HENRY STEPHENS ENGINEERING COMPANY LTD v. S.A. YAKUBU (NIGERIA) LIMITED(2002)

HENRY STEPHENS ENGINEERING COMPANY LTD v. S.A. YAKUBU (NIGERIA) LIMITED

2002)LCN/1166(CA)

In The Court of Appeal of Nigeria

On Monday, the 29th day of April, 2002

CA/L/351/97

 

JUSTICES

GEORGE ADESOLA OGUNTADE   Justice of The Court of Appeal of Nigeria

PIUS OLAYIWOLA ADEREMI   Justice of The Court of Appeal of Nigeria

CHRISTOPHER MITCHELL CHUKWUMA-ENEH   Justice of The Court of Appeal of Nigeria

Between

 

HENRY STEPHENS ENGINEERING COMPANY LIMITED Appellant(s)

AND

S.A. YAKUBU (NIGERIA) LIMITED Respondent(s)

 

GEORGE ADESOLA OGUNTADE, J.C.A. (Delivering the Leading Judgment): 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.
In other words the issue of locus standi, being a point of law to be disposed of before the trial Judge.”
After stating the above passage, the trial Judge reasoned in this manner:
“In this present case before the court, the plaintiff filed a statement of claim. The defendant has not filed any statement of defence raising the issue of statute of limitation or that the case is statute-barred. In other
words, is the issue that the action is statute-barred before the court as of now. I do not think so.
The issue of statute of limitation being a point of law to be disposed of before trial falls within rules 2 and 3 of Order 22 and ought to be raised by pleadings and disposed of by the court if successful.
In determining whether or not a statement of claim discloses a reasonable cause of action, it is irrelevant to consider the weakness of the plaintiff’s claim. What is important is to examine the averments in the pleadings and see if they disclose some cause of action or raise some question fit to be decided by a Judge – Thomas v. Olufosoye (1986) 1 NWLR (pt. 18) 669 at 765.
As to whether the plaintiff’s pleadings disclose a reasonable cause of action, having carefully perused the
plaintiff’s statement of claim, especially paragraphs 3 to 10 thereof, I have no doubt at all that the statement of claim disclose some reasonable cause of action.
It should however be pointed out that in considering the issue of disclosure of a cause of action, it is irrelevant to consider the weakness of the plaintiff’s claim.
On the whole, I think the application is premature, misconceived and is therefore dismissed.”

