Martchem Industries Nigeria Ltd. v. M. F. Kent West Africa Ltd. [2005]



Martchem Industries Nigeria Ltd. v. M. F. Kent West Africa Ltd. [2005] – SC

by NSA PaulPipAr


The Appellant’s appeal was upheld by the Supreme Court. It held that the defence by the respondent that it had no contractual agreement with the Appellant was not proved by the respondent. Further, the respondent brought no single evidence before the trial court. Only the Appellant (who was the plaintiff) brought evidence before the trial court; and the evaluation of those evidence scale the appellant.


– Sale of goods.

⦿ TAG(S)

– Contract.
– Detinue.


Martchem Industries Nigeria Ltd.


M. F. Kent West Africa Ltd.


[2005] 23 (20 MAY 2005);


Supreme Court


Oguntade, JSC.





⦿ FACT (as relating to the issues)

The appellant was the plaintiff at the Kano High Court where it claimed against the respondent, as the defendant, for the following reliefs:- “(a) An immediate delivery of the one doz. 50 KVA generator which is the most important item purchased by the plaintiff from the defendant. (b) Receipt of payment to the defendant by the plaintiff the sum of N556,500 plus the documents of purchase of the two (2) generators and other goods purchased by the plaintiff from the defendant. (c) The sum of N8,000 per day as rent due and payable to the plaintiff by the defendant from 9 September 1994 to the date of delivery of the generator to the plaintiff or judgment in this sit.”

The plaintiff filed an amended Statement of Claim dated 4 November 1996. The defendant had filed a Statement of Defence dated 28 November 1994. The case was heard by Ubhaonu, J.

At the hearing, the plaintiff called four witnesses in support of its case. The defendant, although granted several adjournments to enable it put across its defence, did not call any evidence. On 3 December 1997 the trial Judge granted the claims of the plaintiff in his judgment. The defendant was dissatisfied with the judgment of the trial court.

It brought an appeal against it before the Court of Appeal, Kaduna Division (hereinafter referred to as “the court below”). On 15 December 1999, the court below in its unanimous judgment allowed the defendant’s appeal. The judgment of the trial court was set aside and plaintiff’s claims dismissed.

The plaintiff was dissatisfied with the judgment of the court below. It has brought this appeal against it before this Court.


1 Whether the Court of Appeal was right to hold that the appellant had failed to establish a claim in detinue.

2 Whether the Court of Appeal was right to hold that the trial court erred in failing to evaluate evidence of the appellant before reaching its decision.

3 Whether the Court of Appeal was correct to interfere with the findings of the trial court by re-evaluating the evidence.





i. The plaintiff had pleaded in its Statement of Claim the fact upon which the above piece of evidence was given. The defendant had its Counsel in court when the evidence was given. The defendant did not call evidence to show that it had no account at the Credit Lyonnais, Lagos Street, Kano, or that the sum of N300,000 was not paid into its account on 9 September 1994 as shown in Exhibit 1. No evidence was called by the defendant that payment made in the name of F.M. Kent did not or would not be credited to it. It is therefore, an irrelevant consideration to say that because Exhibit 1, a teller, bears the name M.F. Kent instead of the defendant’s known name M.F. Kent West Africa Ltd, no payment was made to the defendant.

Available:  James Afolabi v. The State [2016]

ii. In reacting to the reasoning of the court below and respondent’s Counsel, it is important to bear in mind that the evidence called by the plaintiff/appellant was unchallenged. Although the defendant/respondent pleaded that he had no contract with the plaintiff/appellant, that averment at the end of the trial was not made out, as the defendant/respondent did not call any evidence in support of it. Averments in a pleading do not amount to evidence, which a court could rely upon.

iii. In his evidence, PW1 said at page 29 of the Record: “I then was asked to go and carry the goods. I went and hired a vehicle that would carry the generator when I brought a vehicle to carry the generator, the defendant said that I should carry only one generator that was not in good condition, that before I should have finished carrying the generator that was not good and the containers, they would release the other good Generator to me. I left the good generator of 50 KVA Doz engine and carried the containers and the 64 KVA that was not in good condition. I paid N256,500 to the defendant in the defendant’s office and the other N300,000 was paid to the defendant’s bank. When I went to carry the other generator Doz 50 KVA, the defendant refused to release same saying that they had not got another generator to release that one for me.” The above evidence shows that the contract of sale was fully completed. The plaintiff/appellant fully paid and took delivery of all the goods he bought except the 50 KVA generator, the subject-matter of this dispute. The understanding between the parties as given in evidence was that the 50 KVA generator could be collected last after the plaintiff/appellant had taken delivery of the other goods. This was to allow the defendant/respondent procure an alternative generator. Both parties on the evidence agreed on this arrangement. Given this state of affairs, could it be said that there was no contract of bailment between the parties as would ground an action in detinue? I think not.


S. 16 Court of Appeal Act.


In Alhaji Garba G. Haruna v. J.D. Salau (1998) 7 NWLR (Part 559) 659, I said concerning unchallenged evidence: “The argument that because the plaintiff’s evidence was unchallenged, judgment should be given in his favour is patently unsound. It is trite that in an action, the evidence of a plaintiff may be so weak and so discredited under cross-examination that it is unnecessary for the defendant to testify. It is also trite that the evidence given by the plaintiff even if unchallenged, may still be insufficient to sustain the claim made by the plaintiff. In the case at hand, no reasonable court or tribunal could have given judgment in favour of the plaintiff when the plaintiff had by his own mouth given evidence that he agreed to sell his property to the defendant and that he had been paid the agreed purchase price.”

