➥ CASE SUMMARY OF:
Henry Stephens Engineering Ltd v. S.A. Yakubu (Nig) Ltd (2009) – SC
by B.C. “PipAr” Chima
Supreme Court – SC.153/2002
➥ JUDGEMENT DELIVERED ON:
Friday, May 22, 2009
➥ AREA(S) OF LAW
➥ NOTABLE DICTA
⦿ FAILURE TO FILE A FURTHER AFFIDAVIT IS ADMISSION OF THE COUNTER-AFFIDAVIT
I will therefore, pause here to state that it is now settled that failure to swear to a further-affidavit where there is a counter-affidavit which is unchallenged, it is deemed that the counter-affidavit, is admitted as being correct. In other words, where there is an unchallenged counter-affidavit evidence, the court is at liberty, to accept it as true and correct. See the cases of Jumbo Nwanganga & 5 ors. v. Military Governor of Imo State & 2 ors. (1987) 3 NWLR (Pt.59) 182 @ 193 C.A. and Attorney-General orPlateau State v. Attorney-General of Nassarawa State (2005) 4 SCNJ 120 @ 175; (2005) 4 S.C. 55. — F. Ogbuagu JSC.
⦿ ANY DEPOSITION NOT CHALLENGED IN AFFIDAVIT IS DEEMED ADMITTED
In the said suit leading to the instant appeal, there is the said counter-affidavit of the Respondent which is a part of the Records. It is now settled that affidavit evidence, constitutes evidence and any deposition therein not challenged, is deemed admitted. See the cases of Ajomale v. Yaduat & anor. (No.2) (1991) 5 NWLR (Pt.191) 226 @ 282-283; (1991) 5 SCNJ. 178 and Magnusson v. Koikoi (l993) 12 SCNJ 114. — F. Ogbuagu JSC.
⦿ APPLICATION TO DISMISS AN ACTION WILL BE DETERMINED ON STATEMENT OF CLAIM ONLY
It is settled principle of law that when a Defendant files an application (such as the one that has given rise to this appeal) to strike out or dismiss an action on the ground that it disclosed no reasonable cause of action, he is, for the purpose of the application, taken to have admitted the facts alleged in the Statement of Claim. And in the determination of the application, the Court is bound to restrict itself to the Statement of Claim and to proceed on the assumption that the facts therein have been although the facts in the Statement of Claim are admitted, the Plaintiff has not, on the face of such facts, made out a case to warrant a trial or that he has, in law, a complete answer to the Plaintiffs case. See F.C.D.A. v NAIBI (1990) 3 N.W.L.R. (Part 138) 270 at 281; IMANA v ROBINSON (1979) 3-4 SC 1 at 9-10; U.D.C. v LADIPO (1971) 1 ALL N.L.R. 102; FADARE v A.G. OYO STATE (1982) 4 SC 1; TANDON v CFAO of ACCRA 10 WACA 186; AKANBI v ALAO (1989) 3 N.W.L.R. (Part 108) 118 at 140 and 153; EGBE v ADEFARASIN (1985) 1NWLR (Part 3) 549 at 556. — F.F. Tabai JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
F. Ogbuagu, J.S.C.
⦿ FOR THE APPELLANT
– Akinlawon (Mrs.)
⦿ FOR THE RESPONDENT
– Akerele, Esq.
➥ CASE HISTORY
The Respondent as Plaintiff in Suit No. LD/277/92 in the High Court of Lagos, sitting in Lagos, claimed from the Appellant, the sum of N750,-000.00 being money due and payable to the Respondent, for the wrongful conversion of its concrete mixer and for damages suffered by the Respondent for the loss of use of the said mixer.
After the service of both the Writ of Summons and the Statement of Claim on the Appellant, who did not file a Statement of Defence, but instead, filed a motion pursuant to Order 22 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1972 (hereinafter called “the Rules”) praying for an order dismissing the said suit, inter alia, 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.
Obadina, J. (as he then was), heard the application and dismissed it on the ground that it was premature. On appeal to the court below, that court, also dismissed the appeal on the ground that the trial court, correctly found that the Respondent’s Statement of Claim, disclosed a reasonable cause of action. It is against this decision, that the instant further appeal, has been brought.
➥ ISSUE(S) & RESOLUTION
[APPEAL: Dismissed with N50,000.00 favouring the Respondent]
I. Whether the said action of the Respondent, was/is statute-barred as claimed by the Appellant?
RULING: IN RESPONDENT’S FAVOUR.
A. As can be seen from the above in paragraph 10 of the Claim, an oral demand by the Respondent, was made to the Appellant for return of the item or equipment, during the period of May, 1984. But in paragraph 11 thereof, the Solicitors of the Respondent, wrote two letters – one dated 28th April, 1986 followed by another letter dated 20th October, 1987. In paragraph 12, the Appellant, re-acted to the said demand by their two letters dated 16th October, 1986 and 29th October, 1986, respectively, undertaking to return the said items of machinery and equipment of the Respondent, in due course. At the time the Respondent sued in September, 1992, the Appellant had not made good of their said undertaking. In view of these clear and unambiguous averments in the said Statement of Claim, could it be honestly said or stated that the cause of action began to run from 1984 as has been done by the Appellant in this case up to this Court I think not.
B. The consequence is that the Defendant/Applicant/Appellant is deemed to have admitted the facts of its two letters of 16th October and 29th October 1986 in paragraph 12 of the Statement of Claim. And having regard to its unequivocal undertaking in the two letters to return the equipments to the Plaintiff/Respondent in due course he cannot, in any conceivable sense, be taken to have manifested an intention to detain or withhold them in defiance of Plaintiff/Respondent. It is my firm view therefore that it is only when the detention or withholding of the equipments continued for a reasonable time after October 1986 that a cause of action accrued to the Respondent. In conclusion I hold that this action having been filed on or about the 8th of September 1992 is within the limitation period of six years. I entirely agree with the view of the court below that the action is not statute barred.
➥ MISCELLANEOUS POINTS
Per — F. Ogbuagu JSC:
✓ Frankly speaking, this is a most worthless appeal. The hearing of the suit which was instituted since September, 1992, is yet to commence. The Appellant, it is obvious to me, is using this frivolous application, to have the suit dismissed on the porous and laughable ground that it is statute-barred and as a ploy to frustrate the hearing of the case on its merits. I wish this ‘suit on the facts, should have been brought on the undefended List. I say this because, up till now, the Appellant is yet to return to the Respondent, its equipments and machinery. It is now about seventeen (17) years, since the suit was initiated. I have a feeling that this appeal may have been brought, because of the dismissal of the Appellant’s said motion by the trial court. But I agree with the court below, when it stated at page 48 of the Records that, “The order dismissing the defendant’s case was only ‘final’ to the extent to which it barred the defendant from bringing the same application at that stage of the proceedings. It could not be regarded as final for all purpose”.
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)