M. Kwajafah v.United Nigerian Textiles Plc (2009)

LawGlobal-Hub Lead Judgment Report

AMINA ADAMU AUGIE, J.C.A.

The Appellant worked with the Respondent for thirty four years. He was found with company property i.e. aluminum electrodes in his clothes when closing for the day and was summarily dismissed. Aggrieved by the fact that he was dismissed without investigation, he filed an action at the Kaduna State High Court, and claimed for-

1. A Declaration that his dismissal by the Respondent was wrong and therefore null, void and of no effect having not been investigated;

ii. An Order directing the Respondent to pay him the sum of N1.5m being monies accrued to him while in the Respondent’s services;

iii. N500,000.00 being general damages and loss of earnings; and

iv. The cost of the action.

Upon being served, and without filing a Statement of Defence, the Respondent filed a Motion on Notice praying the lower Court for-

“An Order striking out the Statement of Claim and dismissing the Suit, no cause of action having been shown by the Plaintiff.

The Grounds for the Application are as follows –

1. The Statement of Claim admits in paragraph 3 that property of the Defendant was found on the Plaintiff at the point of exiting from the factory of the Defendant.
2. The plaintiff has not explained how he came into possession of the Defendants property without lawful authority.
3. Paragraphs 4, 5, 6, 7, 8, 9, and 10 on the Statement of Claim are either embarrassing or scandalous or vexatious or an abuse of the process of the Court.

The Application was supported by a 9-paragraph Affidavit, wherein it was averred as follows in paragraphs 3 to 6 of the said Affidavit –

3. That on 2nd March 2003 the Plaintiff was found with a quantity of aluminum electrodes property of the Defendant, on his way out of the Factory after closing for the day.
4. That during investigation the Plaintiff made a statement in writing admitting that he was caught with electrodes in his possession. The said written statement is now produced, shown to me and marked Exhibit AT/1.
5. that by a circular Ref. 31/95 dated 12th September 1995 all employees of the Defendant had been warned of the consequences of taking away company property without lawful authority. Now produced, shown to me is the said circular marked Exhibit AT/2.
6. That the conduct of the Plaintiff was considered a breach of his fundamental obligation to his employer and he was disciplined accordingly.

The Appellant opposed the Application with a 7-paragraph Counter- Affidavit wherein it was averred in paragraph 3 (a) to (g)-

a. That the motion on Notice filed by the Defendant was filed in bad faith.

b. That paragraph (3) of the Plaintiff’s Statement of Claim is not an admission as opined by Ground (1) of the Motion on Notice.

c. That comprehensive facts leading to how Exhibit AT/1 was planted in the Plaintiff’s property and this could clearly be seen in paragraphs 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the Plaintiff’s Statement of Claim. (Sic)

d. That Exhibit AT/2 is beyond the comprehension and decision of the Defendant and or its agents or privy.

e. That Exhibit AT/1 is not a report of an investigation but a mere statement as contemplated by paragraph 8 of the Plaintiff’s Statement of Claim.

f. That apart from the fact that the Affidavit in support of the Motion on Notice was based on hearsay the contemplation of Exhibit AT/2, which is stealing as a subject is one which the Defendant cannot decide upon. But a Court of law.

g. That the issue for determination in this action is the 34 years the Plaintiff served the Defendant diligently.

The Application was argued and the learned trial Judge, Zailani, J., in his Ruling delivered on 21st September 2005, held as follows-

“- Paragraphs 3 and 4 of the Statement of Claim considered along with the entire averments at disposal together with Exhibits AT/1 and AT/2 one is at a loss as to the real or factual complaint of the Plaintiff. Is it the 34 years of service – – I do not agree that the 34 years is the issue – – – The obvious finding is simply that the Statement of Claim has not shown sufficient cause of action. The Affidavit in support of the Application is reliable. It should be preferred. The Counter-Affidavit has not in any way contradicted or challenged it. Ultimately, I find substance in the Application and order it in terms prayed”.