In the appellant’s brief, it was argued that the lower court was wrong in dismissing the defendant’s application. It was submitted that an action which was statute-barred would necessarily disclose no cause of action; Egbe v. Adefarasin (No. 1) (1985) 1 NWLR (Pt. 3) 549; Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546. It was further submitted that a statute-barred action was also vexatious and therefore unsustainable A.-G., Duchy of Lancaster v. L & N.W.  Rly (1892) 3 CH 274 at 277.
Appellant’s counsel conceded that in determining whether a plaintiff’s case disclosed a cause of action, the court would look only at the statement of claim; Shell B.P. Petroleum Co. of Nigeria Ltd. & Ors. v. Onasanya (1976) 6 SC 89 at 94; Ibrahim v. Osim (1988) 3 NWLR (Pt.82) 257, (1988) 19 NSCC (Pt.1) 1184 at 1191.
As to the time to bring an application to dismiss, counsel referred to Onibudo v. Akibu & Ors. (1982) 7 SC 60 at 75; Bolaji v. Bamgbose (1986) 4 NWLR (Pt. 37) 632; Odive v. Obor & Anor. (1974) 9 NSCC 103; Fadare v. A.-G., Oyo State (1982) 4 SC at 1.
In its argument in support of the 2nd issue for determination, appellant has argued that the factual situation upon which the plaintiff relied to sustain its claim had come into existence more than six years before the plaintiff sued. The plaintiff’s action was therefore statute-barred, counsel submitted: Sections 8(4) and 14 of Limitation Law Cap. 70, Laws of Lagos State, 1973; Letang v. Cooper (1964) 2 All ER 929; Egbe v. Adefarasin (supra).
Finally, appellant’s counsel argued that, even if the lower court was right to hold that the defendant’s application was premature, the lower court ought only to have struck out the application and not dismissed it; Ceekay Traders Ltd. v. General Motors Ltd. (1992) 2 NWLR (Pt. 222) 132 at 162; General Oil Ltd. v. Ogunyade (1997) 4 NWLR (Pt. 501) 613 at 622.
The respondent in its brief observed that the appellant’s arguments that the plaintiff’s case was statute-barred was predicated on the assumption that the cause of action accrued to the plaintiff in May 1984 whereas in reality the cause of action could only have arisen sometime after 21/10/86. Counsel discussed the nature of the tort of conversion relying on Owena Bank (Nig.) Ltd. v. N.S.C.C. Ltd. (1993) 4 NWLR (Pt. 290) 698; Halsbury’s Laws of England, 3rd Edition, Volume 38 at p. 775 paragraph 1286; Ojini v. Ogo Oluwa Motors (Nig.) Ltd. (1998) 1 NWLR (Pt. 534) 353; Evans v. Bell (1847) 10 L.T.O.S. 709.
Respondent’s counsel further submitted that to be able to raise the issue of limitation in the circumstances of this case the defendant ought first to have filed a statement of defence under Order 22 rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 1972. Counsel relied on Lasisi Fadare v. A.-G .. Oyo State (1982) 4 SC 1; Harkins v. Hillhead (1636) Cro. Car 401; Ronex Properties v. John Laing Construction (1983) QB 398; Lawrance v. Lord Norreys (1890) 15 Appeal Cases 210 at 219; Willis v. Earl Beauchamp (1886) 11 PD 59; Norman v. Matters (1916) 85 LJKB 857 at 859; Dyson v. Attorney-General (1911) 1 KB 410 at 419.
Finally, the respondent submitted that even if the lower court had been mistaken in its reasoning that the defendant’s application could not be properly brought under Order 22 rule 4, that mistake should not lead to the reversal of the lower court’s conclusion in its finding that the plaintiff’s statement of claim disclosed a reasonable cause of action. Counsel submitted that it was not every mistake made by a court that would lead to a reversal of the ruling/or judgment made: Alhaji Aliyu Ibrahim v. Judicial Service Committee, Kaduna State & Anor. (1998) 14 NWLR (Pt. 584) 1 at 47 and Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386 at 400.
In this judgment, I intend to determine first whether or not there was material before the lower court upon which it could have come to the conclusion that the plaintiff’s suit was statute-barred. This conclusion could only have been hinged validly on the statement of claim and a consideration of the Limitation Law of Lagos State, 1973.
Sections 8(4) and 14 of the Limitation Law Cap. 70, Laws of Lagos State, 1973 provide:
“8(4) Subject to the provisions of section 9 of this Law, an action founded on tort shall not be brought after the expiration of six (6) years from the date on which the cause of action accrued.
14. Where-
(a) any cause of action in respect of the conversion or wrongful detention of a chattel has accrued to any person, and
(b) before here covers possession of the chattel a further conversion or wrongful detention takes place, then, subject to section 22 (relating to actions to recover settled chattels) of this Law, no action shall be brought in respect of the further conversion or wrongful detention after the expiration of six years from the accrual of the cause of action in respect of the original conversion or wrongful detention”.
The question that must follow is:
When did the cause of action accrue to the plaintiff? It is undisputed that the plaintiff commenced the proceedings against the defendant on 8/9/92. In paragraphs 5 to 12 of the statement of claim, the plaintiff averred:
5. “by an agreement entered into between the plaintiff (for the one part) and the defendant (of the other part), the 1st defendant agreed, (in consideration of the payment to them by the plaintiff of an agreed fee) to undertake the service, repair and re-spray works of various items of plant, machinery and equipment, all the property of the plaintiff, and to be delivered to them by the plaintiff for the afore-stated purposes.
6. The plaintiff further contends that the material conditions of the said agreement (express or implied) between themselves and the defendant included inter alia the following terms:
(i) That prior-payment of an initial deposit in an amount to be determined by the defendant would be made in their favour by the plaintiff immediately upon their receipt of the said items of plant and machinery, and before the commencement of the contracted works or repairs.
(ii) That after performance by the plaintiff of the condition stipulated in paragraph 6(i) above, the defendant would effect the said repairs, servicing and re spray works within a reasonable time of their taking possession of the plant and machinery (for those purposes only).
(iii) That the defendant would restore the said items of plant, machinery and equipment to the possession of the plaintiff, their true owner, immediately upon completion of the contracted works or repairs, said restoration likewise to be made within a reasonable time, and in exchange for the balance monies still outstanding in the defendant’s favour for the works, which shall then have become payable.
(iv) That the defendant would under no circumstance surrender possession of the said items of plant and equipment to any person or persons other than the plaintiff, or save with and under the plaintiff’s express directions.
7. In addition to the implied term or condition referred to in paragraph 6(iv) above, and agreed between the parties, the plaintiff further states that by their letter dated the 28th of April, 1986 addressed and delivered to the defendant, they specifically directed that none of their items of plant/machinery surrendered to the defendant was to be removed from the defendant’s premises without the express authority in writing of the plaintiff to the like effect.
8. In pursuance of the said agreement referred to in paragraphs 5 – 7 above, the plaintiff states that on or about the 11th day of April, 1984, they delivered 12 items of plant and equipment (of which they are the owner), and including those items specifically described in paragraphs 4(i) and (ii) above to the defendant for the specific purposes stated in those paragraphs.
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 precondition mentioned in paragraph 6(i) 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.1/10/86)
10. The plaintiff states that during the period of May 1984 to date, he has orally demanded the return of his Concrete Mixer and Compressor on numerous occasions, but states that the defendant has failed to return same to him.
11. By their letters dated the 28th of April, 1986 and the 22nd of October, 1986 respectively, and by their solicitor’s defendant), the plaintiff demanded from the defendant the return of their items of machinery and equipment referred to in paragraphs 4(i) and (ii) above.
12. By the defendant’s letters dated the 16th of October, 1986 and the 29th 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.”

