Henry Stephens Engineering Company Ltd V. S.A. Yakubu (Nigeria) Limited (2002)

LawGlobal-Hub Lead Judgment Report

GEORGE ADESOLA OGUNTADE, J.C.A. 

The respondent was the plaintiff in suit No. LD/277/92 and the appellant the defendant. The plaintiff had claimed “the sum of N750,000.00 from the defendant being money due and payable to the plaintiff for the wrongful conversion of its concrete mixer S/NO 300/I0R 5781 and for damage suffered by the plaintiff for loss of use of same.”

The plaintiff filed the writ of summons on 8/9/92 along with its statement of claim. In reaction the defendant filed an application pursuant to Order 22 rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1972 praying for an order dismissing plaintiff’s suit. The grounds for the application to dismiss the suit were set out thus:

“1. That the facts and matters relied on in support of this action occurred more than six (6) years before the issue of the writ in this case and the claim (if any, which is denied) is barred by Limitation Law Cap. 70, Laws of Lagos State, 1973.

2. That the action is vexatious and constitutes an abuse of the process of the court.”

The defendant did not file an affidavit in support of its application. The plaintiff however filed a four-paragraph counter affidavit. Obadina, J. (as he then was) heard the application on 26/1/94 and delivered a ruling thereupon on 11/3/94. He dismissed the defendant’s application on the ground inter alia that the same was premature. Dissatisfied, the appellant brought this appeal. In the appellant’s brief filed, the issues for determination were identified as these:

“(i) Whether the appellant was in the circumstance obliged to first file a statement of defence before raising the point that the respondent’s action was statute-barred?

(ii) Was the learned trial Judge right in holding that the respondent’s claim disclosed a reasonable cause of action?

(iii) Was the learned trial Judge right in dismissing the appellant’s application.”

The respondent’s issues for determination are these:

“(a) Was there a wrongful conversion of the respondent’s property by the appellant in 1984.

(b) Whether the appellant was in the circumstances obliged to first file a statement of defence raising the point that the respondent’s action was statute-barred?

(c) Was the learned trial Judge right in dismissing the appellant’s application.”

The appellant’s three issues for determination could be conveniently taken together. I shall so take them. The appellant who was the defendant before the lower court had brought an application that the plaintiff’s suit be dismissed on the ground that the plaintiff’s suit was statute-barred. At the time the defendant brought the application, it had not filed a statement of defence. The lower court as I observed earlier dismissed the defendant’s application. In dismissing the said application, the lower court relied on Chief S.A. Dada & Ors. v. Otunba Adeniran Ogunsanya & Ors. (1992) 3 NWLR (Pt. 232) 754 at 764 – 765. The relevant passage reproduced from that judgment by the trial Judge reads:

“Order 22 had five limbs. The first abolished demurrer, the second and the third provide for points of law to be raised by pleadings and disposed of by the Judge, if successful, under rules 2 and 3. Therefore an issue of locus standi may be so raised and disposed of. They cannot however be so raised under rule 4 which deals with striking out a claim and pleadings where no reasonable cause of action or answer is disclosed or where the action is shown to be frivolous or vexatious.