C. Odunukwe V. Moses Taiwo Adebanjo (1999)

LawGlobal-Hub Lead Judgment Report

PATS-ACHOLONU J.C.A.

In the court below, the plaintiff now the respondent had claimed as follows:

“(i) A declaration that the plaintiff is entitled to the grant of a certificate of occupancy in respect of the place or parcel of land described as Plot 43 on the allotment of Magistrate Isaac John on plan No. AK 782 situate and being at Itire – Ikate near Iguru Mushin in Ikeja Division of Lagos State (now known and described as Plot 43, No.39 Ogunlana Street Aguda, Surulere, Lagos by virtue of the deed of conveyance dated 13/9/70 executed in favour of plaintiff by Isaac Sylvanus John and registered as No. 93 page 93 in volume 1131 of the Lands Registry in the office in Lagos.

(ii) Alternatively an order that the plaintiff is entitled to recover the said piece and parcel of land in view of the claim above.

On being served with the statement of claim the defendant filed his statement of defence in which he stated that he had been in undisturbed possession of the land since 1985. The plaintiff now the respondent filed in the court below a reply in which he asserted that in a previous action he instituted no suit No. LD/364/85 the defendant there had inordinately shielded the present defendant appellant by claiming the two plots thereby making it difficult for the plaintiff respondent to know the identity of the present defendant/appellant. The defendant then sought to file a rejoinder to the present claim but the court below refused. The court below had ruled as follows:

“There is a difference between amendment to pleadings and a rejoinder. Both these are provided in our rules and local order (sic) R.S.C. of England …”

It seems in this case the court had ruled that no damage can be done to the defence case if such rejoinder is included in amended statement of defence. The last order of that court is that the appellant includes such new facts in an amended statement of defence within 7 days from today?

Unhappy with this development the defendant filed, an appeal and framed two issues which are:

“(i) Was the learned trial Judge right in refusing to grant the defendant appellant leave to file his rejoinder.

(ii) Was the learned trial Judge right to make an order for defendant/appellant to amend his defence when that was not what he was asking for.”

In an application such as the one brought by the appellant in the court below, the court had a discretion to grant it or not but which ever stands it takes must be in the spirit of the law i.e. in accordance with the laid down rules of procedure for the time being enforceable in the court. Now it is manifestly evident that no provision for further pleadings after reply to the statement of defence is in the Lagos High Court rules, what does the court do when there is no local provision.

Section 12 of the High Court Law of Lagos State Cap. 50 states as follows:-

The jurisdiction vested in the High Court shall so far as practice and procedure are concerned be exercised in the manner provided by this or any other enactment by such rules and orders of court as may be made pursuant to this or any other enactment and in the absence of any such provisions in substantial conformity with the practice and procedure for the time being of the High Court of Justice in England. Order 18 rule 4 of English Supreme Court Practice contained in Vol. I of 1991 and extracted from R.S.P. 1962 4 states.”

“No pleading subsequent to a reply or a defence to counter claim shall be served except with the leave of court.”

In his application to file a rejoinder the defendant appellant through Uche Awa Esq. deposed as follows at paras. 6, 7 and 8 of the affidavit.

“That I am informed by counsel to the defendant Edwin Egede, Esq. whom I verily believe that as a result of certain averments in the plaintiffs reply to statement of defence he needed to get certain documents from the High Court.

That these documents were difficult to locate and were only located recently and the documents were obtained from the courts on the 15th of March, 1992.

That I am informed by the said Edwin Egede and I verily believe him that upon a study of the documents he found it necessary to file a rejoinder to the plaintiffs reply dated the 10th of October, 1992.

That I am informed by the said Edwin Egede, Esq. counsel to the Defendant, whom I verily believe that it is in the interest of justice that the rejoinder is filed and served on the plaintiff to clarify the new facts raised in the reply to the statement of defence.”

The respondent in disagreeing with the stand of the appellant in this matter referred the court to Order 25 rule 1 which he claimed was the procedure open to the defendant appellant. Order 25 rule 1 states:

“The court and Judge in chamber may at any stage of the proceedings allow either party to alter or amend his indorsement on-pleadings, in such manner and on such term/s as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.”

The entre point of the appellants’ case as evidenced from the affidavit in support is that the case of the appellants (as defendants in the court below) will be marshelled and succinctly put to enable him effectively challenge the case put forward by the respondents. It must be understood that as long as local provision can adequately deal with a particular state of affairs in that case we do not have to have resort to English rules. Where there is a slight deficiency in our rules, an aggrieved person can have recourse to English rules on the authority of section 12.

It seems to me that the provisions in the High Court rules of Lagos with respect to filing of pleadings and the rule in England which makes provision for rejoinder are not mutually exclusive. I believe they are alternate proceedings open to a litigant and he should not be fettered in resorting to a rule which he believes will advance his interests.

The aim of pleading is to enable parties to reflect all the relevant material facts which must feature in the pleadings and the court should steer clear of involving itself on how a litigant does his case as long as there has not been any breach of the rules. See Salami v. Oke (1987) 4 NWLR 1 at 17. It is not for the court in such an instance to try and make a case for the party and arrogate itself the power to make an order or grant prayer not specifically asked for. Thus in Ademola v. Sodipo (1987) 5 NWLR (pt.121) P.329 at 346 Akanbi, J.C.A. as he then was held.

“As a matter of general principle, a court should not grant reliefs which are not claimed by the parties before it.”A critical examination of the import of section 12 of Lagos High Court Act, leaves the impression that the appellant’s right to resort to Order 18 rule 4 of RSC England may lead to effectuate the resonance of his case. I am satisfied that Order 25 rule 1 does not foreclose any recourse to Order 18 rule of RSC of England and it is equally not intended to be exhaustive of the procedure that can be followed by the appellant pursuant to advancement of his case.

In the circumstances this appeal succeeds. The judgment of the court below is set aside. I make no order as to cost.

Other Citations: (1999)LCN/0515(CA)