3PLR – TOTAL OIL PRODUCTS (NIG.) LTD. V. AGBONMAGBE BANK LTD
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS – 3PLR
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TOTAL OIL PRODUCTS (NIG.) LTD.
V.
AGBONMAGBE BANK LTD
SUPREME COURT OF NIGERIA
S.C. 324/1964,
11TH FEBRUARY. 1966.
3PLR/1966/110 (SC)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS:
SIR LIONEL BRETT. J.S.C. (Presided)
GEORGE BAPTIST AYODOLA COKER, J.S.C. (Read the Judgment of the Court)
CHUKWUNWEIKE IDIGBE, J.S.C.
MAIN ISSUES
PRACTICE AND PROCEDURE – Pleadings – Claim for negligence – What must be pleaded.
PRACTICE AND PROCEDURE – Pleadings – Object of.
TORT AND PERSONAL INJURY – Negligence – What and how plaintiff must plead.
REPRESENTATION
- A. Peter Thomas -for the Appellants.
- K. I. Makanju (with him, Williams (Mrs)) -for the Respondents.
COKER, J.S.C. (Delivering the Judgment of the Court): The appellants were the plaintiffs in an action instituted at the Lagos High Court against the respondents who were the defendants there. As on the Writ the claim of the plaintiffs against the defendants is for £5,000 damages for negligence “in that the defendants detained for an unreasonable period unpaid cheques before returning them, which cheques were drawn upon the defendants and made payable to the plaintiffs . . . . . . . . . . . , . . . . . . , . . . . . . , whereby the plaintiffs suffered damage by the said negligence of the defendants”.
An order was made for pleadings to be filed and delivered. The plaintiffs duly filed and delivered their Statement of Claim. By that Statement of Claim the plaintiffs averred that they are a limited liability company and that the defendants are bankers with head offices in Lagos and branches in other parts of the country; that on various dates between the 16th December, 1961, and the 17th January, 1962, they paid into their banking account with the United Bank for Africa Ltd., for clearance, four cheques drawn in their favour on the defendants’ branch at Ifo by a customer of the defendants and that the defendants returned the cheques unpaid and marked “refer to drawer” on the 25th January, 1962; whereas in the meantime the plaintiffs had assumed that the cheques had been paid and had continued to supply the customer with petroleum products and give him credit. The Statement of Claim further averred that on various dates between the 8th January, 1962, and the 19th January, 1962, the plaintiffs paid into their banking account with the United Bank for Africa Ltd., for clearance, four cheques drawn in their favour on the defendants branch at Ifo by another customer of the defendants and the defendants returned the four cheques on the 25th January, 1962, unpaid and marked “refer to drawer”; whereas in the meantime the plaintiffs had assumed that the cheques had been paid and continued to supply the customer with petroleum products and give him credit. The Statement of Claim finally averred that neither of the two customers of the defendants had paid up any part of the amounts involved on their several cheques and that indeed neither had any properties which could be attached for sale by the plaintiffs and the concluding paragraphs of the Statement of Claim read as follows:
“The plaintiff alleges that by the defendant negligently keeping the said cheques for an abnormal period before informing the plaintiff or its bankers that they had been dishonoured it has cost the plaintiff the loss of the monies involved.
Wherefor the plaintiff claims as per the Writ of Summons”.
The defendants did not file or deliver any pleadings. They applied by motion for an order either dismissing the action under Order 28 of the Rules of the Supreme Court or striking out the Statement of Claim under Order 32 of the same Rules. The defendants contended before the High Court as they did before us, that the Statement of Claim does not disclose a cause of action in negligence as it does not show that the defendants owe any duty of care to the plaintiffs and also that it was not possible in the circumstances postulated by the Statement of Claim to establish such a duty. For the plaintiffs it was argued before the High Court and before us that the defendants having kept the cheques for the periods stated, their delay was unreasonable and they were therefore liable in negligence for damages suffered by the plaintiffs on the transactions concerned.
