⦿ CASE SUMMARY OF:
Mrs. Florence Omotayo Labode v. Dr. Godfrey Otubu & Anor (2001) – SC
Cause of action;
1. Mrs. Florence Omotayo Labode
1. Dr. Godfrey Otubu
2. Cutavon (Nigeria) Ltd.
(2001) 7 NWLR (Pt.712) 256;
(2001) 3 S.C 15;
⦿ LEAD JUDGEMENT DELIVERED BY:
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Mr. Badejo.
* FOR THE RESPONDENT
– Mr. Popoola.
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.
At the High Court, the defendants filed an objection for the suit to be dismissed claiming that it does not contain a reasonable cause of action – that the action ought to be brought under detinue. The trial Judge dismissed this objection. The defendants appealed to the Court of Appeal which allowed the appeal and struck out the statement of claim.
The Plaintiff at the trial Court has appealed to this Court herein.
Whether the writ of summons and the statement of claim disclose reasonable cause of action?
⦿ HOLDING & RATIO DECIDENDI
i. 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.
ii. 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.
⦿ SOME PROVISIONS
Order 22 rule 4 of the High Court of Lagos State (Civil Procedure) Rules which provides as follows:
“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 a 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.”
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
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. – Uwais, JSC. Labode v. Otubu (2001)
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. – Uwais, JSC. Labode v. Otubu (2001)
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. – Uwais, JSC. Labode v. Otubu (2001)
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. – Uwais, JSC. Labode v. Otubu (2001)
For once there is a wrong there must be a remedy. A wrong must not necessarily be remediable under a known head of tort before it is justiciable. – Onu, JSC. Labode v. Otubu (2001)
Simply put, the issues, with due respect are: can a Solicitor validly pledge a clients document that came into his possession during the course of his professional duties in such a way as to bind the client without the client’s authority and concurrence? When the Solicitor pledges the document or goods of a client without authority, can the client institute an action to recover the document or goods pledged from the 3rd party (pledgee) will such an action disclose a reasonable cause? (Italics is for emphasis.) For an answer, I wish to stress that a Solicitor has absolutely no right to convert the client’s property in his possession to his personal use. He can only do whatever is covered by his instructions. Just as the solicitor cannot convey a right of title to the property on the defendants, he cannot by the same token pledge a title deed and property which does not belong to him. – Onu, JSC. Labode v. Otubu (2001)
In any event, in the circumstance, such as this, where the pawning was without the authority of the owner, the plaintiff, it has no validity against her and accordingly she could sue the pawnee for the return of the good pawned. Thus even without the joinder of the third party the plaintiff’s action against the defendants, as pawnees of the Certificate is well-founded for its return and for damages; see Halsburys Laws of England (4th ed.) vol. 36(1), para 138. – Achike, JSC. Labode v. Otubu (2001)
The same principle is applicable to bailment. Bailment, we should bear in mind, like most cases of agency, originates in agreement of the parties. If the bailee does an act which is contrary to the bailment, the bailor has the right to sue the bailee for possession of the goods bailed or, indeed, sue any person to whom the bailee has transferred the possession of the goods. – Achike, JSC. Labode v. Otubu (2001)
If as has been stated earlier that Mr. Fadipe lacked authority to pledge the Land Certificate, the purported pledge of same to the defendants was legally an exercise in futility because he (Mr. Fadipe) had nothing to pledge, and so could never defeat the right of the plaintiff, the undisputed real owner of the Land Certificate. It is therefore my view that if the Court of Appeal had given a second hard look at the fact that the purported pledge of the Certificate was a sham because of lack of authority so to do by Mr. Fadipe, it would have arrived at a different conclusion of the matter and undoubtedly would have held that the fact averred in the plaintiff’s statement of claim disclosed a reasonable cause of action. – Achike, JSC. Labode v. Otubu (2001)
The summary of what I have been saying is that where, the following circumstances, as in this case, exist, namely that – (a) the plaintiff did not authorise her agent to pledge of pawn of the Certificate to the defendants; (b) the plaintiff was not a party to the transaction, and (c) accordingly, the defendants’ continued detention or retention of the Certificate is unjustifiable and wrongful, then, the law will accede to the plaintiff’s relief for the return of her Certificate after due demand for its return has been made. This is in consonance with what I had stated earlier that the tort of detinue arises where there is a wrongful detention or retention of the possession of chattel by the defendant and it is immaterial how the possession of the chattel was acquired and there is a refusal to return same after a demand to do so by the plaintiff. – Achike, JSC. Labode v. Otubu (2001)
The gist of the reasoning of the Court of Appeal is that since the defendants had come into possession of the document by way of pledge, the plaintiff’s statement ought to have contained an averment that she had offered to pay the loan made to Mr. Fadipe before her cause of action in detinue could be complete. It will be a strange thing if the Court of Appeal was right in its view. Suppose I had left my car with a mechanic for him to effect minor repairs on it. When I returned to collect my car he could not deliver it to me because he had pledged it for a loan of N1 million Naira. Do I have to offer to pay a debt about which I knew nothing and for which I did not authorise him to pledge my car before I could retrieve my car? The consequence of the decision of the Court of Appeal is that I must offer to pay the debt before I could sue for my car. – Ayoola, JSC. Labode v. Otubu (2001)
The action of detinue is available to anyone who claims property in goods against another who is in possession of the goods. The gist of the action is the wrongful detention of the goods. The original taking may be lawful but once the detention becomes wrongful the action will lie. The detention becomes wrongful if the defendant has no reasonable justification for retaining the goods after a demand has been made for their return and the refusal is unconditional. – Ayoola, JSC. Labode v. Otubu (2001)
A “pawnor” is one who, being liable to an engagement, gives to the person to whom he is liable a thing to be held as security for the payment of his debt or the fulfillment of his liability. A “pawnee” is one who receives pawn or pledge (see Vol. 36 (1), Halsbury s Law of England (4″ Edition) para 101). – Ayoola, JSC. Labode v. Otubu (2001)
A pawn is not valid against the owner of the goods pawned where the pawnor has no authority to pawn. The law is clearly stated in Halsbury’s (Op. Cit) at para 138 that: “Where goods have been wrongly pawned the true owner may maintain an action for conversion against the pawnor He may also maintain an action against the pawnee. In such a case the measure of damages is the value of the goods converted, but as an alternative to an order for damages the court may order delivery up of the goods concerned.” – Ayoola, JSC. Labode v. Otubu (2001)
A third party notice is served where a defendant claims against a party not already a party to the action, inter alia, that he is entitled toÂ Â contribution or indemnity; or, that any question or issue relating to or concerned with the said subject matter is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and the defendant and the third party or between any or either of them. – Ayoola, JSC. Labode v. Otubu (2001)
Before the abolition of the tort of detinue in 1977 the distinction between detinue and conversion was that in the former all that was required to found an action was mere possession adverse to the rights entitled to possession. There was no need to aver as the case would have been in an action in conversion, that the defendant intended to deal with the goods in a way inconsistent with the right of the plaintiff. Often, however, a refusal to deliver up the goods after a demand has been made was treated as a conversion. Thus, in practical terms, the distinction between the two torts had become blurred even before 1977. – Ayoola, JSC. Labode v. Otubu (2001)
In my opinion it is not how the cause of action is described that is material but what facts have to be averred to support a relief that the law recognises and the court will grant. – Ayoola, JSC. Labode v. Otubu (2001)
I venture to think that every detention of another man’s property is, prima facie, wrongful, until justification for the detention is proved. – Ayoola, JSC. Labode v. Otubu (2001)