Mrs. Florence Omotayo Labode V. Dr.godfrey Otubu & Anor (2001)

LAWGLOBAL HUB Lead Judgment Report

UWAIS, C.J.N

This is an interlocutory appeal from the decision of the Court of Appeal, Lagos Division. The appellant was the plaintiff in a suit brought in the High Court of Lagos State, sitting in Lagos; while the respondents were the defendants. The plaintiff’s claim in the suit was for:

(a) An Order directing the defendants to surrender to the plaintiff forthwith the Original Land Certificate Title No. MO 9143 registered at the Lands Registry, Lagos and covering property lying, being and situate at No.6, Calabar Street, Surulere, Lagos.

(b) N100,000.00 being general damages against the defendants jointly and severally for the wrongful refusal to release to the plaintiff the said Land Certificate Title No. M09 413 “.

The writ of summons which was taken out on the 28th day of September, 1988 was accompanied with the statement of claim. A motion ex-parte was brought jointly, on the 21st day of December, 1988, by the defendants under Order 13 rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 1972, for the plaintiffs previous solicitor C. O. Fadipe, Esq. to be joined in the suit as a third party. It appears from the record of the proceedings of the 9th day of May, 1989 that the motion ex-parte was granted, for the learned trial Judge – Adeyinka J. after being addressed by J. A. Badejo, Esq., learned counsel for the plaintiff, ruled as follows:

“COURT: -Suit is sat (sic set) down for trial” November,1989. H/N (sic Hearing Notice) to issue to the defendant (sic) and 3rd Party”.

On the 27th day of January, 1989, Alade A. Akesode, Esq. of solicitors to the defendants issued out, a third-party notice under Order 13 rule 23 of the High Court of Lagos State (Civil Procedure) Rules, 1972 addressed to C. O. Fadipe, Esq., directing him to enter appearance in the suit within 8 days and that in default of doing so, he would be deemed to have admitted the issues between him and the defendants and be liable to the judgment of the High Court. The issues raised against C. O. Fadipe, Esq., by the third-party notice are:

“(i) the repayment of the deposit N150,000.00 paid by the 1st defendant to you as consideration for the sale or assignment of the property, No.6 Calabar Street, Surulere, Lagos, (which sale or assignment you failed or neglected to perfect), along with interest at the rate of ten percent (10%) – per annum,

(ii) the entitlement of the 1st defendant to purchaser’s lien on the original Land Certificate title No. MO 9413 covering the property known as No. 6 Calabar Street, Surulere, until the said amount of N150,000.00 with interest thereon at the rate often percent (10%) per annum has been paid together with costs should be determined not only as between the plaintiff and the defendant but between the plaintiff and the defendant and yourself’.

The third-party notice was eventually served on C. O. Fadipe, Esq. by substituted service, by pasting it on the door of his chambers at No. 38, Kano Road, Ebute-Metta East, Lagos.

On the 31st day of October, 1989, the defendants took out a summons for direction under Order 22 rule 4 and Order 26 rule 6 (3) of the High Court of Lagos State (Civil Procedure) Rules, 1972 seeking an order of the trial court to strike out the plaintiff’s statement of claim on the ground that

“(a) it discloses no cause of action in that the reliefs sought by the plaintiff are not such that the court can grant against the defendants herein;

(b) that the necessary parties are not before the Court; and

(c) that the action is an abuse of process of this Honourable Court”.

The summons was heard by the learned trial Judge on the 13th day of March, 1990, and he gave ruling on the same day dismissing the defendants’ application. The ruling stated in part as follows:

“…….This action may be founded in conversion or detinue but is more of detinue at this stage as it was not alleged that the Title Deed had been deposed of (sic) by the defendants…..The essence of this action is that the plaintiff is entitled to be in possession of the title deed, not the defendants. I refer to paragraphs 8 and 9 of the statement of claim And hold that they are allegation of demand and refusal.

