JAGAL PHARMA LIMITED v. ALH. SALISU HUSSAINI & ANOR
(2013)LCN/6441(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 24th day of July, 2013
CA/K/129/2011
RATIO
POSITION OF THE LAW WHERE THERE IS NO APPEAL AGAINST ANY SPECIFIC FINDING OF FACT BY A TRIAL COURT
It is settled law that where there is no appeal against any specific finding of fact made by a trial Court, the finding remains unassailable and is binding on the parties – Amale V. Sokoto Local Government (2012) 5 NWLR (pt 1292) 181, SCC (Nigeria) Ltd v. Anya (2012) 9 NWLR (pt 1305) 213, Uwazurike V. Nwachukwu (2013) 3 NWLR (pt 1342) 503, Nwaogu V. Atuma (2013) 11 NWLR (pt 1364) 117. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
FACTS TO BE ESTABLISHED TO ENTITLE A PERSON TO EXERCISE A RIGHT OF POSSESSION UNDER THE RIGHT OF LIEN
To entitle a person to exercise a right of possession of goods under the right of lien, adverse to the right of the owner of the goods, the following must be established (i) that he is in possession of the goods, as no legal lien can arise until possession has been obtained by the person claiming the lien Langley Beldon & Gaunt Ltd V. Morley (1965) 1 Lloyd’s Rep 297 at 305-306. The Narada (1977) 1 Lloyd’s Rep 256 at 257. The Gregos (1985) 2 Lloyd’s Rep 347 at 361, (ii) that his possession under the original delivery of the goods to him was lawful, as possession derived from the wrongful act of a third person is generally insufficient to found a legal lien – Bowmaker Ltd v. Wycombe Motors Ltd (1946) 2 ALL ER 113, Tappenden v. Artus (1964) 2 QB 185 at 195; (iii) that the person has remained in continuous possession of the goods, and there is no inherent right in any third person that inhibits the person from maintaining such continuous possession – Great Eastern Railway Co v. Lord’s Trustee (1909) AC 109, Pennington v. Reliance Motor works Ltd (1923) 1 KB 127, The Freightline one (1986) 1 Lloyd’s Rep 266 at 272; and (iv) that the debt which gives rise to the lien has become due, not accruing – Wehner v. Dene steam Shipping Co (1905) 2 KB 92 at 101, Dyson v. Peat (1917) 1 Ch 99. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUSTICES
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
JAGAL PHARMA LTD Appellant(s)
AND
1. ALH. SALISU HUSSAINI
(A.K.A. SALISU MAI MAGGI)
2. DEPUTY SHERIFF
HIGH COURT OF JUSICE, KADUNA Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the final judgment of the High Court of Justice, Kaduna State delivered on 27/4/2010 by T. Zailani J.
The brief facts of the case leading to this appeal are that the 1st Respondent as Plaintiff at the trial Court filed suit No. KDH/KAD/510/07 against the Appellant and the 2nd Respondent as Defendants in the trial Court claiming the following reliefs:
“A. A DECLARATION that the judgment of the Court of Appeal in Appeal No. CA/K/239/2000 setting aside the judgment in suit No. KDH/KAD/560/99 and striking out the said suit for want of jurisdiction of the trial Court is not executory and therefore cannot be a basis for issuance of writ of attachment against the properties of the Plaintiff.
B. A DECLARATION that the Plaintiff has not been adjudged liable by the said judgment of the Court of Appeal in Appeal No. CA/K/239/2000 to pay the 1st Defendant the sum of N3, 250,000 to warrant the issuance of writ of attachment against his properties.
C. A DECLARATION that the payment of the sum of N3, 250,000 by the 1st Defendant to the Plaintiff was made pursuant to the judgment in suit No. KDH/KAD/569/99 and after the setting aside of same by the Curt of Appeal in Appeal No. CA/K/239/2000 for want of jurisdiction, the Plaintiff has a right of lien on the said sum and entitled to retain the said sum in exercise of his right of lien.
D. A DECLARATION that the 1st Defendant is indebted to the Plaintiff in the sum of N3,250,000 being money had and received for a consideration that has failed and which said indebtedness is extinguished by the retention of the said sum by the Plaintiff
E. AN ORDER of injunction in perpetuity restraining the Defendants from taking any steps pursuant to the judgment of the Court of Appeal in Appeal No. CA/K/239/2000 with a view to levying execution on the properties of the Plaintiff.”
Both the 1st and 2nd Defendants at the trial Court filed their respective statements of Defence wherein the Appellant as 1st Defendant contended inter alia that the suit filed against them by the Plaintiff was statute barred. It also raised a counter-claim against the Plaintiff and same is hereby adumbrated as follows:-
COUNTERCLAIM
“15. The 1st Defendant avers that upon the success of its appeal in appeal no CA/K/239/00 against the decision in suit no KDH/KAD/560/99 which appeal judgment was read on 17/4/07 it exercised its right based on the same judgment to ask for and to have a refund of the sum of N3,250,000 paid pursuant to satisfy the judgment in suit no KDH/KAD/560/99 which was set aside on 17/4/07.
16. The 1st Defendant avers that it demanded a refund of the said N3, 250.000 and the costs of N5,000 awarded against the Plaintiff in appeal no CA/K/560/99 and the Plaintiff instead of refunding the money instituted this action and kept the said money wrongfully from the 1st Defendant.
IN THE PREMISES, the 1st Defendant claims from the Plaintiff a refund of the sum of N3,250,000 paid to the Plaintiff as a judgment-debt pursuant to suit no KDH/KAD/560/99 the basis of the same having been nullified on 17/4/07 by the Court of Appeal in appeal no CA/K/239/00, as well as payment of the N5,000 costs awarded”.
The 2nd Defendant now the 2nd Respondent did not file any process and did not participate in the proceedings at the trial Court. Before the filing of suit No. KDH/KAD/510/07 by the 1st Respondent which is the subject of the instant Appeal, the 1st Respondent had by way of suit No. KDH/KAD/560/99 instituted an action against the Appellant at the High Court of justice, Kaduna under the undefended procedure claiming the sum of N3,250,000 being the sum paid to the Appellant for the supply of 500 cartons of Tetmosol soap and for which the Appellant failed and/or refused to supply.
The trial Court in its ruling awarded the sum of N3,250,000 in favour of the 1st Respondent against the Appellant in addition to 10% interest on same and costs of N5000.
The Appellant dissatisfied with the said judgment appealed to this Court, in Appeal CA/K/239/00. The Appeal was allowed on the ground of want of jurisdiction. The 1st Respondent having failed to apply for and obtain leave of the trial Court to place the case on the undefended list.
Sequel to the judgment of this Court in Appeal CA/K/239/00, the Appellant by a letter dated 2/11/2007 written by its solicitors demanded for the refund of the judgment debt of N3,250,000 paid to the 1st Respondent and threatened to levy execution on the property of the 1st Respondent in the event of failure to comply, Upon the receipt of the letter, the 1st Respondent filed suit No. KDH/KAD/510/07 against the Appellant and the 2nd Respondent claiming that the judgment of the court of Appeal did not make any pronouncement on the substantive issue of the Appellant’s indebtedness to him. It was also claimed that there was no order to refund the sum of N3, 250,000 paid to the 1st Respondent by the Appellant pursuant to the judgment in suit No. KDH/KAD/560/99. The Appellant in its defence filed a counterclaim, that since the judgment upon which the sum of N3,250,000 was paid has been set aside, the Appellant is entitled to the refund of the said sum from the 1st Respondent.
At the conclusion of proceedings in the said suit No. KDH/KAD/510/07, the trial Court granted all the reliefs sought by the 1st Respondent and equally dismissed the counter claim of the Appellant.
Dissatisfied with the said judgment, the Appellant appealed to this Court.
In accordance with the rule of this Court, the Appellant and the 1st Respondent filed their respective briefs of arguments in this appeal.
The 2nd Respondent failed or neglected to file his brief of argument in this Appeal. The Appellant by a motion on notice dated 7th January 2013 and filed on 8/1/2013 prayed the Court for an order allowing the appeal to be heard on the Briefs filed by the Appellant and 1st Respondent alone. The application was granted on 22/1/2013.
The Appellant brief of argument was prepared by John Omughele Esq. and from the five grounds of Appeal contained in its Notice of Appeal dated 27th July 2010. The three issues for determination of this Appeal were raised. The said issues are hereby adumbrated as follows:
“1. Whether or not the 1st Respondent’s suit in the Court below was not an abuse of process having regard to suit No. ID/1521/99 in the High Court of Lagos State at Ikeja in which he maintains defence and counter-claim on the same transaction as that heard in the Court below. (Ground 1).
2. Whether or not the Court below was right in upholding the 1st Respondents’ claim to exercise a lien over the sum of N3,250,000 paid to him by the Appellant pursuant to the judgment in suit KDH/KAD/560/99 which was set aside by the judgment of this Court in Appeal No. CA/K/239/00, and if the answer is in the affirmative whether the 1st Respondent’s action was not status barred. (Grounds 2, 3 and 4).
3. Whether or not the Court below was right in dismissing the Appellant’s counterclaim for refund of money paid by it to the 1st Respondent pursuant to the judgment in suit No. KDH/KAD/560/99 which was set aside for want of jurisdiction in appeal No. CA/K/239/00 and for the payment of the costs awarded by this Court. (Ground 5).
