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.

Obadina, J. (as he then was), heard the application and dismissed it on the ground that it was premature. On appeal to the court below, that court, also dismissed the appeal on the ground that the trial court, correctly found that the Respondent’s Statement of Claim, disclosed a reasonable cause of action. It is against this decision, that the instant further appeal, has been brought.

The Appellant, has formulated only one issue for determination namely,

“Were the learned Justices of the Court of Appeal right in all the circumstances in holding that the Respondent’s claim for conversion was not statute barred”

The above issue has been adopted by the Respondent in its Brief.

When this appeal came up for hearing on 24th February, 2009, the leading learned counsel for the Appellant – Akinlawon (Mrs.), adopted their Brief. He/she told the Court that there is only one issue for interpretation as regards Sections 8(4) and (14) of the Limitation Law of Lagos State and whether the court below, was right in holding that the action, was not statute barred. He/she referred to page 4 paragraph 10 of the Statement of Claim and submitted that it is a case of conversion and not on contract. That, that is, the cause of action. That the Respondent, are bound by their pleading. Learned counsel referred to paragraph 11 of the said claim which she stated refers to a contract. He/she urged the Court, to allow the appeal.

Akerele, Esqr, – learned counsel for the Respondent, also adopted their Brief. He told the Court that they used the word conversion in their claim. That they did not claim on the basis of contract. He referred to the meaning of conversion and stated that this was/is not applicable in this case. He also referred to paragraph 12 of the Statement of Claim at page 5 of the Records and stated that in 1986, the Appellant took their money and still kept their goods. He urged the Court, to dismiss the appeal. Thereafter, the Court was minded to give on the Bench Judgment, but because of the fuss or forceful reference by Mrs. Akinlawon as to the import of Section 14 of the said Law, Judgment was reserved till to-day.

The real or crucial issue to be determined in my respectful view is, whether the said action of the Respondent, was/is statute-barred as claimed by the Appellant. In order to determine the said issue, it will be necessary for me, to reproduce some of the relevant or material averments in the Statement of Claim. I shall reproduce paragraphs 9, 10, 11, 12 and 13 thereof. They read as follows:

“9. Immediately upon, and from time to time after the said delivery of the said items of plant and equipment to them, the 1st Defendant demanded performance by the Plaintiff of the condition-precedent or material pre-condition mentioned in paragraph 6(1) above, (namely, the payment of a deposit), and in compliance with this demand, the Plaintiff avers that they did pay the Defendant the specific sums and on the specific dates shown in the table below and the Defendant took possession of the Plaintiff’s items of plant and equipment accordingly.

Particulars

Date Amount of Deposit Paid to 1st Defendant

(i) 11.4.84 N3, 000.00 (vide Defendant’s Receipt No. 4651 of 11.4.84).

(ii) 10.10.86 N2, 400.00 (vide Defendant’s receipt No. 8855 of 10.10.86)

(iii) 21.10.86 N2,000.00 (vide Defendant’s receipt No….. of 21.10.86)

10. The Plaintiff states that during the period of May 1984 to date, he has orally demanded the return of his (sic) Concrete Mixer and Compressor on numerous occasions, but states that the Defendant his failed to return them to him.
11. By their letters dated the 28th of April 1986 and the 22nd of October 1986 respectively, and by their Solicitors letter dated the 20th of October, 1987 (all written to the Defendant), the Plaintiff demanded from the Defendant the return of their items of machinery and equipment referred to in paragraph 4(i) and (ii) above.
12. By the Defendant’s letters dated the 16th of October, 1986 and the 2gth of October, 1986 and delivered to the Plaintiff, the Defendant undertook to return the said items of machinery and equipment the property of the Plaintiff to their rightful owner in due course.
13. The Plaintiff however avers that from the diverse dates referred to in paragraphs 10-12 hereof up until the time of the commencement of these proceedings, the Defendant has refused to return the same and has wrongfully detained and/or still detains the same, whereby the Plaintiff has suffered loss and damage.

Particulars of Damages

N300, 000.00 – value of Winget Concrete Mixer

N200, 000.00 – value of Compressor

N250, 000.00 – for loss of use of the equipment

Total N750,000.00

WHEREUPON the Plaintiff claims 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. 300/1035781 and for damage suffered by the Plaintiff for loss of use of same”.

As can be seen from the above in paragraph 10 of the Claim, an oral demand by the Respondent, was made to the Appellant for return of the item or equipment, during the period of May, 1984. But in paragraph 11 thereof, the Solicitors of the Respondent, wrote two letters – one dated 28th April, 1986 followed by another letter dated 20th October, 1987. In paragraph 12, the Appellant, re-acted to the said demand by their two letters dated 16th October, 1986 and 29th October, 1986, respectively, undertaking to return the said items of machinery and equipment of the Respondent, in due course. At the time the Respondent sued in September, 1992, the Appellant had not made good of their said undertaking. In view of these clear and unambiguous averments in the said Statement of Claim, could it be honestly said or stated that the cause of action began to run from 1984 as has been done by the Appellant in this case up to this Court I think not. The court below, – per Oguntade, JCA (as he then was), was very clear when it correctly or rightly in my respectful view, held at page 45 of the Records inter alia, as follows:

“…….A period of six years under the Limitation Law when computed from 21/10/86 would enable the plaintiff to have validly brought its suit sometime in October, 1992 at the earliest. Viewed from that angle, plaintiff’s suit which was filed on 8/9/92 could not have been statute barred It would be unfair to tie the plaintiff only to May, 1984 without the benefit of evidence at the trial……….”