The learned trial Judge ruled that the plaintiffs’ statement of claim does not disclose a cause of action in negligence and struck it out. He did not consider the application under Order 28 but rather made an Order under Order 32 Rule 19 of the Rules of the Supreme Court. We are of the view that on the Statement of Claim as it now is the Judge’s Order is a correct one. Order 32 Rule 5, which deals with pleadings, provides as follows:
“Every pleading shall contain a statement of all the material facts on which the party pleading relies but not the evidence by which they are to be proved, such statement being divided into paragraphs numbered consecutively and each paragraph containing as nearly as may be a separate allegation.”
As stated before, the plaintiffs’ claim against the defendants is for damages for negligence and it does follow that the plaintiffs must in their pleadings state all the material facts and circumstances from which they will like the court to infer that a legal duty exists on the part of the defendants towards the plaintiffs and the breach of which duty has occasioned the loss or damage which is the complaint in the action.
In Gautret v. Egerton (1867) L.R. 2 C.P. 371, a similar point was decided and in the course of his judgment, Willes, J. observed as follows:
“I am of the opinion that our judgment must be for the defendants ………………………. the argument urged on behalf of the plaintiffs when analysed amounts to this that we ought to construe the general words of the declaration as describing whatever sort of negligence the plaintiffs can prove at the trial. The authorities, however, and reason and good sense are the other way. The plaintiff must in his declaration give the defendant notice of what his complaint is …………………………………… What is it that a declaration of this sort should state in order to fulfill those conditions? It ought to state the facts upon which the supposed duty is founded and the duty to the plaintiff with the breach of which the defendant is charged. It is not enough to show that the defendant has been guilty of negligence without showing in what respect he was negligent and how he became bound to use care to prevent injury to others.”
The object of pleadings is to state and fix the issues which would be raised at the trial and where, as in the present case, the plaintiffs claim in negligence, particulars must be given in the Statement of Claim showing in what respects the defendants were negligent; and this manifestly means that the plaintiffs must set out the facts upon which the supposed duty is founded; they must follow this up by an allegation of the precise breach of that duty which is complained of and thereafter particulars of the injury and damage resulting from the infraction of the duty. The Statement of Claim in the present proceedings evidently falls short of those requirements and it is impossible to say otherwise of it than that it does not disclose a cause of action in negligence.
We have not considered it necessary to deal with the submissions of counsel for the appellants that in appropriate circumstances a bank may be liable in negligence to a customer of another bank; equally so with the argument by counsel for the respondents that under no circumstances can liability in negligence be founded on a transaction between a bank and a customer of another bank who has sent in a cheque for clearance through his own bankers. In dismissing the present appeal we have considered only the adequacy or otherwise of the Statement of Claim and will observe that in pleading negligence it is well to bear in mind the observations of Lord Macmillan in Donoghue (or McAlister v. Stevenson (1932) A.C. 562 at p. 618 as follows:
”The law takes no cognisance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage. In such circumstances, carelessness assumes the legal quality of negligence and entails the consequences in law of negligence.”
We have already stated that we agree with the learned trial Judge that the Statement of Claim did not contain sufficient particulars to show a cause of action in negligence, but if sufficient particulars to make the basis of the claim clear were pleaded, the action ought not to be dismissed under the summary process unless it was obviously unsustainable: Attorney-General of Duchy of Lancaster vs. L. & N. W. Railway Co. (1892) 3 Ch. 274. We are not prepared to hold so at present and we think it right to supplement the order made by the trial Judge. Order 32 Rule 19 of the Rules so far as it is material is as follows:
“19. 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 ……………………………… 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 he or may make such other order and upon such term, and conditions as may seem just.”
The learned trial Judge struck out the Statement of Claim but made no further order. We think. therefore, that the plaintiffs should be given an opportunity to file an amended Statement of Claim. We make the following Orders:
This appeal is dismissed with costs fixed at 35 Guineas parable to
The defendants did not file or deliver any pleadings. They applied by motion for an order either dismissing the action under Order 28 of the Rules of the Supreme Court or striking out the Statement of Claim under Order 32 of the same Rules. The defendants contended before the High Court as they did before us, that the Statement of Claim does not disclose a cause of action in negligence as it does not show that the defendants owe any duty of care to the plaintiffs and also that it was not possible in the circumstances postulated by the Statement of Claim to establish such a duty. For the plaintiffs it was argued before the High Court and before us that the defendants having kept the cheques for the periods stated, their delay was unreasonable and they were therefore liable in negligence for damages suffered by the plaintiffs on the transactions concerned.
