Alhaji Aminu Ibrahim V. Mr. Felix Osim (1987)
LawGlobal-Hub Lead Judgment Report
ADENEKAN ADEMOLA, J.C.A.
The Respondent, who was plaintiff in the court below, filed a Writ of Summons claiming against the Appellant as follows:
(1) “The sum of N117,600 due, owing and payable to the Plaintiff as his entitlement of the net profit of a Contractual business transaction entered into between the Plaintiff and the Defendant on Saturday, the 29th day of December 1984.
(2) The sum of N382,400 being general damages for breach of the said contract caused by the defendant on account of the said business transaction. (the underlining is mine)”
Respondent filed a Statement of Claim while the Appellant filed a Statement of Defence and a Motion.
The motion was brought under Order 22 Rule 4 of the Lagos State High Court Civil Procedure Rules wherein the Appellant sought an Order:
(a) That the Statement of Claim be struck out on the ground that it disclosed no reasonable cause of action and
(b) That it is frivolous and vexatious.
Segun, J. dismissed the Appellant’s motion and in subsequent proceedings, he the Learned Judge granted an Order staying proceedings in the court below. Both Orders are now the subject of appeals pending in this court. This appeal is concerned with the Order of dismissal of Appellant’s motion.
Two grounds of appeal are covered in the brief filed on behalf of the Appellant:
(1) The learned Judge erred in law in holding that the Statement of Claim disclosed a proper cause of action in paragraph 8 thereof; and
The Learned Judge erred in law in failing to hold that the alleged transaction from which the Plaintiff sought to benefit was illegal and contrary to public policy.
Mr. Mbanefo argued the appeal on behalf of the Appellant. He had argued that the nature of the contractual business transaction was not spelt out either in the Writ or the Statement of Claim. Paragraph 5 of the Statement of Claim talked about appellant agreeing to finance the business transaction by the utilization of the respondent’s Import Licence. Paragraphs 9, 12, 17, 18, 19 and 20 of the Statement of Claim were dealt with in the brief filed by Mr. Mbanefo and it was submitted that from the Writ and the Statement of Claim no proper cause of action is evident from the Statement of Claim, and no particular contract was spelt out and neither were the terms breached shown. The case of Shell BP v. Ogunsanya 1976 6 S. C. page 89 was cited in support that the Writ and the Statement of Claim disclosed no reasonable cause of action in this matter.
On the second ground of the appeal it was contended by Mr. Mbanefo that the relevant contract and the performance of it was illegal and contrary to public policy and therefore unenforceable.
In the case of Chief Harold Shodipo v. Lemminkainen OY & another 1986 1 S.C. page 197 it was held that no court would enforce a claim which on the face of it shows a prima facie case of illegality. In the instance case paragraph 7 on the Statement of Claim averred that the Appellant shall hand over to the Defendant the relevant Import Licence to be used by the Defendant. By this it was clear that the object was that the Plaintiff intended the defendant to use the Licence on the pretence that made the Plaintiff was so doing as alleged in paragraph 13 of Claim. This is illegal.
The transaction was to import tins of sardines into the country. The importation of tinned fish is prohibited by S.2 of the Economic Stabilization (Temporary Provisions) Import Prohibition Order 1984. Such importation is an offence under S.44 of Custom & Excise Management Act 1958. Plaintiff is asking for an account of proceeds of profit of such an illegal transaction and the court cannot lend support to profit from such illegal transaction.
A reply brief was filed on behalf of the Respondent. In it two issues were raised for determination. It was respectfully submitted that the court was right in holding that a reasonable cause of action was disclosed on the writ as well as the Statement of Claim. The brief went on to define what is a reasonable cause of action and noted the various definitions by citation of authorities from the decided cases. Part of the judgment of the Learned Trial Judge which read thus;
“I have carefully gone through the statement of claim filed by the Plaintiff/Respondent in this case and in Paragraph 8, the particulars of the contract entered into between the parties were clearly set out.
When this Paragraph 8 is read along with the remaining paragraphs of the Statement of Claim, it becomes clear that a reasonable cause of action is disclosed. It is clear that the action is founded on a contract.” Pages 17-18 of the Record.”
It was submitted on behalf of the respondent that the claim relates to a breach of contractual relationship entered into by the parties. Paragraph 8 of the Statement of Claim disclosed that there was offer by the Appellant to the Defendant to finance an Import Licence. Paragraph 6 of the Statement of Claim shows the acceptance of this offer that there was consideration for the agreement is also spelt out by paragraph 8 of the Statement of Claim.
There it was clearly submitted on behalf of the respondent that there was intention by the parties to create legal relations. Paragraph 17 of the Statement of Claim showed clearly that there was a breach of the agreement when the defendant took the whole consignment of the sardines and pocketed the total proceeds without giving plaintiff anything from it. This fact showed that the Statement of Claim disclosed a reasonable cause of action; see Savage and other v. Uwechia 1972 3 S.C. page 213 at page 221 where the expression the cause of action was adopted as laid down in Stroud Judicial Dictionary thus:-
“A cause of action is defined in Stroud’s Judicial Dictionary as the entire set of circumstances giving rise to an enforceable claim. To our mind, it is, in effect, the fact or combination of facts which give rise to a right to sue and it consists of two elements – the wrongful act of the defendant which gives the plaintiff his cause of complaint and the consequent damage.”
On the second issue as to illegality the respondent said there was nothing in the Statement of Claim to show that there was a transgression of S.44 of Custom and Excise Management Act. There was no averment in the Statement of Claim to show that prohibited goods were being imported into the country.
There is no difficulty in my coming to a conclusion that the Writ and the Statement of Claim filed in this matter disclose a reasonable cause of action if the Statement of Claim is read as a whole and not disjunctively as Mr. Mbanefo tended to do. It should be seen as a story told of a business transaction the parties entered into. Simply put, it is a story of a Plaintiff who has an Import Licence but no money wanting to import goods entering into an arrangement with the defendant who has money but no Import Licence but also anxious to bring in goods. The story is also unfolded by the Statement of Claim that the profit on such importation should be shared in certain proportion. The story ends up by saying that the defendant imported the goods and has kept the proceeds to himself and had not given the plaintiff any share.
In the business world appearances and make-believe matters a lot and no business man would think the less of a man who has an Import Licence getting money from another who does not have an Import Licence. In fact it was strange paradox of business life in Nigeria then that those who have Import Licences are those who have no money and those who have money have no Import Licence. The parties get together and the man with money finances the man with the licence upon terms as in this case. In so far as the Import Licence is in the name of the owner no illegality is committed by a man who has money financing an Import Licence belonging to another person. Such is the stuff of which business is made of.
I would hold that the judge was right in coming to the conclusion that the Statement of Claim disclosed a reasonable cause of action and that no issue of illegality is raised ex facie on the Statement of Claim.
I would accordingly dismiss the appeal and award the respondent the sum of N250.00 as cost of this appeal.
Other Citations: (1987) LCN/0037(CA)