Dissatisfied with the Ruling, the Appellant appealed to this Court with a Notice of Appeal containing three Grounds of Appeal, and in his Brief of Argument prepared by Y. J. Haruna, Esq., it was submitted that the Issues that call for determination are as follows-

i) Whether the Appellant’s Statement of Claim at the trial Court paragraph 3 can be said be an acceptance of being in possession of the Respondent’s property and thereby no cause of action is shown.

ii) Whether the trial Court was right to have struck out the Statement of Claim, when the Respondent did not file any Statement of Defence first. And more so still went ahead to dismiss the suit it did not hear on the merit, but on the strength of Exhibits AT/1 and A1/2.

The Respondent, however, submitted in its own Brief prepared by Adebayo Adeyefa, Esq., that the Issues for Determination are –

(1) Whether the trial Judge was right to have heard the Application of the Respondent praying for (a) an order striking out the Statement of Claim and (b) consequential order dismissing the suit, without requiring the Respondent first to file its defence.

(2) Whether the learned trial Judge was right in holding that paragraph 3 of the Statement of Claim is an admission, in consequence of which the Plaintiff has no cause action.

The Appellant’s Issue (ii), which could be better drafted, and the Respondent’s Issue (1) are the same and should be resolved first.

To start with, the Application that culminated in this appeal was brought pursuant to Order 24 rule 20 and Order 23 rule (4) of the High Court of Kaduna State (Civil Procedure) Rules, and it will be necessary to reproduce them. Order 23 rules (1) to (4) reads –

(1) No demurrer shall be allowed.

(2) Any party shall be entitled to raise by his pleading any point of law, and any points so raised shall be disposed of by any Judge who tries the cause at or after the trial. Provided that by consent of the parties, or by order of the Court or judge on the application of either party, the same may be set down for hearing and disposed of any time before the trial.

(3) If in the opinion of the Court or a Judge the decision of such point of law substantially disposes of the whole action, or any distinct cause of action, ground of defence, set off, counter-claim – – the Court or Judge may thereupon dismiss the action or make such order as may be just.

(4) The Court or a judge 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 pleading to be frivolous or vexatious, the Court or a judge may order the action to be stayed or dismissed or judgment to be entered accordingly, as may be just.

Order 24 rule 20 of the same High Court Rules also provides-

“The Court may at any time, on the application of either party, strike out any pleading or any part thereof, on the ground that it discloses no cause of action, or no defence to the action, as the case may be, or on the ground that it is embarrassing, or scandalous, or vexatious, or an abuse of the process of the Court; and the Court may either give leave to amend such pleading, or may proceed to give Judgment for the Plaintiff or the Defendant, as the case may be, or, may make such other order, and upon such terms and conditions as may seem just”.

The Appellant submitted that Order 24 rule 20 deals with pleadings, while Order 23 rule 4 deals with proceedings in lieu of Demurrer; that the proper way to dispute an averment in a Statement of Claim is not to file an Application to have the Plaintiff’s action dismissed in limine but to file a defence traversing that averment, and that the grounds in the Respondent’s Application could not have been determined without a defence having first been filed, citing M. V. Mustapha V. Afro Asian Impex Ltd. (2002) 14 NWLR (Pt. 797) 395; M.S.L.(Nig.) Ltd. V. M. A. (2000) 9 NWLR (Pt. 672) 391; Watanmal (Singapore) V. Liz Olofin & Co (1998) 1 NWLR (Pt. 533) 331; Brawal Shipping Ltd. V. F. I. Onwadike Co. Ltd. (2000) 11 NWLR. (Pt. 678) 387; Global Transport Oceanico S.A. V. Free Enterprises Nig. Ltd. (2001) 5 NWLR (Pt, 706) 426; Akpan V. Utin (1996) 7 NWLR (Pt. 463) 634; and Umarco (Nig.) Plc. V. Jofabris & Associates (2004) 6 NWLR (Pt. 870) 458. Furthermore, that there is a distinction between demurrer and proceedings in lieu of demurrer; that the lower Court erred when it dismissed his suit based on the Respondent’s Affidavit and Exhibits AT/1 and AT/2; and that in an Application of this nature, the trial Court should consider only the Writ of

