Ada Maude Bankole Bright V. H. C. Bankole Bright (1943)
LawGlobal Hub Judgment Report – West African Court of Appeal
Appeal from Practice—Pleadings—Wife’s separate property—Claim againstJudgmenthusband–Statute of Limitations pleaded—husband’s statusof theSupremeas trustee not pleaded.
The facts are fully set out in the judgment.
II. J. L. Boston for Appellant.
E. F. Luke (with him S. A. Benka-Coker) for Respondent.. The following joint judgment was delivered :-
KINGDOM, C.J., NIGERIA, MARTINDALE AND BRACE, JJ.
In this case the claim of the plaintiff-appellant was for :—
” 1. A declaration that the household furniture and personal ” effects which were in her house at No. 27, Garrison Street, Freetown, ” and recently removed therefrom by the defendant are her separate ” property.
” 2,. An injunction to restrain the defendant from dealing with ” the said furniture and personal effects in any way inconsistent with ” the plaintiff’s right of ownership.
- A return of the said furniture and personal effects to the “
- Damages for detention and removal of the said goods “.
In his defence the defendant-respondent pleaded, inter alia, that the claim was statute barred by the Statute of Limitation,
1623, Section 3. The soundness or otherwise of this plea was argued upon the pleadings and in the result the learned Chief Justice, who tried the case, upheld the plea and dismissed the action.
Against that decision the plaintiff appeals to this Court, and her main ground of appeal is that the Court should have upheld the contention, which her counsel put forward by argument, that the defendant, her husband, could not plead the Statute because by operation of law he was her trustee in respect of the prtglerty claimed.
The learned’ Chief Justice, rightly, in our opinion, rejected this contention on the ground that the plaintiff’s pleadings did nol, aver that the defendant was her trustee and nowhere disclosed that she relied upon such relationship. He says in his judgment :—
” There is no averment in the Statement of Claim that in regard ” to any of these goods the legal estate of ownership was not in the ” plaintiff but in her husband as her trustee at the date the cause ” of _ action arose or afterwards. It is averred that the goods in ” question, at the date when the cause of action arose, were her ” furniture and personal effects ‘. She says they were hers in fact, ” and by law they could be at that date so there is no reason why the ” Court should not accept her allegation of ownership at the material ” date “.
Order XX Rule 4 of the Rules of Court provides that ” Every ” pleading shall contain x x x a statement x x x of the material ” facts on which the party pleading relies. x x x “. The fact, if it was a fact, that defendant was plaintiff’s trustee was not only material but vital to the plaintiff’s case; if she intended to rely upon it, it was essential that she should aver it in her 13leading; and this is no mere technicality due possibly to an oversight. If the averment had been made, it obviously might (and respondent’s counsel tells us certainly would) have been rel,utted by a counter-averment on the part of the defendant. This being so we agree with the learned Chief Justice that it was not competent to plaintiff’s counsel to argue the points of law involved on the basis that defendant was plaintiff’s trustee, but that he was bound by the pleadings.
We need only add in regard to ground 3 of the Grounds of Appeal that we agree with the learned Chief Justice’s finding that the cause of action arose in April or May, 1932.
The appeal is dismissed with costs to be taxed.