. . . . …. I refer to paragraph 9 (of the) statement of claim and hold that the defendants’ refusal was blunt and unconditional. The defendants have by holding on to the title deed interfered with the plaintiff’s property which as per paragraph 20 (of the) statement of claim, she could not pledge to raise funds for her business. The statement of claim therefore discloses a course (sic cause) of action which is reasonable because if the statement of claim is unchallenged and undefended, the plaintiff’s action is likely to succeed …. Alhaji Olanrewaju having delivered his title deed to the plaintiff and executed a Deed of Assignment the proper person to sue is the plaintiff…….. This application fails in its entirety and is hereby dismissed” (interpolation mine).

At this stage, I think it is necessary to quote the pertinent paragraphs in the statement of claim with regard to the defendants’ application to have it Shuck out.

“4. Sometime in 1984, Alhaji Mudasiru Olanrewaju, the original owner of the said No.6, Calabar Street, Surulere, Lagos assigned it to the plaintiff for valuable consideration.

5. The plaintiff found it convenient to engage the services of the previous owner’s solicitor, Mr.C. O. Fadipe to prepare the Deed of Assignment, lodge the necessary application for Governor’s consent and generally perfect her Title.
6. Pursuant to the instructions given to the said Mr. C. O. Fadipe as stated in Paragraph 5 above, the plaintiff handed over to him, among other things, the original Title Deed covering the said No.6, Calabar Street, Surulere, Lagos registered as Title No. MO 94123 at the Lands Registry in Lagos.
7. Sometime in 1986, it became clear to the plaintiff that the application for Governor’s consent was taking an unduly long period to process and she requested Mr. C. O. Fadipe to hand over the Original Land Certificate Title No. MO. 9413 and all other documents in his possession to enable her continue personally to process the perfection of her title.
8. To the plaintiff’s utter surprise she was informed by Mr. C. O. Fadipe that he had deposited the Land Certificate Title No. MO 9413 with the 1st defendant as security for certain amounts advanced to him by the 1st and 2nd defendants.
9. The plaintiff confronted the 1st defendant in his house on 31st December, 1987 and he admitted that the said Original Land Certificate No. MO 9413 is in his possession but refused to hand same over to the plaintiff on demand.
10. Towards the end of 1987 and after strenous efforts, the plaintiff eventually succeeded in obtaining the Governor’s consent to the transaction assigning the property covered by the Lands Certificate No. MO 9413 and known as 6, Calabar Street, Surulere, Lagos to her.
11. The plaintiff will rely at the trial on the said Deed of Assignment dated 30th December, 1987 duly executed by Alhaji Mudashiru Akanni Olanrewaju and also endorsed as a transaction for which the Consent of the Governor of Lagos State has been obtained:
12. The officials of the lands Registry, Lagos have requested for the original Land Certificate No. MO 9413 before the Deed of Assignment referred To above could be registered at the Lands Registry.
13. The plaintiff has not been able to register the said Deed of Assignment because the 1st and 2nd defendants have refused and/or neglected to hand over to the plaintiff the Original Land Certificate No.MO 9413, despite persistent demand.
14. Up to date, the defendants have refused to reply the plaintiff’s solicitors letters to the defendants dated 9th June, 1988, 18th July, 1988 and 15th September, 1988.”
15. The plaintiff will rely at the trial on Mr. C. O. Fadipe’s letter to the plaintiff dated 17th February, 1988, 13th May, 1988, and 10th June, 1988 respectively.
16. The Plaintiff is now aware that the 2nd defendant has sued Mr. C. O. Fadipe in suit No.LD/775/87 for the recovery of the sum of N155,000.00 Certified True Copies of the processes filed in the suit will be relied upon at the trial.
17. The plaintiff is not a party to any transaction between the defendants and Mr. C. O. Fadipe and gave no instructions whatsoever to the said Mr. C. O. Fadipe or any person whatsoever to deposit the Original Land Certificate No. MO 9413 with any person including the defendants herein”.

