Mr. David I. Karinga Stowe & Anor V. Godswill T. Benstowe & Anor (2012)
LAWGLOBAL HUB Lead Judgment Report
BODE RHODES-VIVOUR, J.S.C.
This is an appeal from the judgment of the Court of Appeal, Port Harcourt Division delivered on the 11th of July, 2000 wherein that court set aside the judgment of the High Court and struck out the suit for non compliance with the provisions of Order 33 Rule 7 High Court (Civil Procedure) Rules, Cap 61. Laws of Eastern Nigeria, 1963. The facts are these:
The appellants as plaintiffs sued the respondents as defendants on a writ of Summons and Statement of claim. The endorsement on the Writ of summons is as follows:
“The plaintiffs claim as against the Defendants is for:
- A declaration that:
(a) The installation of the 1st defendant as Chief Godswill Tamunobaraimi Ben Stowe without the knowledge and consent of the Banigo House of Bonny and the Stowe House of Bonny under the Bonny native Law and custom is null and void.
(b) No such sub-House as Ben Stowe House in the STOWE HOUSE of the Banigo group Houses in Bonny exists under Bonny custom and tradition.
(c) The creation of Ben Stowe Chieftaincy Unit and the recognition by the Bonny Chiefs Council of Godswill Tamunobaraimi Ben Stowe as Chief of Ben Stowe House on July 22nd, 1978 are ultra vires and void.
(d) The only associate Chieftaincy unit in the Banigo group of Houses of Bonny established in Bonny history with the relevant appellation is the Stowe House.
(e) The incumbent of Stowe House is Chief Emmanuel Diepiri (Ihanifieresi) Stowe, the first plaintiff.
- An injunction:
(a) Restraining the first dependant from parading himself as chief Godswill Tamunobaraimi Ben stowe House of the Banigo group of Houses of Bonny.
(b) Restraining the second defendant and his successors-in office as secretary of the Bonny Chiefs Council from creating a Ben Stowe sub-House without the consent and initiative of the STOWE HOUSE and the BANIGO HOUSE of Bonny.
These reliefs were not endorsed in the Amended statement of claim. Paragraph 19 of the Amended statement of claim reads:
“19 wherefore the plaintiff claim as per writ”
The learned trial judge heard evidence and entered judgment for the plaintiff. On appeal the judgment of the trial court was set aside and the suit struck out. This appeal is against that judgment.
In accordance with rules of this court, briefs were filed and exchanged. The appellants brief was filed on the 3rd of November, 2004 while the respondents brief was deemed filed on the 29th of March 2006.
Two issues were formulated in the appellants brief.
- Whether the learned justices of the Court of Appeal were right in striking out the plaintiffs claim when they came to the conclusion that reliefs 3, 4, and 7 (out of 7 reliefs granted by the court) were granted gratis by the trial court because they were not claimed by the plaintiffs.
- Whether the learned justices of the Court of Appeal were right when they held that by not repeating the reliefs endorsed on the Writ of Summons in the Amended Statement of claim, the plaintiffs abandoned all reliefs without regard to the endorsement on the Writ, even though the Writ of summons is referred to in paragraph 19 of the Amended Statement of claim.
And for the respondents, a lone issue was presented for determination of this appeal. It reads:
- Whether the Court of Appeal rightly struck out the plaintiffs suit/claims having found that reliefs Nos. 3, 4, 7, were granted gratis and in the absence of specific endorsement of the said substantive reliefs in the Amended Statement of claim.
On a careful examination of the three issues in the briefs of argument I am of the firm view that the appellants’ second issue is more than adequate for the consideration of this appeal.
At the hearing of the appeal or the 21st October 2011 learned counsel, for the appellants E. Peter Kio Esq. adopted his brief and urged us to set aside the judgment of the Court of Appeal and restore the judgment of the High Court.
Learned counsel for the respondents A. B. Anachebe, SAN adopted his brief and urged us to dismiss the appeal.
Learned counsel for the appellant observed that the ideal thing is to state in the statement of claim all the reliefs sought but failure to do so does not make the action fail where the statement of claim refers to the Writ of Summons. Reliance was placed on Keshinro v Bakare 1967 1 ALL N.L.R. p.280.
He further observed that in paragraph 19 of the Amended Statement of claim the plaintiff claimed as per writ, contending that the Writ of summons is not superceded. Referring to Owena Bank Ltd v. N.S.C.C. Ltd 1993 4 NWLR Pt.290 p.698- Okonu Oil Palm Co Ltd v. Isehienrehien 2001 6 NWLR Pt.710 p.660
He submitted that striking out the plaintiffs’ case on the issue of not pleading the reliefs in extenso in the statement of claim cannot be valid and this court is urged to allow the appeal.
Replying, learned counsel for the respondents observed that Order 33 rule 7 of the High Court (Civil Procedure) Rules of Eastern Nigeria is mandatory.