The 1st Respondent in his brief of argument prepared by O. I. Habeeb Esq. submitted two issues for the determination of this Appeal. The issues reads as follows:
“1. WHETHER on the State of Pleadings and evidence led by the parties, the trial Court is justified in affirming the exercise of lien by the 1st Respondent in respect of the judgment sum of N3,250,000.
2. WHETHER the suit No. KDH/KAD/510/07 filed by the 1st Respondent can be said to constitute an abuse of judicial process?”
The 1st Respondent also raised Preliminary Objection to the competence of the notice and ground of appeal filed by the Appellant. The ground of the objection is that the said ground 1 of the notice of Appeal is narrative, argumentative and verbose contrary to the provisions of Order 6 Rule 2(3) of the Court of Appeal Rules 2011.
It has been argued on behalf of the 1st Respondent that the Appellant had argued the said ground in the ground itself by canvassing that the determination of the issue of the pending suit No. ID/1521/99 was important to the determination of the issue of abuse of process of Court.
Learned counsel submitted that to the extent that ground one of the Notice and Grounds Appeal is offensive to the provision of order 6 Rule 2(3) of the Rules of this Court 2011, same ought to be struck out together with the Appellant’s issue one distilled from the said ground. The Court was referred to the cases of Kalu v. Uzor (2006) 8 NWLR (pt. 981) page 66 at 85;
Tiza v. Begha (2005) 15 NWLR (pt. 949) page 616 at 646.
The Appellant in reply to the Preliminary Objection contended that the Preliminary Objection attacked only the first ground of appeal, not the entire appeal. Learned counsel for the Appellant argued that if the preliminary objection succeeds, it would not terminate the entire appeal as there are other grounds of appeal. He argued that in such a case a motion to strike out the ground ought to have been filed. He referred the Court to the case of Clement Odunukwe v. Dennis Ofomata (2010) 12 SCNJ 516 at 528.
He submitted that Order 10 rule 1 of the rules of this Court 2011 requires that even if this was a case where a Preliminary Objection and not a motion to strike out the offensive ground ought to have been filed. He maintained that the 1st Respondent merely argued on objection he did not file. He contended that the Apex Court faulted this kind of procedure adopted by the 1st Respondent in the case of Alimi Akanbi Dada v. Jonathan Dosunmu (2005) 9 SCNJ 31 at 68 – 69. Learned counsel urged the Court to follow the decision in the two cases referred to above and to hold that the preliminary objection is incompetent.
It was further argued on behalf of the Appellant that the Preliminary Objection even if considered, the complaint of the Appellant on the 1st ground of Appeal is clear. Learned counsel contended that the ground is not vague and that the 1st Respondent was able to frame his second issue from it, because of the clarity of the ground.
The learned counsel argued that once it is possible to make a sense out of a ground of appeal, then that ground is valid. He contended that another test is whether taking the ground as stated, the other side, is left in no doubt as to what the complaint of the Appellant actually is. The Court was referred to the case Aigbobahi v. Aifuwa (2006) 2 SCNJ 61 at 71 – 72.
Learned counsel maintained that the essence of a ground of appeal is to appraise the opposite party of the complain being raised therein. The Court was referred to the case of Arewa Paper Converters Ltd v. NIDC Ltd (2006) 7 SCNJ 457 at 467.
He submitted that there is no misapprehension as to the complaint conveyed by the first ground and that the preliminary objection should be dismissed, not having been properly raised and being incompetent and/or without merit.
The ground of Appeal under attack is reproduced for ease of reference thus:
“3. GROUNDS OF APPEAL
(1) The learned judge misdirected himself in law in the view he expressed that the pendency of suit No. ID/1521/99 at the Ikeja High Court was not important to the determination of the Plaintiff’s claim and the 1st Defendant/Appellant’s claim and the 1st Defendant/Appellant’s counter claim before him, when the pendency of that suit was important in determining whether or not the Plaintiff’s claim to keep the sum of N3,250,000 paid to him by the 1st Defendant/Appellant pursuant to the judgment of the Kaduna High Court in suit No KDH/KAD/560/99 which was set aside by this Court in appeal No. CA/K/239/2010 (sic) as lien for alleged failure of consideration in respect of a contract to supply tetmosol by the 1st Defendant/Appellant to the Plaintiff/Respondent was an abuse of process”.
The rule of Court which this ground Appeal was said to have violated is Order 6 rule 2(3) of the Court of Appeal rules 2011 and it reads follows:
“The Notice of Appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to reply at the hearing of the Appeal without any argument or narrative and shall be numbered consecutively”.
A look at the way the Appellant couched ground one in his notice of appeal, reveal that the ground is not only argumentative but also vague and narrative. The Court gave an insight into how a good ground of Appeal should be. In the case of Kalu v. Uzor (2006) 8 NWLR (pt. 981) page 66 at 85, it was held that:
“A ground of appeal must not be argumentative or narrative in compliance with Order 3 rule 2 of the Court of Appeal Rules 2002.
If it is, it ceases to be a ground of appeal but an argument or narrative which rightful place in a proceedings of a Court/tribunal is at the hearing of the Appeal. In no way should the particulars be independent complaints from the appeal itself but should be auxiliary to it.
Any ground of appeal which is argumentative, unnecessarily lengthy elaborate, vague and which contain detailed reasons may be struck out”.
Similarly it was held by the Apex Court in the case of Tiza v. Begha (2005) 15 NWLR (pt. 949) 616 at 646 thus:
“It is well settled that a ground of appeal must set out concisely and distinctly the complaint’s of the Appellant against the decision appeal against and upon which he intends to rely without any argument or narrative…”
I have carefully examine ground one of this appeal and its particulars and have found that the said ground one is argumentative and narrative and as such not in compliance with the provisions of order 6 rule 2(3) of the rules of the Court of Appeal 2011.
The examination of ground one also revealed to me that it did not disclose any error or misdirection committed by the trial Court.
The essence of a ground of appeal is to appraise the opposite party of the nature of the complaint being raised. In the instance appeal the Appellant from the way it couched ground one of appeal, it can not be said to have properly disclosed the nature of its complaint against the decision of the trial Court. Since ground one of the notice of appeal is defective the corresponding issue one formulated from it and the arguments lack the foundation to stand on. Both ground one of the notice of appeal and the issue one formulated therefrom are hereby struck out.
Now having disposed of the Preliminary Objection attention will now be directed at the issues for determination of this appeal.
Issue one having been struck out the Appellants’ remaining issue 2 and 3 are remembered to read issues 1 and 2 respectively.
The issues as distilled by the Appellant are adopted for determination of this appeal. It is apparent from the facts revealed in this appeal that the first issue is capable of resolving the dispute between the parties to this appeal.
It has been submitted by the learned counsel for the Appellant on this issue that it is common ground that the Appellant paid the N3,250,000 to the 1st Respondent pursuant to a judgment of a lower Court in a suit No. KDH/KAD/560/99 and that on appeal to the Court of Appeal the Appellant was successful.
The 1st Respondent in another suit KDH/KAD/510/07 claimed that he was not to refund the N3,250,000 to the Appellant and the Court below agreed that he keep it because the Appellant had not supplied Tetmosol soap for which it was paid. It was agued that a lien never created a cause of action as a matter of law. The Court was referred to the case of Livestock Feeds Plc v. Okezie (2002) 10 NWLR (pt. 775) page 341 at 354. It was contended that if the lower Court had properly appreciated and applied the decision of this Court in Livestock Feeds Plc v. Okezie, (supra) it would have come to the conclusion that a lien was not available.
Learned counsel argued that before the decision of this Court on 17/4/07, the money was “rightfully” in the possession of the 1st Respondent, and the legal basis was the judgment in suit KDH/KAD/560/99 after the decision of this Court, the money was not rightfully “in the possession of the 1st Respondent and the legal basis was the judgment in appeal No. CA/K/239/00 which set aside the judgment of the lower Court, He argued that before the judgment of the Court of Appeal, the 1st Respondent never depended on lien as a basis for retaining the money and that the assertion of a lien commenced with the judgment. Learned counsel insisted that a lien can not stand in the presence of the judgment of the Court of Appeal.
On the question whether the action of the 1st Respondent was statute barred, learned counsel contended that if the Court accepts that the liability which the 1st Respondent asserted as a basis for the lien arose in 1999, and that the action being for the recovery of money, then time began to ran, for the purpose of section 18 of the limitation law of Kaduna State, 1999, which bars such action after five years. The instant action arose in 1999 and terminated in 2004. Learned counsel argued that the judgment in appeal No. CA/K/239/00 annuls case No. KDH/KAD/560/99 on the ground of jurisdiction. He submitted that the proper thing was for the 1st Respondent to have prosecuted his counter-claim in suit No. ID/1521/99.
Learned counsel maintained that the claim of the 1st Respondent being recovering action and statutes barred, there would be no lien to assent as the defence to the Appellant’s counter-claim.
In his response to the argument presented by the Appellant on the first issue, learned counsel for the 1st Respondent referred a Court to the judicial definition of the word lien in the cases Livestock Feeds Plc v. Okezie (2002) 10 NWLR (pt. 775) page 361 at 364;
Afrotech Service Nig Ltd v. MIA & Sons Ltd (2000) 15 NWLR (pt. 692) page 730 at 786 and
Halbury’s Laws of England vol. 28 (4th Edition) paragraph 702.