“20. The refusal of the defendants to surrender the Original Title No. MO 9413 has prevented the plaintiff from perfecting her Title and lodging same with her bank as security for the much needed facilities to revitalise her business.”

“22. The plaintiff will contend at the trial that the, refusal by the defendants to release Title No. MO 9413 to her is wrongful and that she has suffered substantial General Damages by reason thereof.

23. WHEREOF the plaintiff claims as per the Writ of Summons. DATED this 28th day of September, 1988”.

Dissatisfied with the ruling of the learned trial Judge, the defendant’s appealed from it to the Court of Appeal which, in stating the facts of the case in its judgment (per Uwaifo, JCA as he then was, which was agreed with by Sulu Gambari, JCA and Kalgo JCA, as he then was). observed as follows:

“The plaintiff acquired property at No.6 Calabar Street. Surulere. Lagos by way of assignment. She got the Land Certificate Title No. MO 9413 from the vendor. The Vendor’s solicitor was one Mr. C. O. Fadipe. The plaintiff decided to use his services to prepare the Deed of Assignment and so handed him the Land Certificate. Mr. Fadipe became of course a bailee of that Certificate. In breach of trust Mr. Fadipe pledged the Certificate to secure loan given him by the defendants. On becoming aware the plaintiff demanded the return of the Certificate from the defendants to enable her to perfect her legal title which was still in her vendor but they refused. There is no averment that the plaintiff offered to repay to the defendants the loan given to Mr. Fadipe in order to retrieve the Certificate. The simple question is whether an action in detinue is the proper remedy available to the plaintiff against the defendants in the circumstances. Put in other words, whether the plaintiff has disclosed a reasonable cause of action based on the test of detinue against the defendants in her statement of claim”. (Italics mine).

Based on the foregoing the Court of Appeal went on to consider the case on the basis of pledge. Uwaifo, J.C.A. observed further as follows:

“I think the learned trial Judge took a narrow view of the refusal of the defendants to return the Certificate when there was no averment that there was an offer by the plaintiff to repay the loan or that the loan was tendered. What Mr. Fadipe did was to pledge the Land Certificate with the defendants to secure the loan. The question is not whether the pledge is realisable in the circumstances. The real question is whether the defendants may hang on to the Certificate and insist on being repaid as a condition for releasing it in an action forwarded (sic founded) in detinue”.

The learned Justice concluded his judgment thus:

“In the present case since the plaintiff already knew of the pledge and pleaded it, it was up to her to plead necessary facts in her statement of claim to support a wrongful detention of the Certificate as I already indicated my view that the statement of claim in this action does not disclose a reasonable cause of action in detinue. It ought to have been struck out by the court below and the action dismissed in accordance with Order 22 rule 4 of the High Court of Lagos State (Civil Procedure) Rules. See Oloriode & Ors. v Oyebi & Ors. (1984) 1 SCNLR 390; (1984) 5 S.C. 1 at 24-25 per Obaseki, JSC. I allow the appeal. Accordingly I strike out the statement of claim and dismiss the action with N1,500.00 costs to the appellants”.

It then became the turn of the plaintiff to appeal against the decision of the court below to this court. The appellant’s brief of argument was filed and only one issue was raised therein for our determination. It reads

“Whether the writ of summons and the statement of claim disclose reasonable cause of action”.

The respondents’ brief of argument simply adopts the issue formulated by the appellant.

Mr. Badejo, learned counsel for the appellant, contends that the appellant purchased the property at No.6, Calabar Street, Surulere in 1984 from Alhaji Mudashiru Olanrewaju. She engaged the services of Mr. C. O. Fadipe as solicitor to prepare the deed of assignment, lodge the application for Governor’s consent and perfect her title. To enable Mr. Fadipe comply with her instructions, she handed over to him the original copy of the land certificate No. MO 9413 which covers the property in question. When in 1986 she requested Mr. Fadipe to return the land certificate to her since he failed to carryout her instructions, she was surprised to learn that Mr. Fadipe had deposited the certificate with the 1st and 2nd respondents as security for certain amount of money advanced to him by the respondents.