The learned trial Judge ruled that the plaintiffs’ statement of claim does not disclose a cause of action in negligence and struck it out. He did not consider the application under Order 28 but rather made an Order under Order 32 Rule 19 of the Rules of the Supreme Court. We are of the view that on the Statement of Claim as it now is the Judge’s Order is a correct one. Order 32 Rule 5, which deals with pleadings, provides as follows:
“Every pleading shall contain a statement of all the material facts on which the party pleading relies but not the evidence by which they are to be proved, such statement being divided into paragraphs numbered consecutively and each paragraph containing as nearly as may be a separate allegation.”
As stated before, the plaintiffs’ claim against the defendants is for damages for negligence and it does follow that the plaintiffs must in their pleadings state all the material facts and circumstances from which they will like the court to infer that a legal duty exists on the part of the defendants towards the plaintiffs and the breach of which duty has occasioned the loss or damage which is the complaint in the action.
In Gautret v. Egerton (1867) L.R. 2 C.P. 371, a similar point was decided and in the course of his judgment, Willes, J. observed as follows:
”I am of the opinion that our’ judgment must be for the defendants ………………………. the argument urged on behalf of the plaintiffs when analysed amounts to this that we ought to construe the general words of the declaration as describing whatever sort of negligence the plaintiffs can prove at the trial. The authorities, however, and reason and good sense are the other way. The plaintiff must in his declaration give the defendant notice of what his complaint is …………………………………… What is it that a declaration of this sort should state in order to fulfill those conditions? It ought to state the facts upon which the supposed duty is founded and the duty to the plaintiff with the breach of which the defendant is charged. It is not enough to show that the defendant has been guilty of negligence without showing in what respect he was negligent and how he became bound to use care to prevent injury to others.”
The object of pleadings is to state and fix the issues which would be raised at the trial and where, as in the present case, the plaintiffs claim in negligence, particulars must be given in the Statement of Claim showing in what respects the defendants were negligent; and this manifestly means that the plaintiffs must set out the facts upon which the supposed duty is founded; they must follow this up by an allegation of the precise breach of that duty which is complained of and thereafter particulars of the injury and damage resulting from the infraction of the duty. The Statement of Claim in the present proceedings evidently falls short of those requirements and it is impossible to say otherwise of it than that it does not disclose a cause of action in negligence.
We have not considered it necessary to deal with the submissions of counsel for the appellants that in appropriate circumstances a bank may be liable in negligence to a customer of another bank; equally so with the argument by counsel for the respondents that under no circumstances can liability in negligence be founded on a transaction between a bank and a customer of another bank who has sent in a cheque for clearance through his own bankers. In dismissing the present appeal we have considered only the adequacy or otherwise of the Statement of Claim and will observe that in pleading negligence it is well to bear in mind the observations of Lord Macmillan in Donoghue (or McAlister v. Stevenson (1932) A.C. 562 at p. 618 as follows:
”The law takes no cognisance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage. In such circumstances, carelessness assumes the legal quality of negligence and entails the consequences in law of negligence.”
We have already stated that we agree with the learned trial Judge that the Statement of Claim did not contain sufficient particulars to show a cause of action in negligence, but if sufficient particulars to make the basis of the claim clear were pleaded, the action ought not to be dismissed under the summary process unless it was obviously unsustainable: Attorney-General of Duchy of Lancaster vs. L. & N. W. Railway Co. (1892) 3 Ch. 274. We are not prepared to hold so at present and we think it right to supplement the order made by the trial Judge. Order 32 Rule 19 of the Rules so far as it is material is as follows:
“19. 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 ……………………………… and the court may either give (cave 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.”
The learned trial Judge struck out the Statement of Claim but made no further order. We think, therefore, that the plaintiffs should be given an opportunity to file an amended Statement of Claim. We make the following Orders:
This appeal is dismissed with costs fixed at 25 guineas payable to the respondents by the appellants. the case is remitted to the High Court, Lagos for the appellants, if they be so advised, to ask for leave to file an amended Statement of Claim.
BRETT, J.S.C.: I concur.
IDIGBE, J.S.C.: I concur.
Appeal dismissed.
