Uche Nwokedi & Anor. V. Mr. Fred Egbe (2004)

LawGlobal-Hub Lead Judgment Report

SULEIMAN  GALADIMA, J.C.A.

 is an appeal by the defendants in the court below, against the ruling of the High Court of Lagos State, delivered by the Honourable Justice Ade Alabi on 20/6/95. The respondent as plaintiff had instituted an action against the appellants as defendants at the High Court claiming jointly and severely the sum of N100,000.00 (One hundred million Naira) as damages for injurious falsehood.
The injurious falsehood was contained in a letter written by the appellants to solicitors in England (Messrs Sears, Tooth and Co.) which was tendered in evidence in an action No. 6163/91 “Caroline Egbe v. Fred Egbe”. Consequent thereto, the sum of (#1,690,000) was awarded against the respondent.

The respondent aggrieved by this action of the appellant instituted action against the said appellant at the lower court claiming damages in the sum of N100,000,000.

In the course of the proceedings at the lower court, the appellant filed a motion dated 1/11/94, praying the lower court to dismiss the action with costs on the ground that the particulars of claim disclosed no reasonable cause of action; that the plaintiffs action was frivolous, vexatious and otherwise an abuse of the court process. The plaintiff filed counter-affidavit to the said motion. In a ruling of 20/6/95, the lower court held that plaintiff’s action was competent, sustainable, in law and disclosed reasonable cause of action.

Being dissatisfied with the ruling, appellants have appealed to this court and filed six grounds notice of appeal from which they distilled two issues for determination, set down below as follows:
“1. Does Order 22 rules 2 and/or 4 of the Civil Procedure Rules of Lagos, 1972, limit the court to examine the writ of summons and statement of claim only, and no other pleadings or processes filed in support or opposition of the application?
2. In an application under Order 22 rule 4 brought by a defendant, can the court properly and effectively consider the application without reviewing the facts averred to and relied upon by the parties, and which facts gave rise to the application?

On his part, the respondent adopts the two issues formulated by the appellants.

On 15/1/2004, this appeal was heard. Learned Counsel for the appellants, Uche Nwokedi, Esq. referred us to their brief of argument deemed filed 7/10/2002 and the reply brief filed on 9/12/2002. He urged us to allow the appeal. Having adopted the brief of argument filed on behalf of the respondent learned Counsel B.A. Onyekwere, (Mrs.) urged us to dismiss the appeal and remit the case to the lower court for hearing on the merit.

In considering this appeal, I will take the two issues formulated for determination by the parties serially.

In the first issue the question is whether Order 22 rules 2 and/ or 4 of the High Court of Lagos State (Civil Procedure) Rules of Lagos State 61, Laws of Lagos State, 1972, limits the court to examine the writ of summons and statement of claim only and no other pleadings or processes filed in support or in opposition in an application for striking out statement of claim and dismissing an action on the ground of not disclosing reasonable cause of action. Order 22 is in pari material with the new Order 23 of the High Court of Lagos State (Civil Procedure) law Cap. 61, Laws of Lagos State, 1994. It provides as follows:

Proceedings in Lieu of Demurrer
1. Demurrer abolished
Points of law may be raised by pleadings.

2. Any party shall be entitled to raise by his pleading any point of law and, unless the court or a Judge in chambers otherwise orders, any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.

Dismissal of action.

3. If in the opinion of the court or a Judge in chambers, the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counter-claim, or reply therein, the court or Judges may thereupon dismiss the claim, or reply.

Therein, the court or Judge may thereupon dismiss the action or make such other order therein as may be just.