K. O. Sosan V. H.F.P. Engineering (Nigeria) Ltd. (2003)

LawGlobal-Hub Lead Judgment Report

MORONKEJI OMOTAYO ONALAJA, J.C.A.

The plaintiff now appellant in this judgment issued a writ against the defendant henceforth referred to in this judgment as respondent.

After service of the writ of summons on respondent, pleadings were delivered exchanged and amended. In accordance with the High Court (Civil Procedure) Rules of Lagos State respondent set up in her statement of defence a counter-claim which was also amended in the course of trial, to which appellant filed a reply. Upon completion of amended pleadings the case proceeded to trial.

Following the acceptable rule now regarded as elementary in Lahan v. Lajoyetan (1972) 6 SC 190, (1972) 1 All NLR (Pt. 2) page 217 that the particulars of claim pleaded in the statement of claim supersede the particulars of claim in the writ of summons. The claims of the appellant were as averred and pleaded in further amended statement of claim of 5 paragraphs hereby reproduced as follows from page 6 of the record of appeal.

“Further Amended Statement of Claim

(1) The plaintiff is the owner of the premises situate at and known as Plot 642 Victoria Island Lagos and registered as title No. Ld 7948 at the Lands Registry, Alausa-Ikeja Lagos State.

(2) The defendant/company is construction company carrying on business in Lagos.

(3) In April 1990, the plaintiff and the defendant executed a sub lease agreement whereby the defendant was purportedly granted a sub lease of the premises at Plot 642B, Victoria Island, Lagos for a period of ten (10) years from 1st October, 1988, in pursuance of which the said title was deposited with the defendant and still in its possession.

(4) The plaintiff avers that the defendant has since been in occupation of the afore-mentioned premises by virtue of the said sub lease agreement.

(5) The plaintiff further avers that the prior consent of the Governor of Lagos State was never obtained for the transactions and has so far not been obtained.

Whereof the plaintiff claims against the defendants as follows:

(i) A declaration that the purported sub lease agreement dated 17th April, 1990, in respect of the premises situate at Plot 642B Victoria Island, Lagos State between the plaintiff and the defendant is null and void by virtue of sections 22, and 26 of the Land Use Act, 1978 And An order setting aside the purported sub lease agreement, and other consequential orders.”

The claims of the appellant were as stated in the further amended statement of claim, see further the rule in I. O. Lahan v. Chief Lajoyetan (supra) followed and adopted in this case as in Off()boche v. Ogoja Local Government (2001) 16 NWLR (Pt. 739) page 458 SC; Eya v. Qudus (2001) 15NWLR (Pt. 737) page 587 CA; Hong v. F. M. Finance Ltd. (2001) 7 NWLR (Pt. 713) page 633 CA; Shell Pet. Dev. Co. (Nig.) Ltd. v. fleta (2001) 11 NWLR (Pt. 724) page 473 CA; Kupoluyi v. Phillips (2001) 13 NWLR (Pt. 731) pages 731 and 736 CA.

Respondent with the leave of the High Court filed an amended statement of defence and counter-claim wherein some of the averments in the under mentioned paragraphs are as follows: