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.”