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 In the face of well-established authority, therefore, the Statement of Claim in the suit superseded the original Writ of Summons.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.”