Summons and Statement of Claim, citing MV “Delos” V. Ocean Steamship (Nig.) Ltd. (2004) 17 NWLR (Pt. 901) 88, Umarco (Nig.) Plc. V. Jofabris & Associates (supra) and Combined Trade Ltd. V. All States Trust Bank Ltd. (1998) 12 NWLR (Pt. 576) 56.

On its part, the Respondent referred us to Order 23 rule 2 and submitted that Order 24 Rule 20 provides for a procedure used to challenge the pleadings, while Order 23 rule 2 is a procedure that leaves the pleadings unchallenged but raises an issue of law capable of deciding the matter in dispute even if the unchallenged averment are true and less obvious, and citing the English case of Everetts V. Ribhands (1952) 2 QB 196 that Order 24 rule 20 is designed to facilitate a quick and less expensive way of adjudication where the facts of a particular case so permit. Furthermore, that the word “may” in Order 24 rule 20 vests the trial Court with discretionary power at any stage of the proceedings to determine whether or not to strike out any pleadings; and that it is trite law that an Appellate court should only interfere if it is satisfied that the trial Court’s discretion was not exercised judicially but arbitrarily or capriciously, citing University of Lagos V. Olaniyan (1985) 4 NWLR (Pt. 89) 394. This Court was therefore urged to hold that the procedure it adopted was permitted by the Rules; that it was within the discretion of the lower Court to permit it to bring the application without first filing its defence; that the discretion was exercised judicially; and that the decision to strike out certain paragraphs of the pleadings was not arbitrary or unreasonable.

The Appellant conceded in its Reply Brief that the word “may” used in Order 24 rule 20 vests the lower Court with the said discretionary power, but argued that the discretion must be exercised judiciously and judicially and not arbitrary or capriciously. It was further submitted that what is expected is fair hearing and a fair trial, and the Respondent should not take an advantage of a facility afforded it but should apply strict compliance of the rules of Court as required by Law, and not choose any procedure it wants.

The Appellant is right; there is a clear distinction between demurrer, which is not allowed, and proceedings in lieu of demurrer set out in the said Order 23 of the High Court Rules. The essence of demurrer is that the party raising it contends that even if all the allegations in the pleadings were true, it still does not disclose a cause of action in law for the party to answer to, and where there is a demurrer, the party making the contention would not file his own pleading – see Bambe & ors V. Aderinola & ors (1977) NSCC (Vol. 11) 1, where Madarikan, JSC, observed that-

“Before demurrer was abolished, one of the methods of fighting an opponent’s pleading was by demurrer. The party who demurred would not proceed with his pleadings but, having raised a point of law as to whether any case had been made out in his opponent’s pleading for him to answer awaited the decision on the point”. (Highlight mine)

The procedure by way of demurrer only applied before the Statement of Defence is filed because the allegations in the Statement of Claim were taken as admitted and filing a Statement of Defence in answer to such an allegation had the effect of joining issues on them, which would render the procedure meaningless.

Under the procedure in lieu of demurrer, both pleadings must have been filed because a Defendant is not taken as admitting the facts pleaded in the Statement of Claim. The Court will not act unless the Defendant is able to show that on the facts pleaded by the Plaintiff and admitted by him, if any, the claim cannot succeed.

Under Order 23 rule 4, an application for any pleading to be struck out “is made at a very early stage of the action where there is only the Statement of Claim without any pleadings and without any evidence at all” – see Yusuf V. Akindipe (2000) 8 NWLR (Pt. 669) 376 SC. Thus, a procedure under Order 23 rule 4 is similar to a demurrer in that a Defendant applying to strike out a Statement of Claim does not need to file his pleading before doing so.