Learned counsel submitted that it is beyond dispute that the 1st Respondent had paid the sum of N3, 250,000 to the Appellant for supply of 500 cartons of tetmosol soap for which the Appellant failed to supply.
Learned counsel for the 1st Respondent conceded that the payment of the sum of N3,250,000 by the Appellant to the 1st Respondent was sequel to the judgment obtained by the 1st Respondent against the Appellant in suit No. KDH/KAD/560/99, which said judgment was set aside on technicality, in appeal No. CA/K/239/00 on ground of want of jurisdiction of the lower Court. He argued that the said sum represents the sum of money earlier given to the Appellant by the 1st Respondent for the supply of 500 cartons of Tetmosol Soap, which the Appellant failed and or refused to deliver or supply to the 1st Respondent.
Learned counsel maintained that regardless of setting aside of the judgment in suit No. KDH/KAD/560/99, the 1st Respondent is entitled to hold on unto the said sum of N3,250,000 as lien in relation to the 500 cartons of tetmosol soap which the Appellant had failed and or refused to supply.
He argued that by holding unto and retaining the said sum of N3,250,000 the 1st Respondent is for all intent and purposes exercising a right of lien within the con of judicially defined concept of lien in the case of Afrotech Services Nig. Ltd v. MIA & Sons Ltd (supra) and the definition of same in Halbury’s Laws of England (supra).
Learned counsel maintained that the judgment in Appeal No. CA/K/239/00 does not make the retention of the judgment sum by the 1st Respondent illegal or unlawful.
He argued that the judgment in Appeal No. CA/K/239/00 merely struck out the suit No. KDH/KAD/560/99 but did not consider the merit of the Appeal and did not make an order for the refund of the judgment sum of N3,250,000 paid to the 1st Respondent.
Learned counsel maintained that the conduct of the 1st Respondent in holding unto the said sum of N3,250,000 did not in any way violated any aspect of the judgment in Appeal No. CA/K/239/00.
He argued that from the reliefs sought in suit No. KDH/KAD/510/07 and the counter claim of the Appellant, the Appellant as 1st Defendant sought for an order of the trial Court directing the 1st Respondent as Plaintiff to refund the sum of N3,250,000 it paid to the 1st Respondent pursuant to the judgment in suit No. KDH/KAD/560/99 which had been set aside in Appeal No. CA/K/239/00.
The 1st Respondent as Defendant to the said counter-claim had filed a defence to the Counter-claim of the Appellant wherein he raised the defence of exercise of lien to the counter-claim.
Learned counsel to the 1st Respondent submitted that the claim of exercise of right of lien serves as a complete defence to the counter-claim of the Appellant for the refund of the said sum of N3,250,000. The Court was referred in support of this submission to the case of Chibu v. Tominas Nig. Ltd (2006) 9 NWLR (pt. 984) page 189 at 208.
Learned counsel for the 1st Respondent argued that lien as a specie of right can be claimed even if the debt is statute barred. He contended that the submission of the Appellant in relation to the issue of Statute of limitation and reliance on the provision of section 18 of the limitation law of Kaduna State 1999 is of no moment. Learned counsel cited in support of this submission the case of Livestock Feeds Plc v. Okezie (supra) at 354.
Learned counsel submitted that the 1st Respondent cause of action in relation to suit KDH/KAD/510/07 arose from the receipt of Exhibit P4, which is the letter written by the Appellant through its solicitors and located at page 60 of the printed record, wherein the Appellant threatened to levy execution on the property of the 1st Respondent. He argued that the suit No. KDH/KAD/510/07 which is the subject of the instant appeal was filed on the 12th of November, 2007 and issued on 14th November 2007. He contended that assuming without conceding that the provisions of section 18 of the limitation law of Kaduna State 1991 is applicable, the time the cause of action accrued to the date of filing of the suit is just 10 days and certainly less than the 5 years envisaged under the said law.
Learned counsel submitted that for the purposes of computing the period of limitation the date or time of accrual of cause of action is central and fundamental determinant of whether a suit is caught by statute of limitation or not.
In support of this submission he referred the Court to the cases of
Afribank Nig. Plc. V. Adigun (2009) 11 NWLR (pt. 1152) page 329 at 345 – 346;
Muomah v. Spring Bank Plc (2009) 3 NWLR (pt. 1129) page 553 at 575.
He argued that it is the aggregates of the contents of Exhibit P4 that created a situation for the 1st Respondent to have cause to institute the action in the Court below.
Learned counsel for the 1st Respondent maintained that the submission of the Appellant at page 8 of its brief of argument to the effect that money cannot be the subject of exercise of lien is misconceived. He cited in support the case of Livestock Feeds Plc v. Okezie (supra) at page 356. The Court was also referred to the definition of liquidated demand in the case of Denton – West v. Muoma (2010) 2 NWLR (pt. 1173) page 19 at 38.
It was argued on behalf of the 1st Respondent that what is held by the 1st Respondent by way of exercise of lien is the sum of N3, 250,000 and that same qualifies for a liquidated demand within the purview of items attachable by way of lien. It is submitted that from the reliefs claimed by the 1st Respondent which are five in number only reliefs C and D are tied to the exercise of right of lien.
Learned counsel submitted that it is erroneous and a complete misrepresentation of the case puts forward by the 1st Respondent at the lower Court for the Appellant to argue as it did in its brief as though the entire case and claim of the 1st Respondent were predicated on the exercise of right of lien on the sum of N3,250,000 judgment sum when in point of fact the issue of exercise of lien was just an aspect of the entire case of the 1st Respondent at the lower Court.
Learned counsel for the 1st Respondent urged the Court to resolve this issue in favour of the 1st Respondent.
The issue presented to this Court for determination is whether the lower Court was justified in affirming the exercise of lien by the 1st Respondent in respect of the judgment sum of N3,250,000.
A proper appreciation of the issue for determination will require a clear understanding of the concept of lien which appears to be the central issue under consideration.
The word lien has been judicially defined thus:
‘A lien is a right to retain that which is in one’s possession belonging to another till certain demands of the person in possession are satisfied”.
See Agrotec Tech-Service (Nig) Ltd v. MIA & Sons Ltd (2000) 15 NWLR (pt. 692) page 730 at 786. On the nature of legal lien, it has been held in Livestock Feeds Plc v. Okezie (2000) 10 NWLR (pt. 775) page 341 at 354 per Abdullahi P.C.A thus:
“A legal lien in its primary or legal sense means a right at common law in one man to retain that which is rightfully and continuously in his possession belonging to another until the present and accused claims of the person in possession are satisfied. See Hammonde v Barclay (1802) 2 East 227 at 235. (italics provided).
On the other hand, a general lien entitles a person in possession of chattels to retain them until all claims or accounts of the person in possession against the owner of the chattle are satisfied. This type of lien can only exist as a common law right arising from general usage, or by express agreement. See Green v, Farmer (1768) 4 BURR 2214 at 222 (italics provided).
It is also the law that a legal lien is a right of defence and not a right of action, and may b e claimed even if the debt is statute-barred. See Higgins v. Scott (1831) 2 B & A-D 413”.
Also in Halbury’s laws of England vol. 28 (4th Edition) paragraph 702, a legal lien is said in the primary sense to be given by law and not by Contract.
In the instant case it is not in dispute that the 1st Respondent had paid the sum of N3,250,000 to the Appellant for the supply of 500 cartons of Tetmosol soap for which the Appellant failed to supply. This circumstances led to the institution of an action for the recovery of the said sum of N3,250,000 by way of suit No. KDH/KAD/560/99 and a judgment obtained against the Appellant in favour of the 1st Respondent.
The Appellant in obedience to the judgment of the Court paid N3,250,000 to the 1st Respondent but however filed an appeal against the said decision. The Court of Appeal in its judgment in Appeal No. CA/K/239/00 set aside the decision in suit No. KDH/KAD/560/99 on technicality ground of want of jurisdiction, the 1st Respondent as the Plaintiff at the lower Court having failed to apply for and obtain leave of the lower Court to place the suit on the undefended list.
The Appellant cause his solicitors to write a letter Exhibit P4 to the 1st Respondent demanding the refund of N3,250,000 and payment also of costs of N5000, failing which execution shall, ultimately be levied against the property of the 1st Respondent.
The said Exhibit p4 at page 60 of the record of appeal is hereby reproduced for ease of reference as follows:
“CC8 Ibrahim Taiwo Road
P.O. Box 7901
Kaduna-Nigeria
062-245171
Email:magnificaljmc@ yahoo.com
JME Oughele’s Chambers
BARRISTERS SOLICITORS AND NOTARY PUBLIC
2 November 2007
Alhaji Salisu Hussaini (aka Salisu Mai Maggi)
Salisu & Sons (Nig) Limited
AV3 Benin Street
Kaduna.
Dear Sir,
REFUND OF N3,250,000 REALISTED AS JUDGMENT DEBT IN SUIT KDH/KAD/560/99
We are solicitors for Jagal Pharma Ltd:
On 15 March 2002, your solicitors Messrs Cobhan Cowan & Co through their E. A Ekanem got baliff’s of the Lagos High Court to execute the judgment given in your favour by the Honourable Justice S. H. Makeri against our client, at Lagos. To avoid the disruption of the factory operations the sum of N3,250,000 was paid at a time when our client’s appeal, appeal no CA/K/239/00, from the said judgment was pending.
