Chief I. O. Olugunwa Ogunsanlu V. Chief Mike Nwakoni (2002)

LawGlobal-Hub Lead Judgment Report

O. ADEREMI, J.C.A.

The appellant was the plaintiff in the trial court (High Court of Lagos State – Ikeja Division (Coram Martins J.). He had claimed the following reliefs: per the writ of summons from the respondent who was the defendant in that court:

(1) A declaration that the taken over by forces of arms by the defendant Ewutuntun Mafoluku Oshodi, on the 16th of July, 1994 was unlawful, illegal, fraudulent, malicious, null and void.

(2) Special damages of N13,000.00 for the properties stolen at No. 2 Ariyibi Close on the 16th of

July, 1994 by the defendant and his agents.

(3) General damages of N200,000.00 for trespass and unlawful possession of the plaintiff’s property by the defendant on the 16th of July, 1994

However by his statement of claim dated 26th September, 1994 paragraph 22 thereof the appellant as plaintiff claimed against the respondent as defendant the following reliefs:

(1) The sum of N3,200,000.00 stolen by the defendant and his agents on the 16th of July 1994 in a coffin at No. 2 Ariyibi Close, Ewutuntun, Mafoluku Oshodi.

(2) The sum of N9,800,000.00 being the value of goods carted away and / or stolen by the defendant and his agents on the said 16th day of July, 1994 at Ariyibi Close, Mafoluku, Oshodi.

(3) The sum of N200,000.00 as general damages for trespass and unlawful possession of the plaintiff’s property.

In his judgment, the learned trial judge predicated the case before him by the plaintiff/appellant as that represented in the writ of summons.It is now well settled in our jurisprudence that a statement of claim supercedes the writ of summons. See (1) UDECHUKWU VS OKWUKA (1956) 1 F.S.C. 70, (2) OWENA BANK (NIG) LTD VS NIGERIA SWEETS & CONFECTIONARIES CO. LTD (1993) 4 NWLR (Pt. 290) 698 and (3) OKOMU OIL PALM CO. VS ISERHIERHIER (1996) 1 NWLR (pt 422)94.Flowing from the above is the corresponding principle that if some special form of relief be claimed on the writ of summons and is not claimed on the statement of claim that relief is deemed to have been abandoned. It is the reliefs set out on the statement of claim filed subsequent to the writ of summons that, in law, form the basis upon which the case is fought and defended. If however, the plaintiff avers in his statement of claim that he claims as per the writ of summons then the totality of the reliefs on the writ of summons are deemed to be part of the statement of claim and they then constitute the basis on which the parties are inviting the court to adjudicate.

As I have said, in the instant case, the plaintiff/appellant has set out the reliefs claimed in paragraph 22 of the statement of claim. He has by so doing thrown over board the reliefs set out on the writ of summons. The learned trial judge was therefore in serious error to have in his judgment said that the plaintiff/was claiming as per the endorsement on the writ. Undoubtedly, in law, this case was fought and defended on the basis of the indorsement in paragraph 22 of the statement of claim. I shall therefore approach this judgment from that angle.

Pleadings were filed and exchanged between the parties.

Both parties called evidence to substantiate the averments in their respective pleadings. Sequel to taking the addresses of counsel on both sides, the learned trial judge in a reserved judgment delivered on the 2nd December, 1996 dismissed the plaintiff’s claims in their entirety. In concluding the judgment, he said inter alia: