WHOHI DUMUYE TRADING UNDER THE NAME OF EDIRIN ENTERPRISES v. STEPHEN IDUOZO & ANOR (SC 32/76) [1978] 4 (09 February 1978);

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  • WHOHI DUMUYE TRADING UNDER THE NAME OF EDIRIN ENTERPRISES v. STEPHEN IDUOZO & ANOR (SC 32/76) [1978] 4 (09 February 1978);

IN THE SUPREME COURT OF NIGERIA

On Thursday, the 9th day of February 1978

SC 32/76

Between

WHOHI DUMUYE TRADING UNDER THE NAME OF EDIRIN ENTERPRISES ...................... APPELLANT

And

STEPHEN IDUOZO & ANOR ......................... RESPONDENT

 

The action filed by the plaintiff/appellant against the defendants/respondents is for the return of two new mebea trucks which the appellant surrendered to the respondents at their request for use as exhibits in an investigation of a charge of stealing made against the appellant, by one Palmer Sodje who gave the two mebea trucks to the appellant on a threat by the appellant to report the matter to the police if he, Palmer Sodje, failed to refund the appellant his money and on agreement that if by 13th November, 1972, he Palmer Sodje failed or refused to refund the money, the appellant was to keep the mebea trucks.

After the investigation, and it was clear to the police that the appellant did not steal the trucks. However the respondants failed to deliver the trucks to the appellants but rather deliver them to Palmer Sodje on the instruction of their Superior Officer, D.P.O.

The learned trial Judge held that there was no evidence before him that the 1st and 2nd respondents parted on their own with the two mebea trucks to any person and also that there was other evidence from the appellant of this transaction being reduced into writing, 'witnessed by any person or the ignition keys of the trucks given to the plaintiff'.

On appeal to the Supreme Court, the learned Counsel for the appellant contended that the learned trial Judge failed to make any finding as regards the agreement the appellant claimed was between him and Palmer Sodje over the ownership of the trucks after 13th November, 1972.

 

HELD

 

(1)     The appellant led sufficient evidence to show that ownership of the mebea trucks vested in him on failure of Palmer Sodje to refund money owned as agreed upon.

 

(2)     The trial court went off tangent by searching for evidence in writing, witness to the transaction or even the ignition of the trucks, instead of considering the evidence before it.

 

Appeal allowed. Order for retrial.

 

Dr D.D. Mowoe for the Appellant.

 

Mr D. Onakugbator for the Respondent.

 

Eso, J.S.C.-The action filed by the plaintiff (who is the appellant in this Court, and, who hereinafter, will be referred to as the appellant), in the High Court of the Mid-Western State (now Bendel State) sitting at Warri, against the defendants (respondents in this Court, and who hereafter, will be referred to as the respondents), is for the return of two new mebea trucks which the appellant surrendered to the respondent at their request for use as exhibits in an investigation of a charge of stealing made against the appellant, by one Palmer Sodje, or, in the alternative, the sum of N1,580, value of the said mebea trucks. The appellant also claimed N220 damages for the wrongful detention of the said mebea trucks.

 

Pleadings were ordered and duly filed and the parties led evidence. The case of the appellant was that he deposited N1,000 with Palmer Sodje, who traded under the style Star Enterprises, for the purchase of two cars. Palmer Sodje, whom the appellant believed to be a car dealer turned out, in fact, not to be one. On a threat by the appellant to report the matter to the police, Palmer Sodje gave him the mebea trucks, subject matter of this action, on an agreement that if he, Palmer Sodje, failed to refund to the appellant his money by 13th November 1972, the appellant was to keep the mebea trucks as his.

 

However, what Palmer Sodje did was to report to the police that the appellant stole the trucks, and the two respondents, who were involved in the investigation of that complaint, in pursuance thereof, asked the appellant to deliver the trucks to the police at the police station. After the investigation, and it was clear to the police that the appellant did not steal the trucks, the respondents failed to deliver the trucks to the appellant but rather, deliver them to Palmer Sodje.