On 17 April 2002 the Court of Appeal in its judgment reversed the decision based on which you had executed judgment, struck out your case and awarded N5000 costs against you Your counsel were in Court.
We now demand on behalf of our client that not later than 8 November 2007 you refund to us for our client the sum of N3,250,000 and pay also the costs of N5000 failing which execution shall, ultimately, be levied against our property.
Yours faithfully,
Signed
John Omughele”.
The 1st Respondent instead of honouring the request of the appellant contained in Exhibit P4 filed an action dated 9/11/2007 and the concurrent writ of summons was issued on 14/11/2007.
Filed along with the concurrent writ of summons is the statement of claim. The paragraphs of the statement of claim are pertinent and they are hereby adumbrated as follows:
“BETWEEN
ALHAJI SALISU HUSSAINI
(A. K. A. SALISU MAI MAGGI)
AND
1. JAGAL PHARMA LTD & ANOR
2. DEPUTY SHERIFF (HIGH COURT OF JUSTICE, KADUNA)
STATEMENT OF CLAIM
1. The Plaintiff is a business man and the alter ego of Salisu and Sons Limited the latter being an entity registered under the laws of the Federation with registered office at No AV.3 Benin Street, Kaduna.
2. The 1st Defendant is a limited liability company registered under the laws of the Federation with registered office at No 5 Ikosi Road Jagal compound Oregun, Ikeja, Lagos State.
3. The 2nd Defendant is charged with the duty of executing processes of court including judgment in the High Court of Justice Kaduna.
4. The Plaintiff states that at the instance of the 1st Defendant, he placed an order for the supply of 500 cartons of Tetmosol Soap at the rate of N6,500 per carton and accordingly paid into the account of the 1st Defendant the sum of N3,250,000 being the aggregate sum for the said 500 Cartons. Reliance shall be Placed on the 1st Bank teller evidencing payment of the said sum of N3,250,000 into the Citibank account of the 1st Defendant at trial.
5. The 1st Defendant after receipt of the said sum of N3,250,000 from the Plaintiff refused and failed to supply and deliver the 500 cartons of Tetmosol Soap necessitating the Plaintiff to institute Suit No. KDH/KAD/560/99 against the 1st Defendant.
6. The Plaintiff obtained judgment against the 1st defendant in the sum of N3,250,000 and the 1st Defendant duly paid the said judgment sum to the Plaintiff
7. The 1st Defendant had lodged an appeal against the said judgment in Appeal No. CA/K/239/2000 and the said Appeal was allowed to the effect that leave of the trial Court was not obtained before placement and hearing of the matter on the undefended list thereby depriving the trial Court of jurisdiction to entertain the suit.
8. The Plaintiff pleads that sequel to the judgment, the 1st Defendant through its counsel wrote a letter dated 2/11/07 demanding for the refund of the judgment sum of N3,250,00 from the Plaintiff on the basis of the judgment of the Court of Appeal in Appeal No. CA/K/239/2000.
9. The Plaintiff shall contend at the hearing this suit as follows:
(a) That as at the time the 1st defendant paid him the sum of N3,250,000 there was an existing and subsisting judgment in suit No, KDH/KAD/560/99 which adjudged the 1st Defendant liable to pay the Plaintiff the said sum.
(b) That the appeal to lodged by the 1st Defendant against the said judgment was allowed on the basis that the Plaintiff did not seek the leave of the trial Court before commencing the suit by way of an undefended list and therefore the trial Court lacked jurisdiction.
(c) That the judgment of the Court of Appeal did not touch on the merit of the case at the trial Court and did not also adjudge the Plaintiff liable to pay the 1st Defendant any sum of money.
(d) That the 1st Defendant has still not delivered the 500 cartons of Tetmosol Soap to the Plaintiff and therefore still liable to pay the Plaintiff the said sum of N3,250,000.
(e) That the Plaintiff is in the circumstances entitled to retain the said sum of N3,250,000 by way of lien with a view to extinguishing the 1st Defendant indebtedness to him.
(f) That to the extent that the judgment of the Court of appeal in Appeal No. CA/K/239/2000 did not pronounce the Plaintiff liable to pay the 1st Defendant the sum of N3,250,000 the 1st Defendant can not validly apply for issuance of writ of attachment against the properties of the Plaintiff and the 2nd Defendant can not validly process any writ of attached against the Plaintiff.
10. The Plaintiff shall at the trial of this suit rely on the following documents, copies of which have been annexed hereto and indeed any other relevant document.
(a) WRIT OF SUMMONS (Undefended List) together with the affidavit and annexture in suit No. KDH/KAD/560/99.
(b) First Bank teller evidencing payment of N3,250,000.
(c) Judgment in suit No. KDH/KAD/560/99 declaring the 1st Defendant liable to pay the Plaintiff the sum of N3,250,000.
(d). Judgment in Appeal No. CA/K/239/2000.
WHEREOF the Plaintiff claim as follows:
(A). A DECLARATION that the judgment of the Court of Appeal in appeal No. CA/K/239/2000 setting aside the judgment in suit No. KDH/KAD/560/99 and striking out the said suit for want of jurisdiction of the trial court is not executing and therefore can not be a basis for the issuance of writ of attachment against the properties of the Plaintiff.
(B). A DECLARATION that the Plaintiff has not been adjudged liable by the said judgment of the Court of Appeal in appeal No. CA/K/239/2000 to pay the 1st Defendant the sum of N3, 250,000 to warrant the issuance of writ of attachment against his properties.
(C) A DECLARATION that the payment of the sum of N3,250,000 by the 1st Defendant to the Plaintiff was made pursuant to the judgment in suit No. KDH/KAD/560/99 and after the setting aside of same by the Court of Appeal in appeal No. CA/K/239/2000 for want of jurisdiction the Plaintiff has a right of lien on the said sum and entitled to retain the said sum in exercise of his right of lien.
(D) A DECLARATION that the 1st Defendant is indebted to the Plaintiff in the sum of N3,250,000.00 being money had and received for a consideration that has failed and which said indebtedness is Extinguished by the retention of the said sum by the Plaintiff.
(E) AN ORDER of injunction in perpetuity restraining the defendants from taking any steps pursuant to the judgment of the Court of Appeal in Appeal No. CA/K/239/2000 with a view to levying execution on the properties of the Plaintiff.
DATED 9TH DAY OF NOVEMBER 2007”.
I have earlier said in this judgment that the 2nd Defendant did not participate in the proceedings leading to this appeal and did not file any defence to the claim of the Plaintiff at the lower Court.
The defence of the 1st defendant/Appellant to the claim of the Plaintiff/1st Respondent is contained on pages 67 – 69 of the record of appeal and same is hereby reproduced for ease of reference thus:
“KDH/KAD/510/07
BETWEEN
ALHAJI SALISU HUSSAINI – Plaintiff
AND
JAGAL PHARMA LTD & ANOR – Defendants
DEFENCE OF 1ST DEFENDANT
1. The 1st Defendant admits paragraphs 1, 2, 3, 6, 7 and 8 of the Statement of Claim and denies the other averments therein in the manner set out hereunder.
2. The 1st Defendant is engaged inter alia in the manufacture, distribution and sale of Tetmosol Mediated Soap and the Plaintiff was its customer.
3. In the course of the transactions between the Plaintiff and the 1st Defendant, the 1st Defendant instituted an action in the High Court of the Lagos State in Suit No. ID/1521/99 against the Plaintiff and some of its other customers to recover various sums of money from them.
4. The Plaintiff who was sued as the 2nd Defendant upon being served the processes in the said suit filed a defence thereto and a counter claim for the sum of N3,250,000 against the Plaintiff.
5. The Plaintiff who was sued as the 2nd Defendant upon being served the processes in the said suit filed a defence thereto and a counter claim for the sum of N3,250,000 against the Plaintiff.
6. The Plaintiff obtained judgment in Suit No. KDH/KAD/560/99 and during the pendency of the 1st Defendant’s appeal in appeal No. CA/K/239/00 against the said judgment executed the judgment and the 1st Defendant paid the Plaintiff the sum of N3,250,000.
7. The Court of Appeal allowed the appeal which it decided on the ground of jurisdiction only in favour of the 1st Defendant and awarded N5000 costs against the Plaintiff and the Plaintiff did not appeal from that judgment.
8. The 1st Defendant through its solicitors wrote to the Plaintiff demanding a refund of the sum of N3,250,000 paid and the N5000 costs as the judgment on which the payment was made had been set aside on ground of jurisdiction, in effect nullifying the basis of the payment of N3,250,000 by the 1st Defendant to the Plaintiff.
9. The 1st Defendant denies all interpolations on the said letter as an execution process or an attempt at execution and puts the Plaintiff to strict proof of the same.
10. The 1st Defendant further denies all allegations relating to alleged attempt at or execution and avers thus:
(a) The 1st Defendant has not filled in any praecipe for the enforcement of any judgment relating to the subject matter of this action whether before the 2nd Defendant or any registrar or other officer of the High Court of the Kaduna State.
(b) No writ of execution has been processed by the 2nd Defendant or any other officer of the High Court of the Kaduna State on the 1st Defendant’s behalf.
(c) No judge of the High Court of the Kaduna State has been assigned to deal with any matter consequent on the decision in appeal No. CA/K/239/00, which decision struck out suit No. KDH/KAD/560/99 heard by the Honourable Justice S. H. Makeri who is now the President of the Customary Court of Appeal of the Kaduna State.