Learned counsel for the appellant argues that neither Alhaji Olanrewaju the previous owner of the property nor the appellant are parties to the alleged loan transaction between the respondents and Mr. Fadipe. He canvasses that a cause of action is a factual situation which if substantiated entitles a plaintiff to a remedy. He cited the case of Egbe v. Adelarasin, (1987) 1 NWLR (Pt. 47) 1 at p. 20 per Oputa, JSC and submitted that in the present case the appellant has not pleaded the tort of detinue in her statement of claim. Nor has she presented herself as a pledgor seeking to recover the land certificate as property pledged by her. He contends that the learned Justices of the Court of Appeal were erroneous when they sought to bring the appellant’s claim within the head of tort of detinue which the respondents claimed it fell. He submits that it is no longer necessary for a plaintiff’s claim to be identified with a particular head of tort. It is sufficient if the facts averred in the statement of claim, if substantiated, would entitle the plaintiff to a relief against a defendant. For once there is a wrong there must be a remedy ubi jus ibi remedium. Learned counsel cites in support the case of Bello & Ors. V A-G Oyo State, (1986) 5 NWLR (Pt. 45) 828 at pp. 853 and 854 per Bello, JSC (as he then was). He submits that it is beyond argument that the facts averred in the appellant’s statement of claim discloses a reasonable cause of action. Learned counsel also argues that the Court of Appeal acted in error when after holding that the statement of claim did not disclose reasonable cause of action went on to dismiss the action contrary to the provisions of Order 22 rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1972, under which the respondent’s Summons for Direction was issued, while the respondents’ application was for the action to be struck out. The Order provides:

“4. The Court or a Judge in Chambers may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Judge in Chambers may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just”.

He submits, citing the case of Nigerian Airways Ltd. v. Lapite (1990) 7 NWLR (Pt. 163) 392 at p. 406 F-H that the appellant’s action could only be dismissed if it was found, apart from not disclosing reasonable cause of action, to be frivolous or vexatious. However, the Court of Appeal made no such finding before dismissing the action.

In concluding his argument, learned counsel for the appellant submits that apart from this Court holding that the statement of claim discloses a reasonable cause of action, we should exercise our jurisdiction and power on the authority of Chief Imonikhe & Anor v. A G of Bendel State & Anor (1992) 6 NWLR (Pt. 248) 396 to compel the respondents to release to the appellant the Land Certificate in dispute and remit the case to the trial High Court for the assessment of the damages claimed only in accordance with the general powers of the court under section 22 of the Supreme Court Act, Cap. 425.

In his reply, Mr. Popoola, learned counsel for the respondents, argues that the lower courts concurrently found that the facts pleaded in the appellant’s statement of claim amount to detinue. He refers to the judgment of the trial Court where it stated as follows:

“This action may be founded in conversion or detinue but is more of detinue at this state (sic stage) as it was not alleged that the Title Deed had been disposed of by the defendants”.and the leading judgment of the Court of Appeal which opens thus: “This appeal is decided on the issue whether the statement of claim discloses a reasonable cause of action in detinue”.to submit that there are concurrent findings of fact on the issue and that the appellant has shown no special circumstances as to why this court should depart from the findings. He relies on the decisions in Olaloye v Balogun, (1990) 5 NWLR (148) 24 C.A.;Are v. lpaye, (1990) 2 NWLR (pt. 132) 298 and Adekunle v. The State (1989) 5 NWLR (Pt.123) 507.

