Henry Stephens Engineering Ltd V. S.A. Yakubu (Nig) Ltd (2009)

LAWGLOBAL HUB Lead Judgment Report

F. OGBUAGU, J.S.C.

This is another Interlocutory appeal against the Judgment of the Court of Appeal, Lagos Division (hereinafter called “the court below”) delivered on 29th April, 2002, dismissing the appeal to it by the Appellant. Dissatisfied with the said Judgment, the Appellant, has further appealed to this Court on, three Grounds of Appeal. Without their particulars, they read as follows:

(1) The learned Justices of the Court of Appeal erred in law when they held as follows:

“……In paragraph 9 of the Statement of Claim, it was pleaded that the deposit paid to the defendant was made in three installments the last of which was made on 21/10/86.

It is manifest therefore that by the contract of the parties themselves, the obligation of the defendant to commence repair work and to return the equipment to the plaintiff would only mature subsequent to 21/10/86 when the last installment of the deposit was made. The conversion, if any, of plaintiff’s equipment could not therefore have arisen earlier than 21/10/86.

(2) The learned Justices of the Court of Appeal erred in law when they affirmed the decision of the trial Court and held that the action of the Plaintiff was not statute barred and that it disclosed a reasonable cause of action.

(3) The averment in paragraph 10 of the Statement of Claim that the Plaintiff made a demand for the return of the equipment from May 1984 must be read subject to the averments in paragraphs 5 and 9 of the Statement of Claim”.

The facts of this case, are simple. The Respondent as Plaintiff in Suit No. LD/277/92 in the High Court of Lagos, sitting in Lagos, claimed from the Appellant, the sum of N750,-000.00 being money due and payable to the Respondent, for the wrongful conversion of its concrete mixer and for damages suffered by the Respondent for the loss of use of the said mixer. After the service of both the Writ of Summons and the Statement of Claim on the Appellant, who did not file a Statement of Defence, but instead, filed a motion pursuant to Order 22 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1972 (hereinafter called “the Rules”) praying for an order dismissing the said suit.

The grounds for the application are:

“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”.

I note that the Respondent, filed a counter-affidavit in which paragraphs 3 and 4, read as follows:

“3. That Plaintiff made a payment of N2, 000.00 to the defendant on 21/10/86 which the Defendant accepted and issued a receipt thereon.

4. Although the concrete mixer and compressor were delivered to the Defendant in 1984, the Defendant on 29/10/86 in reply to a letter from the Plaintiff wrote and undertook to return the said items of machinery in due course”.

[The underlining mine]

I will therefore, pause here to state that it is now settled that failure to swear to a further-affidavit where there is a counter-affidavit which is unchallenged, it is deemed that the counter-affidavit, is admitted as being correct. In other words, where there is an unchallenged counter-affidavit evidence, the court is at liberty, to accept it as true and correct. See the cases of Jumbo Nwanganga & 5 ors. v. Military Governor of Imo State & 2 ors. (1987) 3 NWLR (Pt.59) 182 @ 193 C.A. and Attorney-General orPlateau State v. Attorney-General of Nassarawa State (2005) 4 SCNJ 120 @ 175; (2005) 4 S.C. 55.