See also the finding of fact and holding of the court below, reproduced in ground 1 of the Appellant’s Notice of Appeal earlier reproduced by me in the beginning of this Judgment. I note that it was in the circumstances of the issues before it, that His Lordship had to state at the same page 45 of the Records as follows:

“. .. … .. It is therefore my view that the lower court was right to have concluded that the plaintiff’s Statement of Claim disclosed a cause of action.”

In the case of Chief S.A . Dada & 3 ors. v. Otunba Adeniran Ogunsanva & anor. (1992) 3 NWLR (Pt.212) 754; (1992) 4 SCNJ 162 this Court – per Kawu, JSC. @ 765, held inter alia, as follows:

” Determining reasonable cause of action in so doing, it is irrelevant to consider the weakness of the plaintiffs claim. What is important is to examine the averments in the pleadings and see if they disclose some cause of action or raise some questions fit to be decided by a Judge – See the case of Irene Thomas v. Dr. Olofosoye (1986) 1 NWLR (Pt.18) 669′.

On the duty on a party seeking to strike out pleadings for failure to disclose a cause of action, – Olatawura, JSC – @ 767 – 768, of the above case, held, inter alia, as follows:

“When pleadings have been filed, a party resorting to Order 22 of the High Court of Lagos State (Civil Procedure) Rules, (as was/is the case in the instant case leading to this appeal), must ensure that the pleadings disclose no reasonable cause or action”.

[The underlining mine]

As to when the court is obliged to strike out a Statement of Claim which discloses no cause of action, see the cases of Adimora v. Ajufo & ors. (l988) NSCC Vol.19 (pt.1) 1005; (1988) 3 NWLR (Pt.80) 1,’ (1988) 6 SCNJ 18 and Alhaji Ibrahim v. Mr. Oshin (1988) NSCC Vol. 19 (Pt.1) 1184; (1988) 3 NWLR (Pt.82) 257,’ (1988) 6 SCNJ 203, just to mention but a few.

In the said suit leading to the instant appeal, there is the said counter-affidavit of the Respondent which is a part of the Records. It is now settled that affidavit evidence, constitutes evidence and any deposition therein not challenged, is deemed admitted. See the cases of Ajomale v. Yaduat & anor. (No.2) (1991) 5 NWLR (Pt.191) 226 @ 282-283; (1991) 5 SCNJ. 178 and Magnusson v. Koikoi (l993) 12 SCNJ 114.

Frankly speaking, this is a most worthless appeal. The hearing of the suit which was instituted since September, 1992, is yet to commence. The Appellant, it is obvious to me, is using this frivolous application, to have the suit dismissed on the porous and laughable ground that it is statute-barred and as a ploy to frustrate the hearing of the case on its merits. I wish this ‘suit on the facts, should have been brought on the undefended List. I say this because, up till now, the Appellant is yet to return to the Respondent, its equipments and machinery. It is now about seventeen (17) years, since the suit was initiated.

I have a feeling that this appeal may have been brought, because of the dismissal of the Appellant’s said motion by the trial court. But I agree with the court below, when it stated at page 48 of the Records that,

“The order dismissing the defendant’s case was only ‘final’ to the extent to which it barred the defendant from bringing the same application at that stage of the proceedings. It could not be regarded as final for all purpose”.

As to the effect or consequences of either a striking out or a dismissal of a motion, perhaps, See the cases of Irogbu v. Ugbo (1970 – 71) 1 ECSLR 162 – per Aniagolu, J. (as he then was); Nzekwu v. Nzekwu & 2ors. (1977) 1 ANLR 224 @ 226 citing the case of Bozson v. Altrineham Urban Council (1903) 1 K.B. 547 @ 548 – per Lord Alverstone, C.J.; Alhaji Mohammed & ors. v. Olawunmi & 11 ors. (No.3) (l993) 5 SCNJ 126 @ 135 and The Vestry of Paddington (1880) 5 Q.B.D. 368.

Since the trial court as affirmed by the court below, held that the Respondent’s Statement of Claim, discloses a cause of action, the hearing of the suit, can now proceed unimpeded. This appeal I believe, has strengthened my desire or insistence that interlocutory applications, should end at the Court of appeal in order to save parties, the agonies or stress of putting on hold by the adversary or opponent, of a clear, or simple and legitimate relief or reliefs sought by a Plaintiff.

However, in view of the averment in paragraph 13 of the Statement of Claim, I will refrain from commenting on or dealing with it. This is because, if I do so, I mayor will be pre-empting the decision of any trial court that will eventually try the suit. Whether the action is in conversion or detinue, it remains a live issue, more so or since the Appellant, up till now, is still in custody of the said equipment and machinery of the Respondent which it, long undertook to return to the Respondent, but has still not done so.

In conclusion, this appeal lacks substance and merit. It hopelessly, with respect, fails and it is accordingly dismissed with N50,000.00 (Fifty Thousand Naira) costs in favour of the Respondent payable to it by the Appellant.

I hereby and accordingly, affirm the decision of the court below dismissing the said Appellant’s motion/application.

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SC.153/2002