Learned counsel for the respondents argues further that a cause of action must be such that is known to law; and refers to the definition of “cause of action” in Ogbimi v. Ololo (1993) 7 NWLR(Pt. 304) at p. 128 and Adepoju v. Afonja (1994) 8 NWLR (Pt. 363) 437. He contends that a deposit of one’s title document in order to secure a loan is an equitable mortgage of the document British and French Bank v. Akande (1961) WNLR 277. That the respondents in the present case hold the Certificate of Title as security for the loan granted and the document can only be recovered by repaying the loan. He further argues that the statement of claim does not aver that the respondents are contesting ownership of the title to the property in dispute with the appellant but instead paragraphs 6, 8, 9 and 16 thereof reveal a loan, a pledge and the effort to recover the loan and release the Certificate of Title.

Learned counsel canvassed that the Court of Appeal was right to observe that the question for determination in the action, is not whether the pledge is realisable in the circumstances; but whether the respondents may hold on to the Certificate of Title and insist on being repaid the loan as a condition for releasing it in an action for detinue. He submits that the learned trial Judge overlooked this fact and that is why his decision was set aside by the Court of Appeal.

It is also urged upon us, by learned counsel for the respondents, that since the issue whether Mr. Fadipe, as solicitor, can pledge his client’s documents is being raised for the first time in the Supreme Court, we should not countenance it and should, therefore, ignore it; he cites in support – Akeredolu v. Akinremi (1989) 3 NWLR (Pt. 108) 164; Olale v. Ekwelendu (1989) 4 NWLR (Pt. 115) 326 and A-G Oyo State v. Fairlakes Hotel Ltd. (1988) 5 NWLR (Pt. 92)

Arguing in the alternative, learned counsel contends that a solicitor to whom title documents are entrusted is an agent as a trustee. In that capacity, a principal’s interest could be defeated by a bona fide purchaser for value of the legal estate without notice – Marshall v. National Provincial Bank, (1893) 2 Ch. 120. In this situation, the client as principal can sue the solicitor as its agent. However, in the present case this situation has not been depicted by the statement of claim and the writ of summons. In considering the application of the respondents on Summons for Direction issued under Order 22 rule 4 the courts are limited to consideration of the statement of claim only, learned counsel said.

Now, it is true that in determining an application under Order 22 of the High Court of Lagos State (Civil Procedure) Rules, Cap. 52 of the Laws of Lagos State, 1972, the trial Court will only examine the writ of summons and the statement of claim. It will not examine the statement of defence or any defence by way of the affidavit in support of the application to strike out or dismiss the action or suit. See Fumodoh v. Aboro (1991) 9 NWLR (pt. 214) 210 at pp. 231 H – 232B and Civil Service Technical Workers Union v. Agricultural and Allied Workers Union of Nigeria (1993) 2 NWLR (Pt. 273) 63 at pp. 71G -72A. It is clear from the appellant’s statement of claim that the Land Certificate which she gave to Mr. Fadipe as solicitor to register in her favour ended up with the respondents as pawn. She specifically averred in paragraph 17 thereof that she was not a party to the transaction between Mr. Fadipe and the respondents nor did she give instructions to Mr. Fadipe to deposit the Land Certificate to the respondents. In other words, she did not authorise Mr. Fadipe to pledge the document to the respondents. These averments are presumed to be true for the purpose of the application brought by the respondents for the trial court to strike out the statement of claim – see Fashanu v. Governor of Western Region & Anor, 1955-56 WRNLR 138 and Foko v. Foko & Anor. 1968 NMLR 441.

Both the trial court and the Court of Appeal were at one, that based on the facts pleaded by the appellant, the tort of detinue comes into play. Detinue is defined to be a wrongful detention of a plaintiff’s chattel by a defendant, which is evidenced by the refusal of the defendant or his agent to deliver the chattel up on demand – see Alicia Hosiery Ltd. v. Brown, Shipley & Co., (1970) 1 Q.B. 195. Detention of the chattel is not wrongful unless the defendant’s possession is adverse to the plaintiff’s right. It follows, therefore, that it is not a wrong to omit to deliver the goods to the plaintiff where there is no contractual duty or duty as bailee so to do and where there is no intention to keep the goods in defiance of the plaintiff – Capital Finance Co. Ltd. v. Bray (1964) 1 WLR 323.