11. Without prejudice to the foregoing averments the 1st Defendant contends that the action of the Plaintiff is state barred in the Kaduna State.
Particulars of Matter Alleged
(a) The Plaintiff alleged payment of N3,250,000 to the Plaintiff in 1999 and instituted suit No. KDH/KAD/560/99 to recover the money.
(b) The decision in appeal No. CA/K/239/00 effectually annulled suit KDH/KAD/560/99 and made no order for a re-hearing.
(c) This action is commenced 8 years after 1999, a period of more than 5 years stipulated at section 18 of the Limitation Law Cap 89 Laws of the Kaduna State 1991.
12. Without prejudice to the foregoing the 1st Defendant contends that there is no cause of action to ground a lien over the sum of N3, 250,000.
Particulars of Matter Alleged
(a) A lien is a defence and never a cause of action.
(b) A lien is not available in respect of a statute bared debt.
13. Without prejudice to the foregoing, the 1st Defendant contends that the Plaintiff cannot commence or maintain any action in relation to the sum of N3, 250,000, having counterclaimed for the money and having not obtained a judgment in respect of the same in suit No. ID/1521/99 against the 1st Defendant in the High Court of the Lagos State.
SAVE as is hereinbefore expressly admitted the 1st Defendant denies each and every allegation of fact contained in the Statement of Claim as if the same were set out and denied seriatim.
14. The 1st Defendant repeats the averment in paragraphs 1 to 13 above as if the same were set out herein.
15. The 1st Defendant avers that upon the success of its appeal in appeal No. CA/K/239/00 against the decision in suit No. KDH/KAD/560/99 which appeal judgment was read on 17/4/07 it exercised its right based on the same judgment to ask for and to have a refund of the sum of N3,250,000 paid pursuant to satisfy the judgment in suit No. KDH/KAD/560/99 which was set aside on 17/4/07.
16. The 1st Defendant avers that it demanded a refund of the said N3,250,000 and the costs of N5000 awarded against the Plaintiff in appeal No. CA/K/560/99 and the Plaintiff instead of refunding the money instituted this action and kept the said money wrongfully from the 1st Defendant.
IN THE PREMISES, the 1st Defendant claims from the Plaintiff a refund of the sum of N3,250,000 paid to the Plaintiff as a judgment-debt pursuant to suit No. KDH/KAD/560/99 the basis of the same having been nullified on 17/4/07 by the Court of Appeal in appeal No. CA/K/239/00, as well as payment of the N5000 costs awarded.
DATED the 12th day of December 2007”.
The claim of the 1st Respondent as pleaded in paragraph(d) of the statement of claim and proved have not been denied by the Appellant.
The Appellant has not exhibited any desire to either supply the 500 cartons of Tetmosol paid for by the 1st Respondent or refund the purchase price which it has collected.
I am of the opinion that the only option open to the 1st Respondent at recovering his money is to lay claim as a lien to any money of the Appellant that may come his way. The Appellant’s money in his possession which can he hold as a lien is the judgment sum paid to him in suit KDH/KAD/560/99 which has been set aside by the Court of Appeal in appeal No. CA/K/239/2000. The said judgment did not make any pronouncement on the substantive issue of the indebtedness of the Appellant to the 1st Respondent. The judgment of the Court of Appeal did not also order that the 1st Respondent refund the said judgment sum to the Appellant.
The case of Ayi Ayi Akpo & 4 ors v. Obong Otu Andong Otu & 2 ors (1986) 6 CA (pt. II) page 37 at 54 – 56 does ot support the claim of the Appellant. It has been held in that case per W.R.T. Macaulay, JCA, at page 54 thus:
“In my view, it then becomes automatic that whatever was awarded by way of damages and costs are immediately refundable.
This situation will be, and must be distinguished from a situation where the suit had been fought to finality, as in the case of Lawal v. Ijale cited elsewhere by both counsel.
Even here, the successful Appellant will recover whatever costs were awarded to him in the lower Court without having to apply for leave to do so”.
It follows therefore, that it is only what has been awarded by way of damages and costs that should be immediately refunded if a judgment is set aside.
In the present case the claim of N3,250,000 by the 1st Respondent is a liquidated sum arising from payment made to the Appellant for supply of 500 cartoons of Tetmosol Soap which it has failed to supply and has refused to refund the purchase price. What the Appellant is entitle to be refunded immediately is the costs of N5000 made against it by the lower Court in suit KDH/KAD/560/99 which has been set aside in appeal CA/K/239/2000. The Respondents is under no obligation to refund the N3,250,000 paid to him as a refund except as ordered by the Court and in the instance case no such order has been made to that effect.
I am of the opinion that the 1st Respondent had not violated any aspect of the judgment of the Court of Appeal by retaining the Judgment sum of N3,250,000 as lien pending the final decision of the lower Court in suit No. KDH/KAD/510/07 which was eventually decided in favour of the 1st Respondent.
The lower Court was correct in upholding the 1st Respondents’ claim to exercise a lien over the sum of N3,250,000 paid to him by the Appellant, pursuant to the judgment in suit KDH/KAD/560/99 which was set aside by the judgment of this Court in Appeal No. CA/K/239/00.
On the sub issue whether the 1st Respondent’s action was not statute barred, lien is said to be a specie of right that can be claimed even if the debt is statute barred.
In Livestock Feeds Plc v. Okezie (supra) at 354, it has been held thus:
“It is also the law that a legal lien is a right of defence and not a right of action, and may be claimed even if the debt is statute barred. See Higgins v. SOH (1831) 26 & A – D 413”.
In the instant case the 1st Respondent cause of action in relation to suit KDH/KAD/510/07 which is the subject of this appeal arose when the Appellant cause a letter to be written and sent to the 1st Respondent threatening him with execution if the judgment sum in suit KDH/KAD/560/99 set aside by the Court of Appeal in Appeal No. CA/K/239/00 is not refunded to it. The said letter which has been reproduced in this judgment is dated 2nd November 2007.
The writ of summons was issued on 14 November 2007. Under section 18 of the Kaduna State Limitation Law 1991, applicable to this matter, an action is statute barred if not instituted within a period of five years.
In the case of Afribank Nig. Plc v. Adigun (2009) 11 NWLR (pt. 1152) 329 at 345 – 346, the Court held thus:
“The cause of action and the time it accrues is the bedrock of the entire action. Where time is stipulated for doing a thing, it must be done within that period. I agree that the leave sought was predicated on the arrest of the 1st Respondent on May 4, 1999, that in my view was when the cause of action arose. The phrase “cause of action” comprises of every fact which is material to be proved to enable the party to succeed. See Dr. Thomas v. Most Rev. Olufosoye (1986) 1 NWLR (pt. 18) page 669 at 673. It is the set of facts which the law will recognize as giving the party right of action. See A. G. Federation & ors v. Alhaji Atiku Abubakar & ors (2007) 4 SCNJ 456; (2007) 10 NWLR (pt. 1041) 1; and Egbe v. Adefarasin cited supra by Appellant’s counsel, Emiator v. Nigeria Army (1999) 9 SCNJ 52 (1999) 12 NWLR (pt. 631) 362.
The set of facts that give rise to a claim in this case was the arrest and detention of the 1st Respondent by the 2nd Respondent between 4th – 7th May, 1999. That was when time started to run for the purposes of determination whether the action was brought within the time stipulated by law”
Similarly in the case of Muomah v. Spring Bank Plc (2009) 3 NWLR (pt. 1129) 553 at 575. It was held thus:
“My learned brother Musdapher, JCA (as he the was) in Ibrahim-Ohida v. Military Administration, Kogi State (2000) 12 NWLR (pt. 680) 24 at 45 paras. E – F observed that:-
“A cause of action accrues from the date on which the incident giving rise to the cause of action occurred.
Sanda v. Kukawa L. G. (1991) 2 NWLR (pt. 174) 379;
Ogoja L. G. v. Offorboche (1996) 7 NWLR (pt. 458) 48;
Eboigbe v. NNPC (1994) 5 NWLR (pt. 347) 649;
Olaosebikan v. Williams (1996) 5 NWLR (pt. 499) 437 referred to”.
In the instant case the period when the cause of action arose (i.e. 2 November 2007) to the time when the 1st Respondent file his action in Court (i.e. 12 November 2007) is a period of 10 days as against five (5) years envisaged under the Kaduna State Limitation Law 1991. The action of the 1st Respondent in suit KDH/KAD/510/07 was not statute barred.
This first issue is resolved in favour of the 1st Respondent.
This appeal lacks merit and is hereby dismiss. The decision of the High Court of Justice, Kaduna State delivered on 27th April, 2012 is hereby affirmed.
There shall be no order as to costs.
DALHATU ADAMU, J.C.A.: I have been privileged to have read in draft the judgment of my learned brother A. Aboki JCA in this appeal. I am in agreement with the reasons and conclusion reached in the appeal. The appeal is devoid of any merit and as such it should be dismissed. It is hereby also dismissed by me. I abide by the consequential orders made in the lead judgment including the order on costs.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Aboki, JCA. I must say, with respect, that I am unable to agree with some of the conclusions reached in the lead judgment. I am constrained to write dissenting views on some aspects of this appeal.
