Isamotu Otanioku V. Lawal Mustafa Alli (1977)
LawGlobal-Hub Lead Judgment Report
A. R. ALEXANDER, C.J.N.
“The plaintiff’s claim against the defendant is for -(i) declaration of title to all that piece or parcel of the plaintiff’s land at Idi-Iroko Olomoyoyo on the Lagos/Ibadan road;(ii) injunction to restrain the defendants, his servants and agents from further trespassing on the said land;(iii) 200.00 damages for alleged trespass. Annual rental value is 30.00”
Pursuant to an order for pleadings made by the High Court of the former Western State he filed a Statement of Claim in paragraph 3 of which he averred that the land in dispute was at Idi-Iroko Olomoyoyo on the Lagos/Ibadan road. The defendant/appellant, in paragraph 2 of his statement of defence denied paragraphs 2 to 16 of the plaintiff’s statement of claim and put the plaintiff to the strict proof of all allegations therein contained. The respondent made two applications to amend the original Statement of Claim. In the second application he included a prayer to amend the Writ of Summons and he was duly granted leave to file and serve an amended Writ of Summons and Statement of Claim within five days from January 31, 1972.
In the amended Writ of Summons attached to the motion papers (as “annexure A”) in the second application, the respondent sought to amend his claims to read as follows: –
“(i) declaration of title to all that piece or parcel of land of the plaintiff at Podo on Ijebu road, Ibadan …”
Claims (ii) and (iii) were not affected. Paragraph 3 of the amended Statement of Claim filed and served on the appellant and relied on at the trial in the High Court reads thus –
‘The plaintiff is the owner of the piece or parcel of land situate, lying and being at Podo, Ijebu road, Ibadan by a deed of conveyance registered as instrument number 9 at page 9 in volume 1216 in the Land Registry at Ibadan, Western State of Nigeria (hereinafter referred to as the “said land)”.
It is apparent from the record of proceedings that although this amended Statement of Claim was filed, an amended Writ of Summons was never filed as ordered by the High Court. In the face of well-established authority, therefore, the Statement of Claim in the suit superseded the original Writ of Summons. See Udochukwu v. Okwuka (1956), 1FSC 70. Further, having regard to his failure to comply with the order of the High Court that the original Writ of Summons be amended, the respondent was left in the awkward position of having to rely solely on his last amended Statement of Claim in prosecuting this action.
After trial of the action in the High Court, the learned trial Judge delivered a brief judgment in which he concluded that there was no evidence before him to support the plaintiff’s claims and dismissed the action. The Court of Appeal of the Western State of Nigeria (before its abolition) to which the plaintiff/respondent appealed, allowed his appeal, set aside the judgment and orders of the High Court, and entered judgment in his favour, declaring him to be the owner of the land at Podo and restraining the defendant/respondent from entering upon the land. The dismissal by the High Court of the claim for trespass against the defendant/appellant was, however, affirmed by the Court of Appeal.
The defendant/appellant then appealed to this court against the decision of the Court of Appeal. During the course of argument by learned counsel for the appellant two points clearly emerged. The first point was that the evidence accepted by the learned trial Judge cast serious doubts as to the identity of the land in dispute at the trial and, in particular, as to whether issue had been joined between the parties in respect of the same land. The relevant portions of the judgment read as follows: –
“So the situation is that the plaintiff in his Writ of Summons is claiming for a piece of land at Idi-Iroko Olomoyoyo but in his amended statement of claim and evidence he is claiming for a piece of land at Podo. These are definitely two places and no evidence to explain this material contradiction.” …”
“On the other hand the defendant says that the land over which the plaintiff is fighting him is at Opere and not at Podo and that Opere and Podo are both about a quarter of a mile apart.”
Indeed, the defendant/appellant testified under cross-examination –
“I thought the plaintiff was fighting me in respect of my father’s land at Opere. I have no land at Podo.”
It therefore does not appear to us that any issue was joined between the parties in connection with any dispute as to title to the land claimed by the plaintiff/respondent which, according to him, is situated at Podo and which, according to the only available evidence, the evidence of the defendant/appellant, is about a quarter of a mile from the land of the defendant/appellant, that is, the land at Opere which he claims to be his father’s land.
The Court of Appeal in effect based its decision to allow the plaintiff’s appeal on the fact that the defendant did not dispute the plaintiff’s claim. The relevant portions of that court’s judgment read as follows: –
“If the claim of the appellant was not disputed, we cannot see the justification for asking him to give any further proof than he has given” ….
“But the appellant’s evidence on his ownership of the land at Podo, which remains unchallenged, and the admission in the respondent’s evidence that he had no interest in the appellant’s land at Podo, i.e., the land in dispute, are sufficient to entitle the appellant to judgment on his claim for declaration of title.”
What the Court of Appeal failed to appreciate is the fact that the land of the plaintiff at Podo was not at all in dispute, since the defendant did not lay claim to any title, right, or interest in any land at Podo. Land tenure in this country would become a fertile field for fraudulent practices and devices if A could choose to sue B, a stranger to land in dispute with no interest whatever in it, and obtain a declaration of title.
It further became evident during the submissions of learned counsel for the plaintiff/respondent that there was no claim for any relief whatsoever in the amended Statement of Claim relied on at the trial, which had superseded the Writ of Summons in which reliefs were claimed in respect of a different piece or parcel of land, namely, land at Idi-Iroko Olomoyoyo, and not the land at Podo of which the plaintiff averred he was the owner in his amended Statement of Claim.
Order 13, rule 7 of the relevant High Court (Civil Procedure) Rules provides –
“Every Statement of Claim shall state specifically the relief which the plaintiff claims, either simply or in the alternative, and may also ask for general relief, and the same rule shall apply to any counterclaim made or relief claimed by the defendant in his defence”.
Learned counsel for the respondent had to concede that no reliefs were claimed on the face of the amended Statement of Claim, nor in the evidence of the plaintiff adduced at the trial, that there was in consequence no claim upon which the trial court could adjudicate or grant relief in the action before it and that neither the Court of Appeal nor the Supreme Court, for that matter, was in any better position to do so than the High Court. In the circumstances and, in particular, having regard to the fact that no issues were joined at the trial, since the appellant did not dispute the plaintiff’s claim to title to the land at Podo, we are unable to see any basis for making an order of non-suit, as urged upon us by learned counsel for the respondent.
In the result, the appeal is allowed. The judgment and orders (including any order for payment of costs) of the Court of Appeal are set aside. In view of our observations above, we substitute an order that the plaintiff/respondent’s action be struck out, for the order of the learned trial Judge dismissing the action; but the order for payment of costs made by him is hereby restored and affirmed.
It is further ordered that the respondent do pay to the appellant costs of this appeal assessed and fixed at N165.00 and costs of the appeal in the Court of Appeal assessed and fixed at N75.00.
SC.232/1975