Available:  The Attorney-General, Ogun State v. Alhaja Ayinke Aberuagba (1985)

General and Finance Facilities Ltd v. Cooks Cars (Romford) Ltd [1963] 2 All ER 314 at 317-318, Diplock, LJ discussed the distinctions between conversion and a cause of action in detinue thus:- “There are important distinctions between a cause of action in conversion and a cause of action in detinue. The former is a single wrongful act and the cause of action accrues at the date of the conversion; the latter is a continuing cause of action which accrues at the date of the wrongful refusal to deliver up the goods and continues until delivery up of the goods or judgment in the action for detinue. It is important to keep this distinction clear, for confusion sometimes arises from the historical derivation of the action of conversion from detinue sur bailment and detinue sur trover; of which one result is that the same facts may constitute both detinue and conversion. Demand for delivery up of the chattel was an essential requirement of an action in detinue and detinue lay only when at the time of the demand for delivery up of the chattel made by the person entitled to possession the defendant was either in actual possession of it or was estopped from denying that he was still in possession. Thus, if there had been an actual bailment of the chattel by the plaintiff to the defendant the latter was estopped from asserting that he had wrongfully delivered the chattel to a third person or had negligently lost it before demand for delivery up and the plaintiff could sue in detinue notwithstanding that the defendant was not in actual possession of the chattel at the time of the demand.”

In his book: Jones on Bailment (1ed) Sir Williams Jones classified bailments into five classes namely –
1. Depositum or the deposit of a chattel with the bailee who is simply to keep it for the bailor without reward.
2. Mandatum, where the bailee has, without reward, to do something for the bailor to or with the chattel bailed.
3. Commodatum, where the bailor, without recompense lends a chattel to the bailee for him to use.
4. Pignus, sometimes called vadium or pawn, where the bailee holds the chattel confided to him as a security, for loan or deed or the fulfilment of an obligation.
5. Locatio conductio where chattels are levied for reward.






Averments in a pleading do not amount to evidence, which a court could rely upon. – Oguntade, JSC. Martchem v. Kent (2005)


The plaintiff’s case was an action in detinue. A claim in detinue, in order to succeed, must meet certain technical requirements of law. It is therefore necessary and important for the Judge to satisfy himself that the evidence called satisfied the requirements of law. It is certainly not in consonance with the law to say that in every case in which the evidence called in support of the plaintiff’s case is unchallenged, judgment must be given in favour of the plaintiff. On the contrary, it is possible and there are several known examples that evidence called in support of plaintiff’s case even if unchallenged may still be insufficient to sustain plaintiff’s claims. – Oguntade, JSC. Martchem v. Kent (2005)

Available:  Adamu v. Attorney General Of Borno State (CA/J 57/94, 16 April 1996)

The court below in reacting to the very unsatisfactory manner in which the trial court gave judgment in favour of the plaintiff said: “I agree with the submission of the learned Counsel for appellant that even where the evidence is one way in that the other party did not lead evidence in proof of averments in its statement of defence the court is not relieved of its bounding duty to consider and evaluate the body of evidence adduced by the plaintiff before ascribing probative value to the pieces of evidence tendered. The trial court must ascertain that the evidence before it is credible, admissible and goes into (sic) issue before giving judgment to the plaintiff. It is not sufficient, even where the evidence is only one way, as in this case, to give judgment to the plaintiff by merely summarising the evidence adduced. The learned trial Judge is required to ascribe probative value to the witnesses, review and evaluate the evidence tendered before him. It is only after this exercise that the plaintiff will be entitled to judgment: Okebor v Police Council (1998) 9 NWLR (Part 566) 534, 544-5; Haruna v Salau (1998) 7 NWLR (Part 559) 653, 659 and Nwabuoku v Ottih (1961) All NLR 487, Balogun v United Bank of West Africa (1992) 6 NWLR (Part 247) 336, 354.” I think that the court below was right in the views it expressed in the passage reproduced above. Even if, as was the case here, the evidence in a case went in one direction in that it was unchallenged, the trial Judge is still expected to examine whether or not the unchallenged evidence was sufficient to establish the claims made by the party in whose favour the unchallenged evidence was given. – Oguntade, JSC. Martchem v. Kent (2005)

In the instant case, since the defendant led no evidence in support of its defence that it had no contractual relation with the plaintiff but with Ali Kura Enterprises, that defence had been abandoned. Averments that had been abandoned cannot be supported by evidence. Such evidence goes to no issue. – Edozie, JSC. Martchem v. Kent (2005)

Even if it was the defendant’s case that the money was not paid into its account, it would have been estopped from leading evidence to that effect because it was the Managing Director of the defendant Mr Jerry Clune who took the plaintiff’s Director to the bank and directed him to pay the money into the defendant’s account. The plaintiff having made payment upon that representation, the defendant could not be heard to say that the account into which it advised the plaintiff to pay was not its account. The finding by the Court of Appeal that the plaintiff offered no consideration for the Doutz 50 KVA generator was with respect erroneous. – Edozie, JSC. Martchem v. Kent (2005)




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