etc.
The trial court found in favour of the appellant except for the claim of N100,000 outstanding two instalments which it awarded to the respondent. The respondent appealed to the Court of Appeal while the appellant cross appealed against the said decision of the trial court resulting in the judgment now on appeal before this Court and being considered in this judgment.
The issues for determination as identified by learned Counsel for the appellant, C. Ezike Esq. in the appellant's Brief of Argument filed on 9 August 2001 are as follows:-
"3.01 In the circumstances of this case, and in particular having regard to the issue of estoppel and the presumptions of law that arose in this case, was the Court of Appeal right in holding that the Common Law as opposed to the Hire-Purchase Act, (Cap. 169 LFN) governs the transaction relating to the motor rig registered as LA8509 WD?
3.02 With regard to the plaintiff's two scrappers and the reliefs sought for their conversion/detinue what reliefs should the Court of Appeal have awarded in the circumstances of this case?
3.03 In the circumstances of this case, what is the correct measure of damages for the seizure of the plaintiff's rigs?
3.04 Was the award of the sum of N108,324.16 to the defendant made on the correct principles of law?"
The respondent, on the other hand has cross appealed to this Court and in the cross-appellant's Brief of Argument filed on 8 March 2004 by Prince Adesegun Ajibola, the following issues have been identified for determination:-
"1. Whether there was evidence to support the award of damages made by the Court of Appeal.
2. Whether the Court of Appeal was justified in making a fresh appraisal of evidence already appraised by the trial court.
3. Whether the Court of Appeal was right when it held that Exhibit 'D3' was inadmissible and evidence of fact not pleaded."
In arguing appellant's Issue 1, learned Counsel stated that it is common ground that out of the sum of N514,482 hire-purchase price for rig no. LA8509 WD the appellant had at the time of its repossession by the respondent paid the sum of N414,482,00 leaving a balance of two instalments of N50,000 each? that though the respondent claimed that the hire-purchase agreement was governed by the Common law, the appellant stated that it was governed by the provisions of the Hire-Purchase Act, Cap. 169 particularly as the rig no. LA8509 WD is a mechanically propelled vehicle intended or adopted for use on roads and duly registered as a motor vehicle? that the trial court rightly held that the transaction in rig no. LA8509 WD is governed by the Hire-Purchase Act, 1965 and submitted further that the Court of Appeal was in error when it reversed that holding by holding that the said transaction was governed by the common law. Learned Counsel further submitted that the holding by the Court of Appeal to the effect that Exhibit 'D2' did not incorporate the provisions of the Hire-Purchase Act as it did not stipulate that on payment of 3/5th of the purchase price the respondent would not be able to repossess the rig and that the appellant did not call evidence to prove that a rig is the same thing as a motor vehicle are erroneous particularly as they were made without reference to or consideration of the submissions of learned Counsel for the appellant before that Court. Learned Counsel then referred to Exhibit 'D2' and stated that the Statutory Notice requirement of section 2(c) of the Hire-Purchase Act and the schedule thereto were complied with by their verbatim reproduction in Exhibit 'D2' and that clause 6 thereof contains "Restrictions of Owners Right to Recover Goods" particularly as it is only in the Act that the right to recover the goods in issue is restricted whereas under the common law, no such restriction exists as long as the hirer is in default of instalments? that since appellant paid more than 3/5th of the price it was wrong for the respondent to have recovered the rig.
Submitting in the alternative, learned Counsel , stated that granted, without conceding that it is the common law that applies to the transaction, the result would still be the same as the respondent cannot recover the rig after the appellant had paid 50% or 60% of the purchase price without recourse to the court, which was never done in this case.
On the sub-issue as to whether the appellant called evidence to prove that a rig is the same thing as motor vehicle learned Counsel referred the court to page 921 of the record where the Court of Appeal found "that under cross-examination, DW1 gave evidence suggesting that the rig no. LA8509 WD was generally treated as if it was a motor vehicle," and submitted that the above finding amounts to finding that the said rig is a motor vehicle? that the respondent is estopped from denying that the said rig is a motor vehicle having by itself registered it as a motor vehicle with the motor Licensing Authority, insured same, obtaining a road worthiness certificate for same and having previously treated Exhibit 'P' as an agreement under the Act and rig no. LA2632 WD as a motor vehicle? that the case of Burns v Currel [1963] 2 All ER 295 supports the view that the said rig is a motor vehicle.