A Defendant can therefore have the case against him struck out or dismissed without filing his Statement of Defence or going into trial. In this case, the Appellant averred in his paragraphs 3 to 11 –

3. (That) his dismissal based on the welding material found in his clothes at the gate by the security is wrong without investigation.
4. (That) he had served the Defendant for 34 years and as Supervisor had never received even an oral warning before his dismissal, and all the 34 years he served, he could not mortgage or forfeit his years in Defendant’s service over welding material of not less than N1, 500.00.
5. (That) some few months before his dismissal he had caught people – Williams Ibrahim and Andrew Peter assembling guns in the factory of the Defendant and reported same.
6. (That) the two people were investigated at the Kakuri Police Division and the Defendant suffered a substantial loss of money in order to terminate the case at the Police Station.
7. (That) the 2 people in 5 above were adjudged guilty and dismissed, and vowed to “do an act or omission which will vindicate the Plaintiff to warrant his dismissal as well as through their serving agents or proxies in the Defendant’s service”.
8. (That) throughout his 34 years whenever one is caught with any item by the security at the gate; the suspect will only acknowledge being caught and continue with his job. While the Security will pass the item and the particulars of the suspect to the Security Officer for investigation.
9. (That) pursuant to 8 above, the Security officer invites all concerned including the person that request and used the item caught; all in a view avoid to victimization. In the Plaintiff’s case, nothing was done”
10. (That) he complained to the Personnel Officer, one Aminu Tanko that there hasn’t been any investigation and the reply he got from Aminu is that there will be no investigation in his case.
11. (That) he has met his untimely dismissal by virtue of the combined effect of disclosing the two suspects and the huge amount of money the Defendant lost to the Police in order to terminate the assembling of gun’s case and the refusal of the Defendant to investigate the genuineness or otherwise of the allegation against the Plaintiff.

The lower Court reproduced his paragraph 3, and held as follows-

“If paragraph 3 makes any sense or has any meaning at all, it is clear that the Plaintiff has pleaded that he was dismissed because he was found in possession of the Defendant’s property. This Exhibit 3 is a prima facie acceptance of this fact. “In view of Exhibit AT/1 and AT/2 — the Plaintiff has not disclosed a cause of action – – Paragraphs 5 to 11 – – do not seem to have any nexus with paragraph 3. They simply contain extraneous matters prima facie not related to the issue raised in paragraph 3. Paragraph 4 – – confirms paragraph 3 when the Plaintiff avers – – that he could not lose or forfeit his years of service “for a welding material of less than N1, 500.00″. Paragraphs 3 and 4 – – considered along – – with Exhibits AT/1 and AT/2 one is at a loss as to the real or factual complaint of the Plaintiff. – – The obvious finding is – – that the Statement of Claim has not shown sufficient cause of action”.

This certainly brings us to the Issue of whether the lower Court was right to hold that paragraph 3 is an admission, thus, the Appellant did not disclose any cause of action in his Statement of Claim.

The Appellant submitted, citing Alalade V. Morunhundiya (2002) 16 NWLR (Pt. 792) 81, 7-Up Bottling Co. V. Abiola & Sons (2001) 13 NWLR (Pt. 730) 469, Watanmal (Singapore) V. Liz Olofin (supra), Arabambi V. A.B.I. Ltd. (2006) Vol. 3 MJSC 1, SJ, that from the definition of cause of action and what a Court looks a to determine whether a suit shows a reasonable cause of action, the Appellant’s statement of claim discloses a cause of action.

The Respondent’s position is that the lower Court is right that paragraph 3 is an admission, citing Sections 19 and 20 (1) of the Evidence Act, Anason Farms Ltd. V. NAL Merchant Bank Ltd. (1994) 3 NWLR (Pt.331) 241 and Mosheshe General Merchant Ltd .V. Nigeria Steel Products Ltd. (1987) 1 NWLR (Pt.55) 110. On a cause of action, it cited Ibrahim v. Osim (1988) 3 NWLR (Pt.82) 257, Savage & Ors. V. Uwechi (1972) 1 ALL NLR (Pt. 1)251, Akilu V. Fawahinmi (No.2) (1989) 2 NWLR (Pt. 102) 172, and 7-Up Bottling V. Abiola & Sons (supra), also cited by the Appellant.