The facts of this case are very straight forward. In 1999, the first Respondent, as plaintiff, commenced an action against the Appellant, as defendant, under the Undefended List in the High Court of Kaduna State in Suit No KDH/KAD/560/99 claiming the sum of N3,250,000.00 which was described as money paid by the first Respondent to the Appellant for the supply of five hundred cartons of Tetmosol Soap and which soap the Appellant failed to deliver. The High Court entered judgment in favour of the first Respondent in the said sum of N3,250,000.00 with costs assessed at N5,000.00. The Appellant appealed against that judgment and the appeal was listed by the Court of Appeal as Appeal No CA/K/239/2000. While the appeal was pending, the first Respondent took steps to execute the judgment of the lower Court and consequent on which the Appellant paid up the said sum of N3, 250,000.00 together with the costs of N5,000.00 to the first Respondent. The Court of Appeal entered judgment in the appeal of the Appellant on the 17th of April, 2007 and it set aside the judgment of the lower Court on the ground of lack jurisdiction on the part of the lower Court to hear the suit under the Undefended List. The Court of Appeal struck out the Suit No KDH/KAD/560/99.
Counsel to the Appellant thereafter addressed a letter dated the 2nd of November, 2007 to the first Respondent demanding for the refund of the sum of N3, 250,000.00 together with the costs of N5,000.00 paid in satisfaction of the High Court judgment in Suit No KDH/KAD/560/99, and he threatened that, failing which, steps would ultimately be taken to levy execution against the assets of the first Respondent. In reaction to the letter, the first Respondent, as plaintiff, commenced another action against the Appellant and the Deputy Sheriff of the High Court of Kaduna State, as first and second defendants, in the High Court of Kaduna State in Suit No KDH/KAD/510/07 and his claims were for:
i. A declaration that the judgment of the Court of Appeal in Appeal No. CA/K/239/2000 setting aside the judgment in Suit No KDH/KAD/560/99 and striking out the said suit for want of jurisdiction of the trial Court is not executory and therefore cannot be a basis for issuance of writ of attachment against the properties of the Plaintiff.
ii. A declaration that the Plaintiff has not been adjudged liable by the said judgment of the Court of Appeal in Appeal No CA/K/239/2000 to pay the first Defendant the sum of N3,250,000.00 to warrant the issuance of writ of attachment against his properties.
iii. A declaration that the payment of the sum of N3, 250,000.00 by the first Defendant to the Plaintiff was made pursuant to the judgment in Suit No KDH/KAD/560/99 and after the setting aside of same by the Court of Appeal in Appeal No CA/K/239/2000 for want of jurisdiction, the Plaintiff has a right of lien on the said sum and is entitled to retain the said sum in exercise of his right of lien.
iv. A declaration that the first Defendant is indebted to the Plaintiff in the sum of N3,250,000.00 being money had and received for a consideration that has failed and which said indebtedness is extinguished by the retention of the said sum by the Plaintiff.
v. An order of injunction in perpetuity restraining the Defendants from taking any steps pursuant to the judgment of the Court of Appeal in Appeal No CA/K/239/2000 with a view to levying execution on the properties of the Plaintiff.
The Appellant counterclaimed for “the refund of the sum of N3, 250,000.00 paid to the Plaintiff as a judgment-debt pursuant to Suit No KDH/KAD/560/99, the basis of same having been nullified on 17th of April, 2007 by the Court of Appeal in Appeal No CA/K/239/2000 as well as payment of the N5,000.00 costs awarded.” The matter proceeded to trial and at the conclusion of which the lower Court, in a judgment delivered on the 27th of April, 2010, granted all the claims of the first Respondent and dismissed the counterclaim of the Appellant. The Appellant was dissatisfied with the judgment and it caused to be filed a notice of appeal dated the 27th of July, 2010 against it. The notice of appeal contained five grounds of appeal.
In compliance with the Rules of this Court, the Appellant filed a brief of arguments dated the 5th of May, 2011 and it consisted of twelve pages. The Appellant’s brief of arguments was deemed properly filed on the 8th of March, 2012. The brief of arguments of the first Respondent was filed on the 23rd of March, 2012 and it consisted of twenty-six pages. The Appellant filed a reply brief of arguments on the 3rd of April, 2012 and it consisted of three pages. At the hearing of the appeal on the 15th of May, 2013, Counsel to the first Respondent pointed the attention of the Court to the fact that he argued a preliminary objection on pages 7 to 9 of his brief of arguments and he was granted leave to move the preliminary objection. Counsel to the first Respondent adopted his arguments on the preliminary objection. Thereafter, Counsel to the parties adopted and relied on their respective arguments contained in their briefs of arguments in arguing the appeal.
The preliminary objection of the first Respondent was directed at the first ground of appeal of the Appellant and the complaint was that the ground of appeal was argumentative and was a narrative. There is nothing in the records of the Court to show that the Counsel to the first Respondent filed a formal notice of preliminary objection stating the grounds of objection, either as a separate document or as part of the Respondent’s brief of arguments and Counsel did not refer this Court to any such document at the hearing of the preliminary objection. The Court of Appeal Rules stipulate the procedure that a respondent intending to raise a preliminary objection should follow. Order 10 Rule 1 provides that a respondent intending to rely on a, preliminary objection to the hearing of an appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of the objection and shall file such notice with the registrar within the same time. Order 10 Rule 3 states that where a respondent fails to comply, the court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondent or may make such order as it thinks fit. This procedure was reaffirmed by the Court in Kaydee Ventures Ltd V. Minister, Federal Capital Territory (2010) 7 NWLR (Pt 1192) 171.
The attitude of the Courts to non-compliance by a respondent with the prescribed mode of raising a preliminary objection in the Court of Appeal has been varied. In some instances, the non-compliance was treated as fatal. The provision of Order 10 Rule 1 of the Court of Appeal Rules 2011 used to be in Order 3 Rule 15 (1) of the Court of Appeal Rules 1981. In Okolo V. Union Bank of Nigeria Ltd (1988) 2 NWLR (Pt 539) 618, Achike, JCA (as he then was), said at page 644:
“It is quite clear to me that no such notice of preliminary objection as prescribed under Order 3, rule 15 (1) was filed by the respondent herein nor was any served on the appellants…. The respondent having failed to comply with the relevant provisions of Rules of Court for objection to hearing of the appeal, the purported aforesaid objection is hereby refused.”
In Arewa iles Plc V. Abdullahi and Brothers Musawa Ltd (1988) 6 NWLR (Pt 554) 508, Ogebe, JCA (as he then was), said at page 512:
“During the oral hearing of this appeal the learned counsel for the respondent conceded that he did not give formal notice of preliminary objection in accordance with Order 3, rule 15 (1) of the Court of Appeal Rules. By Order 3 rule 15 (3) of the Court of Appeal Rules, if the respondent failed to comply with this rule, the court may refuse to entertain the objection. Rules of court are meant to be obeyed and are not in our statute books for fancy. Accordingly, in accordance with Order 3 rule 15 (3) I refuse to entertain the respondent’s preliminary objection.”
These two passages were quoted with approval and followed by the Supreme Court in Oforkire v. Maduike (2003) 5 NWLR (Pt 812) 166. The position was reiterated by the Supreme Court in Magit V. University of Agriculture, Makurdi (2005) 19 NWLR 211, Dada V. Dosunmu (2006) 18 NWLR (Pt 1010) 134, Nwaolisah V. Nwabufor (2011) 14 NWLR (Pt 1268) 600, Ameen V. Amao (2013) 9 NWLR (Pt 1358) 159, Arum V. Nwobodo (2013) 10 NWLR (pt 1362) 374. This position of the Supreme Court was followed by the Court of Appeal in Securities and Exchange Commission V. Kasunmu (2009) 10 NWLR (Pt 1150) 509, Moyosote V. Governor of Kwara State (2012) 5 NWLR (pt 1293) 242, Union Bank of Nigeria Plc V. Ogunsiji (2013) 1 NWLR (pt 1334) 1.
In some other instances, the courts have shown a liberal attitude to non-compliance or failure to file a notice of preliminary objection in accordance with the rules by holding that it does not render such objection ineffective, so long as the grounds and arguments in support of the objection are incorporated in the respondent’s brief and argued before the appeal is heard – Ajide V. Kelani (1985) 3 NWLR (Pt 12) 248 at 257, Salami V. Mohammed & Anor (2000) 9 NWLR (Pt 673) 469, Uwazurike V. Attorney General, Federation (2007) 8 NWLR (Pt 1035) 1 and Revenue Mobilization, Allocation & Fiscal Commission V. Units Environmental Sciences Ltd (2011) 9 NWLR (pt 1252) 379.
In the instant case, Counsel to the first Respondent neither filed a notice of preliminary objection nor did he incorporate or highlight the grounds of the preliminary objection in the brief of arguments. All Counsel did was to proffer arguments on a preliminary objection in the brief of arguments. This is not a Proper manner of raising a preliminary objection in this Court. The preliminary objection argued by the first Respondent is incompetent.