On his part, learned Counsel for the respondent in the respondent's Brief deemed filed on 27 April 2005 formulated two issues in respect of the appeal by the appellant. The issues are as follows:-
"1. Whether the Court Appeal was right in holding that the provisions of the Hire-Purchase Act do not apply to the transaction in respect of water rig no. LA8509 WD.
2. Whether the award of the sum of N108,324.16 to the defendant by the Court of Appeal was properly made in line with the principles of law?"
It is clear that the appellant's Issues 1 and 4 are the same or similar to the respondents Issues 1 and 2. However in relation to Issue No. 1, learned Counsel for the respondent submitted that it is the case of the respondent that the rig was voluntarily surrendered to the respondent by the appellant? that even if the version of the appellant that the rig was seized by the respondent is accepted the seizure is not unlawful considering the applicability of the provisions of the Hire-Purchase Act, 1990. Learned Counsel urged the court not to disturb the finding by the Court of Appeal that the transaction in issue is outside the contemplation of the Hire-Purchase Act. Learned Counsel referred the court to sections 1(a), 9(1) and (5) of the Hire-Purchase Act as well as section 20(1) thereof and submitted that the appellant failed to prove that rig no. LA8509 WD is a motor vehicle under the Hire-Purchase Act. Counsel referred to Burns v Currel (supra)? Daley v Hargreaves [1961] 1 All ER 552 and Macdonald v Carmicheal (1911) SC (1) 27 and submitted that rig no. LA8509 WD is not a motor vehicle within the Act? that the fact that Exhibit 'D2' does not stipulate that the respondent would not repossess as provided under section 9(1) of the Hire-Purchase Act upon payment of 3/5th of the purchase price by the appellant confirms the intention of the parties to take the transaction outside the purview of the Hire-Purchase Act? that since it is the intention of the parties that the transaction be governed by the common law and it is not disputed that the appellant had defaulted in the payment of instalments, the agreement is therefore determined, relying on Atere v Amao (1957) WNLR 176. Learned Counsel therefore urged the Court to resolve the issue against the appellant.
Section 1 of the Hire-Purchase Act, provides as follows:-
"Subject to the provisions of section 19 of this Act, the provisions of this Act (other than the provisions relating to the control of advertisement) shall apply in Relation to:-
(a) all hire-purchase agreements and credit sale agreements (other than agreements in respect of motor vehicles) under which the hire-purchase price, as the case may be does not exceed two thousand naira . . ."
The question is whether the rig no. LA8509 WD is a motor vehicle within the contemplation of the Hire-Purchase Act or not. The trial court found that it is while the Court of Appeal said it is not. To answer the question one has to look at the provisions of the Hire-Purchase Act so as to know what the Act recognises as a motor vehicle. In that respect section 20(1) of the Hire-Purchase Act is very relevant. It defines the term as follows:-
"'Motor vehicle' means a mechanically propelled vehicle intended or adopted for use on roads or for use for agricultural purposes."
There is no dispute that the rig LA8509 WD is mounted on a chassis, registered with the Motor Licensing Authority, given a certificate of road worthiness and insured. Also not disputed is the fact that it is driven by a driver from point to point. Equally not disputed is the fact that the registration, insurance etc were done by the respondent.
PW1 stated at pages 226-227 that:-
"DH 60 Ingersoll Ran Cyclone Drilling machine is mounted on a chassis like a water Tanker - and it is called a Derick. The rigs were duly registered with a Motor Licensing Authority. The registration was done by the defendant."
DW1 stated at page 277 thus:-
"Ingersoll Waterwell rig is not a Motor Vehicle. But each has to be registered with the licensing authority. There must be Motor Vehicle Insurance for them. There must be a road worthiness certificate. There is a vehicle licence. It is driven by a Driver . . ."