He submitted that if a plaintiff, as in the instant case, fails to endorse his reliefs in the statement of claim though endorsed on the Writ or particulars of claim, he is deemed to have abandoned such reliefs. Reliance was placed on: Cargil v. Bower 1879 10 Ch.D. p.502, Lahan v. Lajoyetan 1972 6 SC p.190, Udechukwu v Onwuka 1956 1 FSC p.70
Bullen and Leak and Jabob’s Precedents of pleadings 12th edition at pages 62 and 63; Practice and Procedure of Supreme Court, Court of Appeal and High Court by Hon. T. A. Aguda (1980 Edition) at page 247. He urged this court to dismiss this appeal together with the judgment of the trial judge.
Order 33 rule 7 of the High Court Civil Procedure Rules applicable in Rivers State at the time the cause of action arose in this case reads:
“Every statement of claim shall state specifically the relief which the plaintiff claims either simply or in the alternative and may ask for general relief and the same shall apply to any counterclaim made or relief claimed by the defendant in his defence.”
The above is a mandatory procedural requirement founded on the position of the Law that the statement of claim supercedes the Writ of Summons.
The learned authors of Bullen and Leak and Jacobs precedents of pleadings, an ‘A’ publication i.e. the final authority on how to draft pleadings says:
“when all the material facts have been alleged, the statement of claim concludes with the relief or remedy claimed. The statement of claim must state specifically the relief or remedy which the plaintiff claims. This is called the prayer and the practice is for the prayer…to set out separately and distinctly in numbered (or lettered) paragraphs each head of relief or remedy which is claimed…If the plaintiff omits to ask for any relief or remedy claimed in the writ he will be deemed to have abandoned that claim.”
Hon. Justice T. A. Aguda in his book “Practice and Procedure of Supreme Court, Court of Appeal, and High court, (1980 Edition) at page 247 said:
“Apart from the Statement of facts…it must also state specifically the relief which the plaintiff claim either simply or in the alternative it may also ask for general relief”
It is important I examine the attitude of the courts to this issue. In Enigbokan v. A.I.I.Co. Nig. Ltd. 1994 6 N.WLB Pt 348 p.1 Iguh JSC said: “It seems to me plain from the plaintiffs’ fourth amended statement of claim that the first relief he originally claimed as per his writ of summons was subsequently abandoned. This is because the law is settled that a statement of claim supercedes the writ and any relief claimed on the writ but not contained in the statement of claim will be deemed to have been abandoned…” In Lahan and ors v. Lajoyetan and Ors 1972 NSCC p.460, The Supreme Court held that a statement of claim supercedes a writ and that if a special relief is deemed in the writ which is not claimed in the statement of claim, it will be deemed that the special relief has been abandoned.
In Otanioku v Alli 1977 NSCC p.452
Order 13 rule 7 of the relevant High Court (Civil Procedure) Rules provided that:
“Every statement of claim shall state specifically the relief which the plaintiff claims, either simply or in the alternative, and may ask for general relief, and the same rule shall apply to any counterclaim made or relief claimed by the defendant in his defence”
Learned counsel for the respondent conceded that no reliefs were claimed in the amended statement of claim. The action was struck out. See also on these: Udechukwu v. Okwuka 1956 IFSC p.71, Ajagungbade III and Ors v Laniyi & Ors 1999 13 NWLR Pt.633 p.92
Having explained the settled principle that a statement of claim supercedes the Writ of summons, I must observe that the plaintiffs claims endorsed in the writ of summons were not repeated in the statement of claim: Paragraph 19 of the Amended statement of claim simply pleaded: “19 whereof the plaintiffs claim as per writ”
This is bad. Having not pleaded any relief or remedy in his pleadings, (statement of claim) the plaintiff has abandoned all his reliefs. The statement of claim is naked as regards reliefs claimed. Consequently there is no claim upon which the trial court could adjudicate or grant relief in this suit before it. The correct practice is to conclude the plaintiff’s pleadings by making a claim on each item on the Writ of Summons. The statement of claim supercedes the Writ of Summons and if reliefs’ claimed are only in the Writ of Summons and not in the statement of claim then the statement of claim no longer supercedes the Writ of Summons and the reliefs claimed are abandoned. I must observe that the Court of Appeal was correct to hear the appeal on its merits when it was aware that it had no jurisdiction to hear the appeal. When an appeal is pending before the Court of Appeal and issue of jurisdiction is raised and the Court of Appeal has no jurisdiction to hear the appeal, the Court of Appeal as the penultimate court should proceed to hear the appeal on its merits notwithstanding the fact that it has no jurisdiction. Hearing the appeal gives the Supreme Court the benefit of its opinion. The reasoning is simple, if the Supreme Court finds both courts below had jurisdiction, the suit would have to be sent back to the Court of Appeal with great costs to the litigant and waste of judicial time.
The Court of Appeal was correct to set aside the judgment and strike out the suit. There shall be costs of N50,000.00 in favour of the respondents.