Additionally, as stated earlier, the preliminary objection of the first Respondent was directed against only the first ground of appeal contained in the notice of appeal of the Appellant. The notice of appeal contained five grounds of appeal. So even if the preliminary objection is upheld, it will not terminate the appeal of the Appellant. Now, it is elementary that the purpose of a preliminary objection to an appeal is to bring the appeal to an end for being incompetent or fundamentally defective. Consequently, a successful preliminary objection terminates the appeal. The Supreme Court has stated several times that where, as in this appeal, a preliminary objection is filed against a ground of appeal, and there are other grounds of appeal that can sustain the appeal, a preliminary objection is inappropriate. Preliminary objections are only filed against the hearing of an appeal and not against one or more grounds of appeal which cannot stop the court from hearing the appeal – General Electric Co V. Akande (2010) 18 NWLR (pt 1225) 596, Lafia Local Government V. The Executive Governor of Nasarawa State (2012) 17 NWLR (pt 1328) 94, Nigerian National Petroleum Corporation V. Famfa Oil Ltd (2012) 17 NWLR (Pt 1328) 148. The notice of preliminary objection of the first Respondent fails and it is hereby struck out. This takes us to the substantive appeal of the Appellant.
Counsel to the Appellant distilled three issues for determination in his brief of arguments and these were;
i. Whether or not the first Respondent’s suit in the Court below was not an abuse of process having regard to Suit No ID/1521/99 in the High Court of Lagos State at Ikeja in which he maintains defence and counterclaim on the same transaction as that heard in the Court below.
ii. Whether or not the Court below was right in upholding the first Respondent’s claim to exercise a lien over the sum of N3,250,000.00 paid to him by the Appellant pursuant to the judgment in Suit No KDH/KD/560/99 which was set aside by the judgment of this Court in Appeal No CA/K/239/2000, and if the answer is in the affirmative whether the first Respondent’s action was not statute barred.
iii. Whether or not the Court below was right in dismissing the Appellant’s counterclaim for refund of money paid by it to the first Respondent pursuant to the judgment in Suit No KDH/KAD/560/99 which was set aside for want of jurisdiction in Appeal No CA/K/329/2000 and for the payment of the costs awarded by this Court.
The first Respondent, in his brief of argument, formulated two issues for the determination in this appeal and they were:
i. Whether on the state of the pleadings and evidence led by the parties, the trial Court is justified in affirming the exercise of lien by the first Respondent in respect of the judgment sum of N3,250,000.00.
ii. Whether the Suit No KDH/KAD/510/07 filed by the first Respondent can be said to constitute an abuse of judicial process.
Reading through the records of appeal and the briefs of arguments of the parties in this matter, I agree with the lead judgment that the second and third issues formulated by the Appellant will adequately address the complaints on this appeal. The two issues shall be adopted in resolving the appeal and they shall be regarded as first and second issues respectively and shall be resolved separately.
On the first issue for determination, Counsel to the Appellant stated that the claims of the first Respondent before the lower Court were predicated on lien and he submitted that a lien cannot be the foundation for an action as it cannot create a cause of action as a matter of law and he referred to Livestock Feeds Plc V. Okezie (2002) 10 NWLR (Pt 775) 341. Further, Counsel stated that a person can only exercise a lien over property “which is rightfully and continuously – his possession belonging to another”. Counsel said that while the said sum of N3, 250,000.00 rightfully got into the possession of the first Respondent on the strength of the judgment of the High Court in Suit No KDH/KD/560/99, it ceased to rightfully be in his possession when the judgment was set aside by the Court of Appeal in Appeal No CA/K/239/2000.
Counsel stated that to contend otherwise will amount saying that the judgment of the Court of Appeal was of no value and effect against the judgment of the lower Court. Counsel also stated that a lien does not exist in vacuo, but only as security for an accrued claim and that the claim of the first Respondent for N3, 250,000.00 was for a consideration that failed; a claim which is quasi-contract and not a summary claim and that the first Respondent cannot determine liability of the Appellant for the sum by himself. On whether the action of the first Respondent was statute barred, Counsel stated that if the Court accepts that the claim which the first Respondent asserts as the basis of the lien arose in 1999 and that the end of the action was recovery of money, then time to recover started to run in 1999. Counsel stated that by the provision of section 18 of the Limitation Law of Kaduna State, 1999 such an action becomes barred after five years and that as such the action of the first Respondent became statute barred in 2004. Counsel urged the Court to resolve the first issue in favour of the Appellant.
In response, Counsel to the first Respondent stated that the central issue running through the grounds of appeal of the Appellant is the concept of lien and he proceeded to define the concept and he referred to the cases of Afrotech Services Nig Ltd Vs MIA & Sons Ltd (2000) 15 NWLR (pt 692) 730, Livestock Feed Plc V. Okezie (2002) 10 NWLR (pt 775) 341. Counsel stated that it was beyond dispute that the first Respondent had paid the sum of N3, 250,000.00 to the Appellant for the supply of 500 cartons of Tetmosol soap which the Appellant failed to supply and that the sum of N3, 250,000.00 paid by the Appellant to the first Respondent in consequence of the judgment in Suit No KDH/KD/560/99 represented a repayment of the money paid for the supply of soap. Counsel stated that, thus, regardless of the setting aside of the judgment of the lower Court by the Court of Appeal, the first Respondent was entitled to hold on to the money as a lien for the money he had earlier paid to the Appellant for supply of soap and that the setting aside of the judgment did not make the retention of the money illegal or unlawful. Counsel stated that the judgment of the lower Court in Suit No KDH/KAD/560/99 was not set aside on the merits but on lack of jurisdiction and that the Court of Appeal did not order a refund of the judgment sum and thus the retention of the funds by the first Respondent did not violate any portion of the judgment of the Court of Appeal.
On the issue of statute bar, Counsel submitted that a lien is a specie of right that can be claimed even in respect of a debt that is statute barred and he referred to the cases of Livestock Feed Plc V. Okezie supra and Chigbu V. Tominas Nig Ltd (2006) 9 NWLR (Pt 984) 189. Counsel said that, in any event, it is the position of the first Respondent that the cause of action in relation to Suit No KDH/KAD/510/07 arose upon the receipt of the letter dated 2nd November, 2007 from Counsel to the Appellant threatening to levy execution against his assets for the non-refund of the judgment sum of N3, 250,000.00 and that the writ of summons was filed on the 12th of November 2007. Counsel referred to the cases of Afribank Nig Plc Vs Adigun (2009) 11 NWLR (Pt 1152) 329 and Muomah V. Spring Bank Plc (2009) 3 NWLR (pt 1129) 553 on the formula for calculating when an action was statute barred and submitted that the action of the first Respondent was not statute barred. Counsel further submitted that the claim of the first Respondent in respect of which he exercised the right of lien was a liquidated demand and was thus one in respect of which the first Respondent could exercise the right and he referred to the cases of Livestock Feed Plc Vs Okezie supra and Denton-West V. Muoma (2010) 2 NWLR (Pt 1177) 19. Counsel stated that it was a complete misrepresentation of the case of the first Respondent before the lower Court to state that it all revolved around the exercise of the right of lien when in fact the issue of lien formed only a part of the claims of the first Respondent in the matter. Counsel urged the Court to resolve this issue in favour of the first Respondent.
In deliberating on the claims of the first Respondent, the lower Court, in its judgment, stated thus:
“It is not in dispute that the plaintiff by exhibit P3 paid the said sum of N3,250,000 to the 1st defendant for the supply of Tetmosol soap which the defendant did not supply the plaintiff. It is also not in dispute that the money was paid/refunded to the plaintiff pursuant to the judgment of the High Court. Also true is that the judgment was set aside by the Court of Appeal. It is however clear that the judgment of the Court of Appeal was declaratory. And there is no portion of the judgment adjudging the plaintiff to pay the 1st defendant the sum of N3,250,000.00.
In the circumstance of this case it is obvious that the plaintiff has a right of lien to retain the said sum of N3, 250,000.00. That right is not subject to any statute of limitation, statutes barring the right of a party can only take away the right of action from the party. Other rights, such as the one in contention are sustainable … The plaintiff’s action to retain the money is not necessarily prejudicial to the 1st defendant who obeyed a judgment pending appeal. The fact is that the plaintiff paid the money to the 1st defendant for a failed consideration. Another fact is that the Court of Appeal made no order as to the money received by the plaintiff Pursuant to the judgment of the High Court, subject of the appeal…
Exhibit P4 is unambiguous. It seeks to execute the judgment of the Court of Appeal in order to recover the N3, 250,000.00 already paid to the plaintiff. As earlier stated, there is nowhere in the judgment the Court of Appeal made an order that the money should be refunded to the 1st defendant. There is nowhere in the judgment the Court of Appeal ordered that the 1st defendant is entitled to the said sum of money from the plaintiff? The Court of Appeal simply set aside the judgment of the High Court for lack of jurisdiction. In that lieu the judgment of the Court of Appeal is not an executory judgment capable of being relied upon to issue writ of attachment as suggested by exhibit P4.
In view of the foregoing findings it is also my considered view and finding that the plaintiff has affirmatively settled the first issue formulated. I find that the plaintiff has made out a case for the grant of the reliefs sought.” (See pages 122 to 123 of the records)
It is worthy to note that the Exhibit. P4 referred to by the lower court in its judgment was the letter dated 2nd November, 2007 from Counsel to the appellant threatening to ultimately levy execution against the assets of the first Respondent for the non-refund of the judgment sum of N3, 250,000.00.