 

The respondents admitted being the investigators of the criminal complaint, but said that after the investigation,

 

the Division Police Officer, one Lasisi Adeleti Akende, who gave evidence as the 4th defence witness, authorised the return of the trucks to Palmer Sodje on production by the letter of the keys and papers showing that Palmer Sodje was the owner of the trucks. Indeed, paragraph 13 of the Statement of Defence reads-

 

"The 1st and 2nd defendants over that after the case against the plaintiff was refused false, the mebea trucks remained lying at the Police Station. When by the 10th January 1973 Palmer Sodje on producing the keys and papers to show that he was the owner of the trucks saw the Divisional Police Officer to claim the trucks, the D.P.O. authorised their return to him."

 

The learned trial Judge, in an unnecessarily lengthy judgment, held that two issues stood to be determined in the case. He said-

 

'After careful consideration of the evidence adduced in court by both sides in this suit and the submissions of both learned councel for the plaintiff and defendants it would appear to me, that two main issues need to be determined before I can give judgment in this case. The two issues are as follows-

 

(i) who parted with the said two mebea trucks after the investigation of the allegation of stealing of the said mebea trucks against the plaintiff; and

 

(ii) who is the owner of these said two mebea trucks in dispute.

 

The learned Judge, on the first question, held that there was no evidence before him that the 1st and 2nd respondents parted on their own, with the two mebea trucks to any person. He went on-

 

"but the only evidence before this Court is the one of the D.P.O. who said that he directed that the said two mebea trucks should be given to the 5th defence witness, on presentation of documents to establish the ownership of the said two mebea trucks by Palmer Sodje and on his satisfying himself that the two trucks belong to the company Palmer Sodje was representing. It was on the instructions of the D.P.O. that the Police parted with the two trucks which were kept as potential exhibits."

 

As regards the second issue, the learned trial Judge held that apart from his assertion that he was given these two trucks by Palmer Sodje, there was no other evidence from the appellant of this transaction being reduced into writing 'or witnessed by any person or the ignition keys of the trucks given to the plaintiff.'

 

The complaint of the appellant, who is represented by Dr Mowoe, in this Court, is contained in this grounds of appeal to wit-

 

1.      The learned trial Judge erred in law and on the facts to have held that the 2 (two) Mebea Trucks the subject-matter of this suit was the property of a company represented by 5th Defence Witness (Palmer Sodje) and NOT the property of 5th Defence Witness (Palmer Sodje) HIMSELF and thereby come to a wrong decision.

 

PARTICULARS OF ERROR OF LAW

 

(i)      In paragraph 13 of the Statement of Defence, the Defendants had averred that the aforesaid Mebea Trucks were released to 5th Defence Witness (Palmer Sodje) after the 5th Defence Witness (Palmer Sodje) had satisfied the 4th Defence Witness (the Divisional Police Officer - Lasisi Adeleke Akande, C.S.P.) that he (the 5th Defence Witness - Palmer Sodje) was the OWNER.

 

(ii)     There is no distinction between 5th Defence Witness (Palmer Sodje) and his trade name - 'Star Enterprises Company of Nigeria.'

 

2.      The learned trial Judge erred in law and on the facts to have held that the right to immediate possession of the 2 (two) Mebea Trucks, the subject-matter of this suit, remained in the company represented by 5th Defence Witness (Palmer Sodje) and thereby come to a wrong decision.

 

PARTICULARS OF ERROR OF LAW

 

(i)      From the pleadings filed in this suit, neither the ownership and/or possession of the aforesaid Mebea Trucks were ever vested in ANY company represented by the 5th Defence Witness (Palmer Sodje).

 

(ii)     Throughout the pleadings filed in this suit, no where was a company incorporated under the law referred to or mentioned. Indeed, throughout, only trade or business names were referred to or mentioned.

 

(iii)    5th Defence Witness (Palmer Sodje) at all times relevant to this suit, traded or did business in the name of 'Star Enterprises Company of Nigeria.'

