Alhaji Ambali Olusegun Oduwole & Ors V. Lagos State Development Property Corporation (2003)

LawGlobal-Hub Lead Judgment Report

MORONKEJI OMOTAYO ONALAJA, J.C.A.

Owing to the old age of this case with the appeal filed a decade ago, the original plaintiff and defendant had since died leading to the parties named as appellants and respondents, respectively as substituted parties with the leave of this court. The claims of the original plaintiff now appellants against original defendant now respondents following the acceptable, now elementary principle of law, that as parties are bound by their pleadings the claims set out in the statement of claim supersede the claims in the writ of summons as so decided in the cases of Lahan v. Lajoyetan (1972) SC 190, (1972) 1 All NLR (Pt. 2) page 217; Bamgbegbin v. Oriare (2001) 5 NWLR (Pt. 707) page 628 CA; Oyewole v. Lasisi (2000) 14 NWLR (Pt. 687) page 342 CA; Oyebadejo v. Olaniyi (2000) 5 NWLR (Pt. 657) page 485 CA; Kaigama v. A.-G., Borno State (2001) 16 NWLR (Pt. 738) page 94 CA; Eya v. Qudus (2001) 15 NWLR (Pt. 737) page 587 CA. The appellant’s claims are as per the amended writ of summons as learned counsel lazily referred to the writ of summons in paragraph 38 at page 34 of the record of appeal in the amended statement of claim thus:

“26. Whereof the plaintiff claims as per his writ of summons.
The amended writ of summons at page 40 of the record of appeal reads thus:
‘The plaintiff’s claims against the defendants jointly and severally are for:
(1) A declaration that the plaintiff is the rightful person to whom the dwelling – house known as No. 48c Bank Olemoh Street, Surulere should be sold in pursuance of the execution of the “House Ownership Scheme” of the first defendants and not the second defendant or any person whatsoever.

(2) A declaration that the purported sale of the dwelling house the subject-matter of this action by the defendants vide certificate of sale dated 26th January, 1982 is null and void and of no effect whatsoever.”

From the foregoing, after service of the writ of summons on defendant/respondent’s pleadings were exchanged, delivered and amended.

Defendant/respondents in accordance with High Court of Lagos State (Civil Procedure) Rules set up amended counter-claim as averred in paragraph 12 of amended statement of defence and counter claim at page 64 of the record of appeal as follows:
“12.Whereof the plaintiff (sic) (defendant) counter-claim for possession of the flat situate lying and being at 48C Mesne Profit for use and occupation of the said flat at the rate of N100 per month with effect from the 1st day of February, 1982 until possession is given to the plaintiff (defendant) counter-claimant.”

As a counter-claim is distinct from the main action as it has the tapestry of an action pleadings were exchanged and delivered on the counter-claim with statement of defence to counter-claim by plaintiffs/appellants at pages 77 to 79 of the record of appeal.

Plaintiff/appellant’s testified for himself and called 4 other witnesses through whom the plaintiff/appellants’ documentary documents were admitted and marked as exhibits A to J. At page 90 of the record of appeal, the 4th PW commented on the documentary evidence tendered for plaintiff/appellants under cross examination by learned counsel to the 1st respondent/1st defendant as follows:
“I agree as per the records of LSDPC plaintiff (now appellants) is not the recognised tenant.”

The 1st defendant, 1st respondent called a witness as official who when he testified was the acting secretary of the special committee on the sale of 1st defendant/1st respondent houses, he was subjected to rigorous cross-examination by learned counsel to 2nd defendant/counter-claimant now 2nd to 4th respondents. A letter exchanged between 1st defendant and 2nd defendant now 1st, 2nd to 4th respondents was sought to be tendered by learned counsel to 2nd set of respondents it was objected to by learned counsel to plaintiff/appellant which after a considered ruling was admitted and marked exhibit J.

The learned counsel to plaintiff/appellants cross-examined 1st defendant/respondent only witness rigorously. The witness concluded his testimony under re-examination that –
‘2nd defendant is the original allottee.’

2nd defendant testified for himself at length and subjected to very rigorous cross-examination by learned counsel to appellant under which at page 104 of the record of appeal he testified as follows:
“I am the only child. When I came in 1973, Madam Aina Banjo and plaintiff were not living in 48C, there is nobody by the name Madam Aina Banjo. My mother was living in 48C, plaintiff was living with her. Plaintiff is still living at 48C. I reiterate that 48 was allotted to my mother while 48C was allotted to me as stated in paragraph 5 of my amended statement of defence. 1st defendant was the owner of both houses.”

At page 105 of the record of appeal still under cross examination of learned counsel to appellant he stated:
“The property was sold to me after I was interviewed on 31/8/81 as evidence by exhibit.”

The 2nd defendant/ 2nd-4th respondent’s was not cross examined by learned counsel to 1st defendant/respondent, he called his son as the witness through whom exhibit P was admitted, as expected he was subjected to rigorous cross examination from learned counsel to appellant. 1st respondent did not cross examine 2nd defendant witness. With this witness 2nd defendant/2nd-4th respondents closed their case.

Learned counsel to the parties addressed the court after which judgment was delivered on 31st day of July, 1991 to be found at pages 134 to 154 of the record of appeal. In the considered judgment after a review of the evidence, the learned trial Judge stated at pages 148, 149, 150-152 of the record of appeal as follows:
“Plaintiff’s claim is for declaration that he is the proper person to whom the property in dispute 48C should be sold and that any sale by 1sl defendant should be declared null and void.
According to his counsel, his claim is based on the premises that plaintiff is the next of kin to the original allottee whom plaintiff claimed is Madam Aina Banjo and family. Plaintiff also claims for the reason that he is the person in possession.