In resolving the first issue for determination, it is essential to scrutinize and decode the claims of the first Respondent at the lower Court to determine the essence and the purpose of the action. Counsel to the Appellant stated that the action was to enforce a lien which the first Respondent claimed over the sum of N3, 250,000.00, the money of the Appellant in his possession, while Counsel to the first Respondent said that the enforcement of the lien was only part of the claims sought. Reading the claims, the first, second and fifth reliefs were directed at preventing the issuance of a writ of attachment against the assets of the first Respondent for his refusal to refund the sum of N3, 250,000.00 paid to him by the Appellant in satisfaction of the judgment debt in Suit No KDH/KD/560/99 and which judgment was set aside by the Court of Appeal in Suit No CA/K/239/2000. The third and fourth reliefs asserted the right of the first Respondent to retain the said sum of N3, 250,000.00 in the exercise of a right of lien. It is clear that the central theme of all the reliefs is the sum of N3, 250,000.00 and the essence and purpose of the first Respondent in commencing the action, as can be deciphered from these reliefs, is to assert a right of ownership over the money and to thereby prevent the Appellant from taking steps, including issuing of a writ of attachment, to retrieve the funds from him. What the first Respondent desired to take away from the suit at the end of the day was the rights to retain possession of and to utilize the said sum N3,250,000.00 to defray monies which he said he paid to the Appellant in the past, without facing any repercussions. In essence, the action was about enforcing a right of lien. The reliefs sought in prayers one, two and five were only diversionary and intended to shroud and hoodwink the Court on the real intent of the action.
The concept of a lien in the simple sense is a legal right to keep possession of property until a claim has been extended to cover a number of analogous rights. There are various types of lien – legal lien, equitable lien, general lien, particular lien, statutory lien, contractual lien, etc. A legal lien, upon which the first Respondent based his assertion of right, means a right at common law in one man to retain that which is rightfully and continuously in his possession belonging to another until present and accrued claims of the person in possession are satisfied. It is, however, settled law that a legal lien only invests a person with a right of defence and not with a right of action – Livestock Feeds Plc V. Okezie supra at page 354D. This point was well made by Diplock LJ in Tappenden V. Artus (1964) 2 QB 185 at 195 thus:
“The common law remedy of a possessory lien, like other primitive remedies such as abatement of nuisance, self-defence or ejection of trespassers to land, is one of self-help. It is a remedy in rem exercisable upon goods, and its exercise requires no intervention by the courts, for it is exercisable only by an artificier who has actual possession of the goods subject to the lien. Since, however, the remedy is the exercise of a right to continue an existing actual possession of the goods, it necessarily involves a right of possession adverse to the right of the Person who, but for the lien, would be entitled to immediate possession of the goods. A common law lien, although not enforceable by action, thus affords a defence to an action for recovery of the goods by a person who, but for the lien, would be entitled to immediate possession.” (Underlining for emphasis)
The lien asserted by the first Respondent did not give him a right of action to commence and claim reliefs in Suit No KDH/KAD/510/07. The lower court was thus in error when it granted the reliefs sought by the first Respondent. The action was without any foundation and it ought to have been struck out. The first issue for determination is resolved in favour of the Appellant.
The second issue for determination is on the dismissal of the counterclaim of the Appellant for the sum of N3, 250,000.00. The records of the appeal show that the first Respondent filed a defence to the counterclaim wherein he canvassed the issue of his right to exercise a lien over the money. In dismissing the counter-claim, the lower Court relied on its findings on the right of the first Respondent to the lien. In arguing this issue, Counsel to the Appellant submitted that upon the setting aside of the judgment of the High Court of Kaduna State in Suit No KDH/KD/560/99 by the Court of Appeal on the 17th of April, 2007, the Appellant automatically became entitled to a refund of the sum of N3, 250,000.00 as the basis upon which it was paid had, ceased to exist. Counsel referred to the cases of Somaco Enterprises Ltd V. New Nigerian Bank (2006) All FWLR (pt 293) 193, Ayi Ayi Akpo & 4 ors v. Obong Otu Andong Otu & 2Ors (1986) C. A. 6 (pt II) 36 and Bank of the North Ltd Vs Intra Bank SA (1968) NNLR 87. Counsel stated that refusal of the counterclaim on the ground of a lien cannot be supported as the right of lien is a matter of private law while a judgment of court is a matter of public law, and it is overriding. Counsel submitted that a, right of lien is not available to the first Respondent to stand in the way of a judgment as it would amount to self-help.
In response, Counsel to the first Response pointed the attention of the Court to the fact that he raised the issue of lien in its defence to the counterclaim and he assimilated all his earlier submissions on the right of the Respondent to a lien over the sum of N3, 250,000.00 into this issue.
As stated ealier, the right of lien is available to the Respondent as a defence to the counterclaim of the Appellant. To entitle a person to exercise a right of possession of goods under the right of lien, adverse to the right of the owner of the goods, the following must be established (i) that he is in possession of the goods, as no legal lien can arise until possession has been obtained by the person claiming the lien Langley Beldon & Gaunt Ltd V. Morley (1965) 1 Lloyd’s Rep 297 at 305-306. The Narada (1977) 1 Lloyd’s Rep 256 at 257. The Gregos (1985) 2 Lloyd’s Rep 347 at 361, (ii) that his possession under the original delivery of the goods to him was lawful, as possession derived from the wrongful act of a third person is generally insufficient to found a legal lien – Bowmaker Ltd v. Wycombe Motors Ltd (1946) 2 ALL ER 113, Tappenden v. Artus (1964) 2 QB 185 at 195; (iii) that the person has remained in continuous possession of the goods, and there is no inherent right in any third person that inhibits the person from maintaining such continuous possession – Great Eastern Railway Co v. Lord’s Trustee (1909) AC 109, Pennington v. Reliance Motor works Ltd (1923) 1 KB 127, The Freightline one (1986) 1 Lloyd’s Rep 266 at 272; and (iv) that the debt which gives rise to the lien has become due, not accruing – Wehner v. Dene steam Shipping Co (1905) 2 KB 92 at 101, Dyson v. Peat (1917) 1 Ch 99.
It must be stated that in Scottish Metropolitan Assurance Co. Ltd Vs P Samuel and Ccompany Ltd (1923) 1 KB 348, money was recognized as ‘goods” over which a right of lien can be exercised. It was not in dispute in the instant case that the first Respondent was in possession of the said sum of N3, 250,000.00 at the time he exercised the right of lien and that his possession of the money under the original delivery to him by the Appellant was pursuant to judgment of the High Court, and was thus lawful. It was not in dispute that the first Respondent maintained a continuous possession of the money and the Appellant did not point to any right inhibiting the first Respondent from the continuous possession; the judgment of the court of Appeal which set aside of the High Court, on the strength of which the money was paid, did not order a refund of the money. On the debt being due, it was the case of the first Respondent that it exercised the right of lien to defray a payment of the exact same sum of N3, 250,000.00 he made to the Appellant in March 1999 for supply of five hundred cartons of Tetmosol Soap and that the Appellant neither supplied the Soap nor refunded his money. The Appellant did not deny this fact either in its processes before the lower Court or in the testimony of its witness at the trial.
The lower Court found as fact in the judgment on appeal that:
“It is not in dispute that the plaintiff by exhibit P3 paid the said sum of N3,250,000 to the 1st defendant for the supply of Tetmosol Soap which the defendant did not supply the plaintiff.”
This finding has not been challenged by the Appellant in this appeal. It is settled law that where there is no appeal against any specific finding of fact made by a trial Court, the finding remains unassailable and is binding on the parties – Amale V. Sokoto Local Government (2012) 5 NWLR (pt 1292) 181, SCC (Nigeria) Ltd v. Anya (2012) 9 NWLR (pt 1305) 213, Uwazurike V. Nwachukwu (2013) 3 NWLR (pt 1342) 503, Nwaogu V. Atuma (2013) 11 NWLR (pt 1364) 117. It was not the case of the Appellant that it had earlier repaid the said sum of N3, 250,000.00 to the first Respondent. It was thus established that the debt over which the first Respondent exercised the right of lien was due. The conditions necessary for the first Respondent to exercise its right of lien were present in this case.
Counsel to the Appellant urged this Court not to uphold the right of lien because the debt which gave rise to the lien was statute bared. It is elementary, and as rightly pointed out by the lower Court in its judgment, that limitation law only bars the right of action of a party and it does not, save in the case of an action for recovery of land, completely extinguish the rights of a party. So a party can seek other ways to enforce his rights – Livestock Feeds Plc v. Okezie supra, Chigbu v. Tonimas (Nig) Ltd (2006) 9 NWLR (pt 984) 189, Industrial Training Fund v. Nigerian Railway Corporation (2007) 3 NWLR (pt 1020) 28 and the unreported decision of this court in Appeal No CA/K/374/2005 – Attiogbey v. United Bank for Africa Plc & Ors delivered on the 1st of March, 2013. Limitation law thus has no effect on the right of lien of the first Respondent.
The right of lien of the first Respondent constituted a complete defence to the counterclaim of the Appellant and the lower Court was on very sure ground when it dismissed the counterclaim of the Appellant. The second issue for determination is resolved in favour of the first Respondent.
In conclusion, I find some merits in this appeal and the appeal is hereby allowed in one part and refused in the other part. The portion of the judgment of the High Court of Kaduna State in Suit No KDH/KAD/510/07 delivered on the 27th of April, 2010 by Honorable Justice T. Zailani granting all the reliefs sought by the first Respondent is set aside while the other portion of the judgment dismissing the counterclaim of the Appellant is hereby affirmed. I agree that each party shall bear his costs of this appeal.
Appearances
J. M. E. OmugheleFor Appellant
AND
O. I. Habeeb with Y. Ajibola for the 1st Respondent
2nd Respondent absent and unrepresentedFor Respondent