It is important to bear in mind that in paragraph 6 of the statement of claim reproduced above, it was pleaded that to enable the defendant commence repair works on the plaintiff’s equipment, the plaintiff needed to make a pre-paid deposit. It was only after the deposit had been paid that the defendant would commence repair work. In paragraph 9 of the statement of claim, it was pleaded that the deposit paid to the defendant was made in three instalments 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 instalment of the deposit was made. The conversion, if any, of plaintiff’s equipment could not therefore have arisen earlier than 21/10/86.
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.
It would seem therefore that from a point of logic, paragraph 10 conflicts with paragraphs 5 and 9 of the statement of claim. This would appear to have introduced a confusion into the matter which it might be necessary to settle one way or the other at the trial. 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. It is therefore my view that the lower court was right to have concluded that the plaintiff’s statement of claim discloses a cause of action.
In this connection, I gratefully adopt the statement of Fletcher Moulton, L.J in Dyson v. A.-G. (1911) 1 KB 410 at 419 where he said:
“To my mind, it is evident that our judicial system would never permit a plaintiff to be “driven from the judgment seat” in this way without any Court having considered his right to be heard, excepting in cases where the cause of action was obviously and almost incontestably bad”.
The jurisdiction to peremptorily strike out a case on the ground that the plaintiff’s statement of claim discloses no cause of action must be cautiously and slowly exercised. It has the potential of denying a plaintiff the right to be heard. Where therefore, the situation is uncertain and equivocal as in the case, it could not be said that the plaintiff’s case was obviously and incontestably bad.

