Abudu Salami Keshinro V Lasisi Bakare And Others (1967)

LawGlobal-Hub Lead Judgment Report

LEWIS, J.S.C

In this suit No. 1/237/62 in the Ibadan High Court, Ademola, J. (as he then was) on the 13th of January, 1965, non-suited the plaintiffs and awarded 20 guineas costs to the first defendant and 70 guineas costs to the second defendant. Against that decision the second defendant has appealed on the ground that the learned trial Judge should have dismissed the action rather than have ordered a non-suit of the plaintiffs. The plaintiffs for their part sought to cross-appeal on the grounds that the learned trial Judge wrongly refused them leave to amend their writ and against the amount of costs he awarded, but on a preliminary objection by the counsel for the defendants that leave was needed and had not been granted we ruled as follows:-

“Ruling: We hold that the order refusing leave to amend was an interlocutory order and as no leave to appeal has been obtained there is no appeal properly before the court. There is also no appeal against the order for costs properly before the court. Notice of the preliminary objection was served 6 days ago and we refuse an adjournment for the purpose of asking for leave out of time.

The cross-appeal is struck out. Costs will be dealt with on the main appeal.”

The plaintiffs in their writ claimed:-

“(a)An order setting aside the unauthorised sale of all that piece or parcel of land forming part of plaintiffs family land, known as Imalefalafia, situate at Oke-Ado, Ibadan, originally belonging to the plaintiffs’ ancestor, Chief Osundina Osi, deceased, wrongly made by second defendant to the first defendant without the knowledge and consent of the plaintiffs, under and by virtue of the conveyance dated the 25th day of November, 1958 and registered as No. 58 at page 58 in Volume 285 in the Office at Ibadan.

(b) An order setting aside the unauthorised deed of conveyance dated 25th November, 1958 and registered as No. 58 at page 58 in Volume 285 in the lands Office at Ibadan under which the second defendant made the unauthorised sale to the first defendant.

(c) Injunction restraining the first defendant, his servants and/or agents from entering the said piece or parcel of land or in any way dealing or interfering therewith without the permission of the plaintiffs.”

yet in their Statement of Claim they did not refer in any way to this 1958 conveyance which in their writ they sought to have set aside, but instead concluded the Statement of Claim as follows:-

“On the 24th day of January, 1961, without the knowledge and consent of the plaintiffs, the second defendant purported to sell a portion of the plaintiffs’ family land to the first defendant at a price of £100 (one hundred pounds) and wrongfully conveyed the same to him in a deed dated 24th January, 1961 and registered as No. 24 at page 24 in Volume 428 of the Lands Registry at Ibadan, Nigeria, as per plan filed with this Statement of Claim.

The plaintiffs therefore claim as per writ of summons.”

The defendants took no preliminary objection to the inconsistency between the writ and the Statement of Defence dealing with the 1961 conveyance referred to in paragraph 14 of the Statement of Claim, quoted above, and relied upon it as giving a valid title to the first defendant. When the case came for trial, however, the defendants took as preliminary point that the Statement of Claim did not support the writ and asked the learned trial Judge to dismiss the action, whilst the plaintiffs then asked leave of the court to amend their writ and their counsel according to the record submitted:-

“The second defendant purported to act under a deed No. 58/58/285. It is a mistake. The deed I wish to set aside is the one dated 24th January, 1961 and registered as No. 24/24/428. The deed of 25th November, 1958 was the deed the second defendant alleged empowered him to convey under the deed dated 24th January, 1961. I am asking for an amendment. I mentioned 25th November, 1958 twice in (a) and (b) in the writ, It is purely a mistake. The amendment would not mean a different claim. The deed between first and second defendant is the one of the 24th January, 1961. This Is one I wish to set aside.”

The learned trial Judge made his ruling refusing the plaintiffs’ application to amend their writ and then went on to uphold the submission of the defendants’ counsel but decided to non-suit rather than dismiss the action as he had been asked. The fact that he dealt with both issues in the same judgment did not in our view, having regard to Cummins v. Herron (1877) 4 Ch. D. 787 where Jessel M. R. said at page 788 –

“As regards the appeal from refusal of the application to vary the certificate, the rule is clear that on the refusal of an interlocutory application the time for appeal is twenty-one days from the refusal whether the order is drawn up or not. In this case much more than twenty one days have elapsed. The only new point is that this refusal to vary the certificate was made in an order which also contained an order on further consideration, which is a final order. But that makes no difference; although the orders are on the same piece of paper, yet one order is made on the interlocutory application and the other on further consideration.”

cease to make the ruling of the learned trial Judge as to the application to amend the writ an interlocutory ruling and we gave our ruling accordingly to which we have already referred in this judgment.

In arguing the appeal of the second defendant Mr. Agbaje has submitted that, following the principles in regard to a non-suit as enunciated by this court in Craig v. Craig 1967 N.M.L.R. 52 at 55 where we said:-

“Inevitably a non-suit means giving the plaintiff a second chance to prove his case. The Court has to consider whether in this case that would be wronging the defendant, and on the other hand whether the dismissal of the suit would be wronging the plaintiffs.”

it was wrong to non-suit here as it would enable the plaintiffs to bring a new case before the court as they had never sought to challenge the 1958 conveyance in their Statement of Claim. Mr. Babalakin for the plaintiffs for his part argued that the plaintiffs did wish to be able to question the validity or effect of the 1958 conveyance (he did not seem to us to be sure which) and as the defendants had never taken any initial objection to the obvious Inconsistency between the writ and the Statement of Claim, but each had pleaded to the Statement of Claim and only raised the Issue at the trial they would suffer no hardship by the decision.

He sought further to submit that in any case a Statement of Claim supersedes a writ and whilst this Court has pronounced that that in general terms is well settled in Udechukwu v. Okwuka (1956) 1 FSC 70 at page 71, we pointed out that that did not assist him here as they did not set out in the Statement of Claim what they really intended to claim in their writ, but in paragraph 15 thereof, which we have already quoted, claimed “as per writ of summons.” so there was no question of the general rule of supersession applying here as it was still necessary to refer to the writ.

We consider that the onus Is on the appellant to satisfy us that the learned trial judge was wrong to exercise his discretion in the way that he did by non suiting rather than by dismissing the plaintiffs’ action and we are not satisfied that he has discharged this burden. We do not see that the defendants have been “wronged” thereby. If the defendants had objected before pleading to the inconsistency then the pleading would, if no amendment had been allowed, in all probability have been struck out so that the defendants have lost nothing by the plaintiffs now being non-suited.

Indeed by delaying they seem successfully to have been awarded quite substantial costs by the learned trial judge so if anything they have gained by their delay, though we must here once again deprecate the practice of delaying to the last moment an objection which should more property have been taken at the first opportunity. The second defendant not having satisfied us that we would be justified in reversing the judgment of a non-suit given in the learned trial Judge’s discretion, this appeal is accordingly dismissed.

On this appeal the plaintiffs/ respondents are entitled to their costs which we assess at 28 guineas, but as the defendants/appellants succeeded in their preliminary objection to the cross-appeal and we reserved our decision as to costs in that regard we would award them 5 guineas costs in that respect.

The order of this Court is, therefore, that the appeal be dismissed with 23 guineas costs to the plaintiffs/respondents.

Other Citation: (1967) LCN/1532(SC)