It is not in doubt from the pleadings in the statement of claim that Mr. Fadipe had pledged the Land Certificate to the respondents on receipt of a deposit of N150,000.00 from the respondents. Consequently, although there is no contractual agreement between the appellant and the respondents, it is not in doubt that the latter are holding on to the Land Certificate in adversity to the former’s possession. The respondents’ reason for holding on to the certificate is due to the pledge by Mr. Fadipe to them. Pledge is interchangeable with pawn and both have been defined to mean “a bailment of personal property as security for some debt or engagement”. – see Halsbury s Laws of England, 4th Edition, Volume 36 (1) paragraph 101 at p. 72.

While the tort of detinue may not operate as between the appellant and the respondents, the same is not true of the relationship between the respondents and Mr. Fadipe, because of the pledge by Mr. Fadipe to the respondents as pawnees or pledgees. At common law the capacity of a person to enter into a contract of pawn is governed by the same rules as applicable to contracts in general. Thus if the pawnor has no authority to make the pledge, the pawnee cannot hold the goods or property against the real owner Williams v. Barton, (1825) 3 Bing. 139, Ex Ch.; unless the owner has so acted as to clothe the pawnor with apparent authority to make the pledge – Fry and Mason v Smellie and Taylor, (1912) 3 KB 282 CA; and Fuller v. Glyn, Mills, Currie & Co. (1914) 2 KB 168. This is not the position in the present case, the Appellant did not in any way authorise Mr. Fadipe to pledge the Land Certificate. The general rule, with regard to the right of a true owner of pawned goods or property is that in order to make the pawn valid against the owner, it must be shown that the pledger has authority to pawn – See Cole v North Western Bank, (1875) LR 10CP 354 at pp. 362 -363, Ex Ch.

From the foregoing it follows that the facts contained in the appellant’s statement of claim have not disclosed detinue as a cause of action available to the appellant against the respondents; but it cannot be doubted that the facts disclosed a reasonable cause of action against the respondents with regard to the pledge to them by Mr. Fadipe. For it stands to reason and common sense that Mr. Fadipe did the wrong thing by pledging the title certificate to the respondents without the authority of the appellant. Surely, this is sufficient to give rise to a cause of action if even not by way of detinue. In the circumstances the appellant cannot be made to suffer for the wrongful act of Mr. Fadipe. Although the Court of Appeal made reference to the pledge by Mr. Fadipe it did not advert to the implication of Mr. Fadipe making the pledge without the authority of his client- the appellant. If the learned Justices had done so, they would have come to the conclusion, particularly in the light of the averment in paragraph 17 of the statement of claim, that the appellant had a reasonable cause of action against the respondents as disclosed therein.

With regard to the point that the necessary parties were not before the trial court on the face of the statement of claim, it is true that Mr. Fadipe was not joined in the action by the appellant at the time she took out the Writ of Summons and filed the statement of claim. This she could have done by amending the statement of claim to join Mr. Fadipe as co-defendant. However, at the time the respondents brought the application to strike out the statement of claim (the 31st October, 1989), they had earlier on made Mr. Fadipe a third party to the action on the 9th day of May, 1989. They therefore could not be heard to complain that the proper parties were not before the trial Court and that to be a reason for asking the trial court to strike out the statement of claim. It would have been an exercise in futility for the appellant to apply by October, 1989 to join Mr. Fadipe as a co-defendant in the action since he had been made so on the third-party application by the respondents.

In conclusion, the appellant’s action cannot be considered to be an abuse of the process of the court since the statement of claim has, as shown, disclosed a reasonable cause of action against the respondents.

In the result, I allow the appeal, and set aside the judgment of the Court of Appeal and restore the ruling of the trial court though for a different reason. The case is hereby remitted to the High Court of Lagos State for the trial to commence without further delay. Costs assessed at N10,000.00 shall be paid by the respondents to the appellant.

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SC.172/1995