The next question is whether in any case the plaintiff’s suit could be terminated under Order 22 rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1972. The said Order 22 reads:
“1. No demurrer shall be allowed.
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.
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 Judge may thereupon dismiss the action or make such other order therein as may be just.
4. The Court or a Judge in Chambers may order any pleading to be struck out, on the ground that it discloses
no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Judge in Chambers may order the action to be stayed or dismissed or judgment to be entered accordingly, as may be just.
5. No action or proceeding shall be open to objection, on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not.”
Now, although rule 2 of the above Order 22 enables parties to a dispute to raise in their pleadings points of law which can then be disposed of at or after the trial, it does not lay it down that at all events, a defendant who wishes that the plaintiff’s pleading be struck out on the ground that the same discloses no cause of action or is frivolous or vexatious, should first file a statement of defence. It must be pointed out however that in cases where a defendant relies on the Limitation Law as a ground to strike out the plaintiff’s case, it is necessary to first file a defence if in order to sustain the objection on limitation, it is necessary to discuss issues of fact. The exception to this would arise where the plaintiff’s by his statement of claim has admitted facts which clearly reveal that the claim is statute-barred.
In Casimir Odive v. Nweke Obar & Anor. (1974) 2 SC 23 at 31, the Supreme Court took the view that a preliminary objection founded on the ground that the plaintiff’s statement of claim disclosed no cause of action could only be properly raised after the delivery to the defendant of the statement of claim and before the filing of the statement of defence. However in Lasisi Fadare & Ors. v. A.-G., Oyo State (1982) 4 SC 1 at 19 the Supreme Court said:
” … the preliminary point of law can be taken after the receipt of the statement of claim and before any defence is filed. The party in such a case relies on point of law even if the issues of fact in the statement of claim are conceded.
If he fails, an order would be made by the court ordering the filing of a statement of defence and the suit would proceed to trial.”
That the above dictum of the Supreme Court was applicable to cases commenced in Lagos State was made manifest in Alhaji I.A Onibudo & Ors. v. Alhaji A.W. Akibu & Ors. (1982) 7 SC 60 at 77 where the Supreme Court observed:
“In the Lagos State, from where this case originated, similar provision has been made which would have enabled the defendant to peremptorily have the case struck out or dismissed, without filing their statement of defence, or going into any form of trial. It is Order 22 of the High Court of Lagos State (Civil Procedure) of Nigeria Rules, Cap. 52, Vol. III of the Laws of the Lagos State, 1973. Rule 4 of the said Order which particularly applies, stipulates that: …”
The application by the defendant before the lower court that the plaintiff’s suit be dismissed on the ground that it disclosed no reasonable cause of action and/or is frivolous/vexatious was brought under Order 22 rule 4. In A-G., Duchy of Lancaster v. L & N.W. Rly (1892) 3 CH 274 at 277, a suit which is “frivolous and vexatious” has been interpreted as one which is obviously unsustainable.
A plaintiff who brings a suit which is statute-barred is bringing a suit which is frivolous and vexatious. For obvious reason such a suit would disclose no reasonable cause of action. The defendant in such a case could therefore bring an application pursuant to Order 22 rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1972 that the suit be peremptorily terminated. The lower court was therefore in order to have stated that the defendant needed to have first filed a statement of defence.

Finally, appellant’s counsel has contended that rather than dismiss the defendant’s application, the lower court should have struck it out. I do not see any merit or substance in that argument.
The lower court having held that the plaintiff’s case disclosed a reasonable cause of action had to pronounce on the merit of the application before it as at that stage. The fact that the plaintiff’s case was held to disclose a reasonable cause of action at that stage would not create any bar or estoppel from contending later in the proceedings after a full hearing that the plaintiff’s case be dismissed on the ground that it was statute-barred. 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 purposes.
In the light of what I have said above and the fact that the lower court correctly found that the plaintiff’s statement of claim disclosed a reasonable cause of action, the appeal must fail. It is accordingly dismissed. I make no order as to costs.

PIUS OLAYIWOLA ADEREMI, J.C.A.: I have had the opportunity to read before now the judgment just delivered by my learned brother, Oguntade, JCA. All the issues and the detailed principles of law applicable have been well articulated in the judgment that I do not have anything to add. I adopt the judgment as mine. I also dismiss the appeal without cost.

CHRISTOPHER MITCHELL CHUKWUMA-ENEH, J.C.A.: I agree.

Appeal dismissed.

 

Appearances

B.R. Fasola, Esq.For Appellant

 

AND

M.B. Idris – Kutigi, Esq.For Respondent

 

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