Jacob Bankole & Ors V. Amodu Tijani Dada (2002)

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MORONKEJI OMOTAYO ONALAJA, J.C.A. 

The original plaintiff, ALHAJI BISIRIYU SULE for himself, and on behalf of IKOTUN and MATORI Families of IYESI OTA, died whilst the appeal was pending in this court, and on 26th November, 2001, by leave of court, granted prayer to substitute the deceased with AMODU TIJANI DADA, RASAQ ADEBOWALE OWOLOLA, MOROOF AKANBI OBI and MUBEEN ADEYEMI TALABI for deceased ALHAJI BISIRIYU SULE, as plaintiffs for IKOTUN and MATORI FAMILIES, sued at ILARO High Court III defendants but two of them died during trial, in the High Court and remained Michael Aina for Isidana Family of IYESI, OTA, Ogun State-who also died during the pendency of the appeal in this court. On 21st February, 2002, with leave of court was substituted with JACOB BANKOLE (2) TAOFIK AKINDE and (3) EZEKIEL BANKOLE as defendants/appellants in this court for deceased Michael Aina for himself and Isidana Family of IYESI.

The action was commenced at ILARO High Court, but concluded at Sagamu High Court by order of transfer of Ogun State Chief Judge, under the High Court (Civil Procedure) Rules. During the trial, two of the defendants died and were struck out, leaving one defendant at the completion of trial.

The writ of summons was served originally on the three defendants, before the deaths of two of the defendants. After service of the writ of summons on the defendants, pleadings were filed, delivered, exchanged and amended several times with the result that at the completion of trial plaintiffs relied on 3RD FURTHER AMENDED STATEMENT OF CLAIM, whilst defendant relied on FURTHER AMENDED STATEMENT OF DEFENCE. Prior to filing of the further amended statement of defence, the plaintiffs already filed a reply to the amended statement of defence without filing a further reply to the further amended statement of defence.

Applying the cases of Chief J.O. Lahan & Ors. v. Lajoyetan & Ors. (1972) 6 SC 190, (1972) 1 All NLR (Pt.2) page 217, (1972) SCC 460, (1973) 1 NMLR page 44; Udechukwu v. Okwuka (1956) 1 FSC 70 at 71 (1956) SCNLR 189; M.A. Enigbokan v. American International Insurance Co. Nig. Ltd. (1994) 6 NWLR (Pt. 348) page 1 at 19 SC all applied and followed in Egbulefu Onyero & Anor. v. Augustine Nwadike (1996) 9 NWLR (Pt. 471) page 231 at 239-240 CA that is now axiomatic that a statement of claim when filed supersedes the writ of summons and must itself disclose a good cause of action. Accordingly, the claims of the plaintiffs are as set out in the concluding paragraph 30 of the further amended statement of claim referred to in this judgment simply as the statement of claim and the further amended statement of defence as statement of defence and the reply filed simply as reply. Paragraph 30 of the statement of claim reads or states as follows:-

“30 WHEREOF the plaintiff claims against the defendant as follows:-

1. A declaration that the plaintiff is entitled to a statutory right of OCCUPANCY over all that piece or parcel of land situate, lying and being at IYESI Village, Ota, Ogun State, which is clearly delineated blue on the survey Plan No.SEW/W/2496/4 dated 8th May, 1984. Annual rent of said land being N100.00.
2. A declaration that by refusing to pay customary tribute and by claiming ownership of the piece of land, which the defendants hold of the plaintiff as customary tenants of the plaintiff, the defendant have thereby, forfeited their interest as customary tenants to the plaintiff annual rent of said land being N100.00.
3. Possession of the said parcel of land in dispute.
4. Perpectual (sic) perpetual injunction to restrain the defendants, their agents or assigns from encroaching on the said parcel of land.”

The defendant joined issues with the plaintiffs in paragraph 35 of the statement of defence that:-

“35 The defendant further avers that the plaintiff and his family have no right claim or title to the land in dispute save for the area edged BLUE in survey plan attached thereto.

WHEREOF:- The defendant avers that the plaintiff’s claim is frivolous, speculative, vexatious and constitute an abuse of the process of the court and ought to be dismissed with costs.”

By the above averment, defendant joined issue with plaintiffs under the rule in Lewis & Peat (NRI) Ltd. v. A.E. Akhimien (1976) 7 SC 157; Chief Mrs. F. Akintola v. Mrs. C.F.A. Dedeke Solano (1986) 2 NWLR (Pt. 24) page 598 SC.

To establish his case, plaintiff testified for himself as 1st PW and called five other witnesses, who in the course of their testimonies tendered documentary evidence marked as exhibits, references shall be made to the exhibits in the course of this judgment. All the six plaintiff’s witnesses were cross-examined by the learned Senior Counsel for the defendant.

In defence of the action, the defendant testified for himself during which documents marked as exhibits were admitted. Apart from himself defendant called 6(six) other witnesses through some of whom tendered documents were marked as exhibits, references shall be made to them when considered relevant in this judgment. The defendant and his witnesses were thoroughly cross examined.

Upon completion of testimonies at the trial learned Senior Counsel for the defendant and learned Counsel for the plaintiffs, addressed the learned trial Judge exhaustively after which the learned trial Judge on the 19th day of December, 1994, delivered his judgment covered at pages 300 to 326 of the record of appeal wherein at page 325 the learned trial Judge concluded his judgment thus:-

“The plaintiff has therefore, proved his claim before this court on the preponderance of evidence. Therefore, the court granted all the declarations and reliefs sought by the plaintiff.”