In paragraph 43 of the plaintiff's reply and defence to the counter-claim, the plaintiff pleaded, inter alia:-
". . . the rig therein is a mechanically propelled vehicle intended or adapted for use on roads duly registered as a motor vehicle with the licensing authority by the defendants and contrary to the defendants . . . Is covered by Hire-Purchase Act, (1915). The defendants are hereby given notice to produce the original hire-purchase agreements between the parties herein and numbered 7/T4600297/83 and 14/T4600291/82."
In resolving the issue "were, the purchase and sale governed by Hire-Purchase Act 1965?". The learned trial judge at page 437 stated thus:-
". . . In resolving this issue the question I ask is - What is the intention of the parties? Is there any consensus ad idem? The answers are that it was the intention of the parties that this transaction should be governed by Hire-Purchase Act, 1965 and the minds of the parties meet on this. In my judgment the purchase and sale of the two rigs were governed by the Hire-Purchase Act, 1965. To hold otherwise would involve not only making a new agreement for the parties but also varying the existing agreement. I hold that it will be unjust and inequitable for either party to resile from these agreements Exhibits 'P1' and 'D2'."
The reaction of the Court of Appeal to the above finding is at pages 919-920 of the record where it stated thus:-
"At the trial, the plaintiff did not call any evidence to show that a rig was the same thing as a motor vehicle. The nearest the plaintiff went to showing this was in the testimony of PW1 at page 226 of the record of proceedings where he said:-
'DH 60 Ingersoll that (sic) Cyclone Drilling Machine is mounted on a chassis like a water tanker and it is called Derick. The rigs are duly registered with a Motor Licensing Authority. The registration was done by the defendant . . .' and therefore concluded that the rig in question is not a motor vehicle and therefore the transaction was governed by the common law instead of the Hire-Purchase Act."
However at page 921 of the Record the Court of Appeal found as follows:-
"I am not unaware that under cross-examination, DW1 gave evidence suggesting that the rig no. LA8509 WD was generally treated as if it was a motor vehicle . . ."
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. It is not disputed that the plaintiff/appellant pleaded that the rig is a mechanically propelled motor vehicle intended or adopted for use on roads duly registered as a motor vehicle by the respondent. The position of the law being what it is the appellant is entitled to take advantage of the evidence of DW1 extracted under cross-examination and which supports the pleading of the appellant to the effect that the particular rig in issue is a motor vehicle. The piece of evidence is at page 227 of the record and had earlier been reproduced in this judgment. At the risk of repetition I reproduce same hereunder:-
"Ingersoll Waterwell rig is not a Motor Vehicle. But each has to be registered with the licensing authority. There must be a motor vehicle insurance for them. There must be a road worthiness certificate. There is a vehicle licence. It is driven by a driver."
To confirm the fact that the above evidence together with other pieces of evidence on record established the fact that the rig was a motor vehicle for the purpose of the Hire-Purchase Act, the Court of Appeal found at page 921, also reproduced earlier:-
"that under cross-examination, DW1 gave evidence suggesting that the rig no. LA8509 WD was generally treated as if it was a motor vehicle."
I hold the view that if the rig is generally treated as if it is a motor vehicle and having regard to the facts and circumstances of this case - its being registered by the motor licensing authority, being insured, given certificate of road worthiness and driven by a driver - it is in fact a motor vehicle within the contemplation of section 20(1) of the Hire-Purchase Act.
In the case of Dale v Hagreuves [1961] 1 All ER 552 at 556 Salmon, J held that all that is required to categorise a machine as a motor vehicle is its capacity of "being driven along public roads in transit or for purposes of carrying materials from one site to another."
In British Oxygen Co v Board of Trade [1968] 2 All ER 177 at 183 Buckley, J held that:-
"I am unable to accept the company's contention that 'vehicle' here means only such ordinary means of transport as lorries and motor cars . . . in my judgment it extends to specialised vehicles,"
and I hereby adopt that view as mine in this case. The rig in question is a specialised vehicle duly registered etc.