This is where the bubble bursts; the lower Court may be justified in hearing the Application without a Statement of Defence, but it certainly fell into grievous error when it looked beyond the Appellant’s Statement of Claim to the averments and Exhibits annexed to the Respondent’s Affidavit in support of the Application.

The case of Yusuf V. Akindipe (supra) highlights this error-

“The Appellants filed their Statement of Defence and exhibited many documents to the Affidavit in support of their Application – -. The Courts below were right in ignoring the Statement of Defence and the Exhibits annexed – – When the Court is urged to strike out or dismiss an action for which there is no reasonable cause, it means that no reasonable cause of action is disclosed upon the face of the pleadings. Only the Writ of Summons and the Statement of Claim are considered.”

A cause of action is a situation or state of facts that would entitle a party to sustain an action and give him a right to seek judicial remedy or redress, and the only place to look for a cause of action is the Statement of Claim – see Bakare V. N.R.C. (2007) 17 NWLR (Pt. 1064) 606 SC and Abubakar V. B.O. & A.P. Ltd. (2007) 18 NWLR (Pt. 1066) 319 SC and 7-Up Bottling Co. V. Abiola & Sons (supra), cited by both parties, and where the Supreme Court held-

“—In determining whether the Plaintiff’s action discloses any cause of action – -. The Court will necessarily restrict itself to the Plaintiff’s Statement of Claim without recourse to the Defendant’s Statement of Defence – -. In necessarily restricting itself to the Statement of Claim, the Court is not obliged to consider seriatim all the averments in the statement of claim. It is sufficient if the Court looks at same as a whole and/or refers to few averments that form the gravaman of the claim”.

More importantly, 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 questions fit to be decided by a Court – see Dada V. Ogunsanya (supra) and Yusuf V. Akindipe (supra), where the Supreme Court per Ogwuegbu, JSC, observed-

“A reasonable cause of action means a cause of action with some reasonable chance of success when only the allegations in the pleadings (Statement of Claim) are considered. As long as the Statement of Claim disclosed some cause of action or raises some question fit to be decided by a Judge as in this case. The mere fact that the case is weak, and not likely to succeed, is no ground for striking it out or dismissing it”. (Highlight mine)

In this case, it is easily discernible that the Respondent’s averments and the Exhibits AT/1 and AT/2 annexed to its Affidavit, which the lower Court should not have looked at in the first place, had a negative effect on its consideration of whether the Appellant’s pleading disclosed a reasonable cause of action or not. What is more, it would appear that the lower Court did not “fully appreciate” the import of his averments in the Statement of Claim.

The Appellant may have accepted that the Respondent’s property was found in his possession, however, when the averments in the Statement of Claim are read together, his case appears to be that the said property was planted by the people he reported for assembling guns or their agents or proxies, and his grouse is that the matter was not looked into before he was summarily dismissed. Also, the import of his averment in paragraph 4 is that he would not “mortgage or forfeit” his 34 years service with the Respondent for a mere “welding material of not less than N1, 500.00”, but the lower Court found it to be a confirmation of his admission in paragraph 3. The case put forward by the Appellant may appear weak or improbable and not likely to succeed in the estimation of others, but it is his case and that is what he wants the Court to look into. For whatever it is worth, the averments in his Statement of Claim disclosed a cause of action, which should be trashed out at a trial.

This appeal therefore succeeds and is allowed. The Ruling of the lower Court delivered on the 21st of September is set aside. The Appellant’s Suit No. KDH/KAD/423/2005 is remitted to the Chief Judge of Kaduna State for transfer to another Judge of the High Court, and the Appellant is awarded costs of N30,000.00.

---

Other Citations: (2009)LCN/3358(CA)