IN THE SUPREME COURT OF NIGERA
ON FRIDAY, THE 10TH DAY OF JUNE 1976
SHELL BP PETROLEUM DEVELOPMENT CO. OF NIGERIA LTD & 5 ORS. ......................................... APPELLANTS
M.S. ONASANYA ........................................................ RESPONDENT
BEFORE: Sowemimo, Madarikan JJ.S.C. Obaseki, Ag. J.S.C.
The defendant applied under Order 32, r.19 of the Supreme Court Rules 1945 (then applicable) for dismissal of the plaintiff's action for wrongful dismissal on the ground that it disclosed no cause of action. The trial Judge held that considered with the statement of defence the statement of claim disclosed a cause of action, and he refused the application.
(1) Where the action is founded on contract, and the statement of claim fails to give sufficient particulars to enable the contract to be identified, it discloses no cause of action.
(2) In considering whether to strike out a pleading under the said Order 32, r.19 the court must restrict itself to the facts in the particular pleading without having recourse to the facts in the opponent's pleading.
APPEAL allowed. Statement of claim and plaintiff's case struck out.
G.O.K. Ajayi (Miss M. Bassey with him) for the appellants.
K. Sofola for the respondent.
Madarikan, J.S.C. (delivering the judgment of the Court):-In the High Court, Lagos (Suit No. LD/1050/1971) the plaintiff's (now respondent's) claim against the defendants, now appellants, as endorsed in the writ was for
N140,000 damages for wrongful termination of his appointment from the service of the 1st defendant as a Systems Designer (computers).
After the parties had filed their pleadings, the case was set down for hearing on the 19th and 20th October, 1972. The defendants then sought an order for further and better particulars of the various matters listed in their application. The application related to paragraph 1, 13, 14, 17, 19 and 20 of the statement of claim. Dosunmu J. heard arguments on the application and made the following order on the 22nd of May, 1972:-
"That the plaintiff shall within 14 days give further and better particulars sought in paragraphs 1, 17, 19 and 20 of the statement of claim and also paragraph 13 but without mentioning any particular defendant."
In compliance with the said order, the plaintiff filed some particulars which the learned judge had occasion to describe as follows in his ruling given on the 8th of January, 1973:-
"After a careful perusal of the particulars so filed, I am clearly of the view that rather than helping to define and limit the issues in this case, what has been filed has only succeeded in befogging them."
He concluded the ruling this:-
"It seems to me that my clear duty is decided the consequences for the plaintiff in failing to comply with the order directing him to file further and better particulars of certain matters in paragraphs, 1, 13, 17, 19 and 20 of the statement of claim.
The orders which I make are that paragraphs 1, 13 and 17 of the statement of claim be struck out.
Paragraphs 19 and 20 of the statement of claim shall remain with the further particulars given stating that the 5th and 6th defendants are accusers and the 2nd, 5th, 6th defendants are the judges. But no evidence of any irrelevant matters pleaded in paragraph 20 shall be given at the trial."
Consequent upon that ruling, the defendants, filed a motion dated 24th of January, 1973 under Order 32 rule 19 of the Civil Procedure Rules applicable at the material time in the High Court, Lagos. It reads as follows:-
"19. The court may 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 defendant, as the case may be, or may make such other order, and upon such terms and conditions, as may seem just."
In the motion, the defendants sought an order dismissing the plaintiff's action on the ground that it discloses no cause of action. In refusing the motion on the 15th of May, 1973, Bakare, J. said:-
"The statement of claim contains 22 paragraphs three of which were struck out while two are allowed to remain with the particulars furnished. When the remaining paragraphs of the statement of claim are considered dispassionately along with the statement of defence especially paragraphs 4, 5 and 6 of the statement of defence, it will become clear that a cause of action is disclosed. The application will be and it is hereby refused."
The defendants are dissatisfied with that decision and have appealed to this Court.
Before us on appeal, it was the contention of Mr G.O.K. Ajayi, learned Counsel for the appellants that:-
(1) after paragraphs 1, 13 and 17 of the statement of claim had been struck out, the remaining averments in the pleading did not disclose a cause of action as the contract of employment allegedly breached by the defendants was not pleaded;
(2) in deciding whether a cause of action was disclosed, the learned judge ought to have restricted himself to the averments in the statement of claim. Counsel strenuously argued that Order 32 rule 19 did not empower or permit the judge to make reference to or to rely on averments in the statement of defence.
In his reply, learned Counsel for the respondent, Mr K. Sofola, pointed out that both parties had filed their pleadings and the case had been fixed for hearing, before the defendants filed their motion. He submitted that the proceedings had reached an advanced stage, and that as it was the duty of the court to ensure that justice was done, the learned judge was entitled to look at the statement of defence and make use of any averments therein.
It is not disputed that this action is founded on contract. The plaintiff must therefore give sufficient particulars in his pleading to enable the contract to be identified. This he has failed to do. On a proper construction of Order 32 rule 19, in considering whether to strike out a pleading, the court must restrict itself to the facts in the particular pleading without having any recourse to the facts in the opponent's pleading. In our view, there can be no question that as the statement of claim in this case now stands, it discloses no cause of action and ought to have been struck out under Order 32 rule 19 by the learned trial Judge.
This appeal must therefore be allowed and it is hereby ordered accordingly. The ruling of Bakare, J. in Suit No. LD/1050/1971 dated 15th of May, 1973, refusing the defendants' application is hereby set aside. The statement of claim is hereby struck out under Order 32 rule 19 but having regard to the circumstances of this case, we are convinced that justice demands that the plaintiff should not be deprived of his right to a plenary trial; and, for that reason, it is hereby ordered that the plaintiff's case be struck out.
The plaintiff/respondent shall pay costs to the defendants/appellants assessed at
N208 in this Court and N50 in the court below.