That apart, it is in evidence that it is the respondent who represented to the appellant that the rig in question is a motor vehicle by the act of registration of same as a motor vehicle with the motor licensing authority and obtained a certificate of road worthiness for the vehicle and are, in law, estopped from denying that the said rig is a motor vehicle.
Even under the common law, if it were to apply to the facts of this case, which I do not concede, the respondent cannot seize or repossess the rig without recourse to the court. It is therefore not the case that if the common law applies the respondent can repossess the rig by seizure or otherwise than as provided by law, particularly as it is in evidence before the court that the appellant had paid up to 60% of the purchase price of the rig in question which fact has not been denied by the respondent.
I therefore hold that the Hire-Purchase Act applies to the transaction between the parties and that as it is admitted that the appellant has paid 3/5th of the purchase price of the rig in issue the respondent cannot in law repossess the rig otherwise than in accordance with the law. In the circumstance I resolve Issue No. 1 in favour of the appellant.
On Issue No. 2, learned Counsel for the appellant stated that the lower courts are in agreement that the delivery and sale of appellant's two scrappers to the SADP was wrongful as the appellant never authorised same? that what constitutes the problem is the amount to award as damages? that having found that the claim of the appellant succeeded in that respect, the trial court ought to have ordered inquiry as to damages as claimed instead of making the order as an alternative to the award of N319,806, which was not what the appellant claimed - that the appellant made a cumulative and consecutive claim grounded in conversion. Learned Counsel then stated that the Court of Appeal erred in limiting the award, upon appeal, to the sum of N319,806 under the impression that the appellant had specifically asked for that sum and that the appellant had also asked that the scrappers be sold and as such cannot claim on the basis of loss of income.
Learned Counsel submitted that as evidenced in paragraphs 34(8), 34(9), 34(10) and 34(11) of the Statement of Claim, the appellant asked for much more than the N319,806? that the appellant asked for the refund of N319,806 purchase price plus an order of inquiry into the current value of the scrappers and the award of the resultant current value as damages less the N319,806 purchase price.
Learned Counsel further submitted that it is not the defence of the respondent that it sold the scrappers for the appellant but that it delivered same to the SADP on the instructions of the appellant. Referring to the case of Stitch v Attorney-General of the Federation (1986) 12 SC 373 at 422-423, learned Counsel submitted that the measure of damages for conversion is generally "the value of the chattel at the date of conversion together with any consequential damages flowing from the conversion," and that on the authority of MacGregor on Damages (14ed) paragraphs 1056 and 1087 the appellant is entitled to recover in addition to the N319,806, the amount by which the market value of the goods have risen between conversion and judgment and that the appellant is entitled to the replacement values of the two scrappers subsequent to the date of the judgment of this Court.
I have carefully gone through the respondent's brief and the cross-appellant's brief filed in this appeal and have not seen where arguments have been proffered by the respondent to counter the submissions of learned Counsel for the appellant in respect of Issue 2 (supra). In fact, the two issues formulated by learned Counsel for respondent do not include appellant's Issue 2. However, does it mean that in law the appellant is entitled to the claims as couched?
It is not in doubt that both the High Court and the Court of Appeal found as a fact that the appellant's two scrappers were delivered and sold by the respondent to the SADP without the authority of the appellant and as such wrongful, and that the appellant's claim in respect of the scrappers succeeded. The question that follows is the measure of damages recoverable by the appellant in the circumstance.
In paragraph 34(8), (9), (10) and (11) of the Third Amended Statement of Claim at page 343 of the record, the appellant claimed as follows:-
"(8) A declaration that the delivery of the plaintiff's 2 (No.) Fiat Allis Motor Scrapper Model 360B to the Sokoto Agricultural Development Project ('SADP') by the defendant was wrongful and without the authority of the plaintiff.
(9) An order directing the defendants to make a refund of a sum of N319,806 (Three Hundred and Nineteen Thousand, Eight Hundred and Six Naira) being money had and received for two scrappers sometime in 1984 which the defendants have failed and/or neglected to deliver to the plaintiff's and or converted to their use.