 

3.      The learned trial Judge erred in law and on the facts to have held that because the release of 2 (two) Mebea Trucks, the subject-matter of this suit, to the 5th Defence Witness (Palmer Sodje), was on the instructions of the 4th Defence Witness (the Divisional Police Officer) the Defendants who were sub-ordinates could not therefore be liable in tort.

 

PARTICULARS OF ERROR OF LAW

 

(i)      On these findings, the Defendants and their Police boss are joint-tortfeasors and are EACH personally liable for the tort committed.

 

(ii)     The aforesaid instructions by the 4th Defence Witness (the Divisional Police Officer) are manifestly unlawful.

 

4.      The judgment of the learned trial Judge, is against the weight of evidence.

 

Dr Mowoe, in pursuance of these grounds of appeal, submitted that the learned trial Judge failed to make any finding as regards the agreement the appellant claimed was between him and Palmer Sodje over the ownership of the trucks after 13th November 1972. The learned Judge also failed, learned Counsel submitted further, to make a finding as to whether the mebea trucks did belong to Palmer Sodje or this company, the Star Enterprises.

 

Mr Onokughetor, learned Counsel representing the respondents, rightly in our view, conceded that the issue of ownership was not specifically decided by the learned Judge:

 

We think, the most important issue in this case is the determination as to whether or not an agreement existed between the appellant and Palmer Sodje, vesting the ownership of the mebea trucks in the appellant on failure of Palmer Sodje to refund, by 13th November 1972, the money deposited with him. If there was such agreement, and Palmer Sodje failed to honour its terms, then it is clear to us that the ownership in the trucks would have vested in the appellant by 13th November 1972 and the respondents would be obliged to return to him on his demand for their return after the criminal investigation or his action for detinue. Indeed, this was the case of the appellant. Paragraph 7 and 8 his statement of claim read-

 

7.      Plaintiff further explained that about 8th November 1972, as a result of intense pressure on Mr Palmer Sodje by plaintiff, to pay up the said debt of #1,000, Mr Palmer Sodje authorised plaintiff to collect two mebea trucks which were then parked in Mr Palmer Sodje's place. The firm agreement between plaintiff and Mr Palmer Sodje was that if by 13th November 1972, Mr Palmer Sodje did settle the said debt in full, to plaintiff, the two brand-new mebea trucks will become the absolute property of plaintiff.

 

8.      By 13th November, 1972, Palmer Sodje did not liquidate the said debt (and has indeed not done so till this very moment) and so in accordance with the terms of the said agreement between Mr Palmer Sodje and plaintiff, the ownership of the two mebea trucks become absolutely in plaintiff'.

 

The appellant, as we earlier said in this judgment, led evidence in pursuance of these paragraphs and the respondents called Palmer Sodje who said that the appellant in fact removed the mebea trucks without his prior knowledge. The learned trial Judge, notwithstanding the evidence before him, made no finding whatsoever on this all important issue of the alleged agreement. He ignored the evidence before him and, with respect, went off tangent by searching for evidence in writing, witness to the transaction or even the ignition keys of the trucks though he himself considered this last aspect not to be essential. He concluded by saying that there was no sufficient evidence before him from the appellant of this ownership of the two mebea trucks.

 

In our view, the appellant led sufficient evidence on the matter but the learned Judge foiled to direct his mind to the real core of the case that is, making on the evidence before him and resolving the issue of the agreement. Until a finding on that alleged agreement is made, and the issue resolved, the court could not determine the ownership of the trucks, an issue the learned Judge himself rightly considered essential to the determination of the case.

 

For these reasons, this appeal must succeed and as the learned trial Judge failed to make use of the opportunity of seeing the witness before him to determine the issue of the alleged agreement between the appellant and Palmer Sodje, there shall be a retrial.

 

The appeal is allowed. The judgment of Akhigbe J., in Suit No. V/31/73, delivered on 24th September 1975, including his order as to costs, is hereby not aside. There shall be a retrial of the case before another Judge. The appellant is awarded costs of this appeal, assessed at N217. Costs in the High Court shall abide the retrial.