A.O. Akeredolu & Ors. V. Mrs. Aminatu Aminu & Ors. (2003)

LawGlobal-Hub Lead Judgment Report

S.A. IBIYEYE, J.C.A.

The Appeal

 arose from the ruling of Onashile, J. of the Ogun State High Court of Justice sitting in Abeokuta and delivered on the 31st day of July, 1989.

The antecedents of this ruling, however, arose from the amended Writ of Summons and the Statement of Claim filed by the plaintiffs on the 27th day of October, 1988. It will be elucidating. in view of the grouse which prompted this appeal, to reproduce the reliefs sought in both the Amended Writ of Summons and the Statement of Claim which, at the risk of repetition, were filed on the same day (supra). Thus in the endorsement on the Writ of Summons, the plaintiffs claimed as follows:
“1. Declaration that the defendants cannot without the knowledge and/or consent of the head of Oojabi family sell, lease or in any way alienate the family property of Oojabi family of Sango Otta.

2. Declaration that the purported sale or lease of the family property known as Oojabi family property at Sango Otta, by the defendants without the knowledge and or consent of the head of Oojabi is null and void and of no effect and should he accounted for.

3. An order granting possession to the plaintiffs by restraining the defendants, their servants, agents and or privies from further dealing with Oojabi family property without the knowledge and consent of the family head ….”

In paragraph 45 of the Statement of Claim, the plaintiffs claimed as follows:-
“(i) A declaration that the plaintiffs are jointly entitled to statutory or customary right of occupancy over all that piece of parcel of land situate, lying and being at Sango-Otta, known as Oojabi family land and edged red in Plan No. SEW/W/2523/7/2A Drawn by M.A. Seweje Licensed Surveyor.

(ii) A declaration that the 1st and 10th defendants or any individual member or members of Oojabi family cannot without the knowledge and or consent of the head of Oojabi family sell, lease or in any way alienate the family property of Oojabi family property of Oojabi family of Sango-Otta.

(iii) A declaration that any purported sale or lease of any part of Oojabi family land at Sango-Otta by the 1st and 10th Defendants to the 2nd to 9th and 11th to 14th defendants without the knowledge and or consent of the 1st plaintiff is null and void and of no effect

(iv) An order granting possession of the areas illegally occupied by the defendants to the plaintiffs

(v) An order of injunction restraining the defendant their servants, agents and privies front any further property without the knowledge and consent of the Oojabi family.”

It is apparent from the two processes reproduced above that the Amended Writ of Summons contains three reliefs while the Statement of Claim contains five reliefs, that is to say additional two reliefs, This recourse is quite regular as borne out in one of the principles of pleadings on supercession of the Statement of Claim over the Writ of Summons. It is now well settled that a Statement of Claim supercedes the Writ of Summons. Where, however, in a Statement of Claim a consequential relief or reliefs are added to it in excess of those in the Writ of Summons, such additional reliefs shall be deemed as claims before the Court. See: ENIGBOKAN V. AMERICAN INTERNATIONAL INSURANCE CO. (NIG.) LTD. (1994) 6 NWLR (PART 348) 1 at pages 15 and 16. EZEWUSIM V. OKORO & ANOR. (1993) 5 NWLR (PART 294) 478 AT 501 and AJAGUNGBADE III & ORS. V LANIYI & ORS. (1999) 13 NWLR (PART 633) 92.

It is also pertinent to note that where some reliefs are claimed in the Writ of Summons and not in the Statement of Claim, it will be deemed that so much of the claims left out have been abandoned. See: LAHAN V. LAJOYETAN (1972) 6 SC. 190 at 192. In the instant case, the foregoing principles have confirmed the propriety of the plaintiffs’ increase of the reliefs from three in the Writ of Summons to five in the Statement of Claim. The Statement of Claim was therefore regularly filed in the lower Court.

At the expiration of about seven months (that is to say between 27th October, 1988 and 11th May, 1989) of filing both the Amended Writ of Summons and the Statement of Claim the plaintiffs filed a motion on notice supported by an eight paragraph affidavit on 11th May 1988 seeking in part the following relief:
“….seeking for an order entering judgment for the plaintiffs for failure of the defendants to enter appearance and file a defence to the suit herein and for any further order or other orders as this Honourable Court, may deem fit to make in the circumstances of this case.”