(10) An order directing all necessary inquiries into the market value of the said scrappers at the date of hearing and/or judgment.
(11) An order awarding the market value as damages to plaintiffs (sic) less the sum of N319,806 aforesaid being damages for conversion and/or detinue."
The claim is therefore a declaration that the delivery of the two scrappers to the SADP is wrongful and an order of inquiry into the current value of the scrappers as at the time of judgment and award of the resultant current value as damages less the N319,806 which is to be refunded as money had and received.
In the case of Stitch v Attorney-General of the Federation (1986) 12 SC 373 at 422-423 this Court stated, per Uwais, JSC (as he then was) that the measure of damages for conversion is "the value of the chattel at the date of conversion together with any consequential damages flowing from the conversion."
Since the lower courts have, rightly in my view, found concurrently that the delivery and sale of the appellant's scrappers by the respondent to the SADP was without the authority of the appellant and therefore wrongful and the respondent has not contested Issue No. 2 as argued before this Court and therefore deemed to have conceded same, it follows that the appellant is entitled to the reliefs claimed in respect of the said two scrappers, particularly as pleaded in paragraphs 34(8), 34(9), 34(10) and 34(11) of the Third Amended Statement of claim which is hereby ordered accordingly. For the avoidance of doubt it is further ordered that the necessary inquiries into the market value of the said scrappers shall be as at the date of the judgment of the High Court.
On Issue no. 3 learned Counsel referred the Court to paragraph 34(7) of the Statement of Claim. As regards rig no. LA2632 WD which both courts found had been fully paid for by the appellant, learned Counsel for the appellant submitted that the court ought to have assessed and awarded or ordered the assessment and award of the value of the rig as at or subsequent to the date of its judgment i.e. Court of Appeal judgment.
With regard to rig no. LA8509 WD learned Counsel submitted that the lower court was in error when it ordered the refund of the instalments already paid as an alternative to an order for inquiry prayed for in paragraph 34(7) of the Statement of Claim and that by the authority of Ayoke v Bello (1992) 1 NWLR (Part 218) 380 at 397-405 the appellant is entitled to the return of the said rig or the resultant assessed value in addition to the damages of N2,000 per day until payment or return of the said rig as prayed? that since the respondent did not sign Exhibit 'D2' in violation of section 2(2)(a) of the Hire-Purchase Act, the consequence is that the counter-claim for the N100,000 balance of instalments in respect of the rig in question is unenforceable and that by operation of section 9(2)(a) of the said Act coupled with the fact that the appellant had paid more than the relevant proportion of the price before the seizure of the rig, all the appellant's liabilities under the said Exhibit 'D2' are extinguished, relying on Ayoke v Bello (supra) at 401? that the Court of Appeal ought to have awarded the claim of N2,000 per day by way of profit until delivery of the rig and not to have limited the award to 260 working days particularly as the appellant claimed the profit per day "from 1 March 1984 until the rig is released to the plaintiff " and PW1 testified to the fact that the appellant's claim is as per the Statement of Claim.
In short, learned Counsel submitted that the appellant is entitled to the replacement values of its rigs, the loss of profit as claimed and generally to be placed in the same position it would have been but for the respondent's wrongful acts of seizure of the rigs, and urged the court to resolve the issue in favour of the appellant.
Though learned Counsel for the respondent did not argue the issue in the respondent's Brief, it was argued as part of the issues in the cross appeal.
Learned Counsel for the respondent argued that the Court of Appeal was in error in awarding damages to the appellant when there was no evidence in support of the award? that rig no. LA2632 WD which both parties agree belongs to the appellant was delivered to the respondent by the appellant as security against the purchase price of two scrappers. Strangely it is also the submission of Counsel for the respondent that the said rig was "traded . . . for 2 scrappers" appellant needed from the respondent and that Exhibit 'D3' is evidence of the sale of the said rig by the appellant to the respondent. That being the case, learned Counsel for the respondent is of the view that the appellant is not entitled to any award in respect of LA2632 WD and that the Court of Appeal was in error when it made an award in respec