Mrs Shola Bosma & Ors. V. Alhaji Musendiku Akinole & Ors. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment)

The Respondents instituted an action against the Appellants at the High court of Lagos state wherein they claimed the sum of N100,000.00 as damages for trespass on their family land situate at Alausa Village, Ikeja, and prayed for an Order of perpetual injunction restraining the Appellants’ their assigns, servants, agents, etc., from entering or continuing to trespass on the said land.

Pleadings were duly filed, and in paragraph 22 of their statement of claim, they claimed “as per their writ of summons”. They were later granted leave to amend their writ of summons and statement of claim, but they maintained in their amended pleadings that they claim- “as per their writ of summons”‘

The Appellants filed a statement of Defence, which they also amended. Written addresses were duly filed, and in the Appellants’ Written Address, they raised the issue of the Respondents claiming “as per their writ of summons”, and contended that the Respondents had no claim that the Lower Court could grant since they amended their writ of summons, and “the original writ of summons is no longer material before the court as to determine or define the live claim to be pronounced upon by this Honourable court”.

The Respondents argued to the contrary in their written Address, and after the adoption of the addresses, the matter was adjourned to 23/3/2010 for Judgment. However, on the said 23/3/2010, the learned trial Judge, Hon. Justice A Olateru-Olagbegi, delivered what he referred to as “Judgment Directions”, wherein he reviewed the submissions of counsel regarding the Appellant’s objection, and held thus –

“I have no doubt at all in my mind that Mr. Ogunlesi [Appellants’ counsel] is correct on this issue. The implication of Chief Adegunle [Respondents’ counsel]’s submission is that the original pleadings remain valid for the purpose of determination of the suit before the court. If there was nothing wrong with the original pleadings why amend at all. In this regard, a party cannot approbate and reprobate. If the original pleading was suitable, stick to it, if amended, stick to the amended version.- – – Mr. Ogunlesi has urged this court to therefore dismiss this suit on the ground that there is no claim before the court. If there is no claim, then there is no dispute and the court has no jurisdiction – – This is a 1994 case i.e. 16 years old. It traversed three different Courts before getting here (Coram B. O. Martins, J., Manuwo J., and Abiru, J.)

The parties here called witnesses and contested the issues on the amended writ of summons and the Defendants had been served with the Amended statement of claim since about April 2009. I have asked myself whether it would be right to gloss over the default of the Defendants notwithstanding its grave implications for the jurisdiction of this court. O. IRI(2) of the Rules provides that they be applied towards the achievement of a just efficient and speedy dispensation of justice.

I have also asked myself if it would ensure towards the achievement of the said overriding objectives if our Rules stated in O.IRI (2) supra to dismiss this suit in the circumstances of this case? In the view of this Court the most appropriate order to make in the interest of justice is to direct the claimants to file an application for amendment of paragraph 24 of their Amended statement of claim dated 1-4-90 by inserting “Amended before “writ of summons” thereof. I so hold’”

Thereafter, the Lower Court stated as follows at page 82 of the Record –

This suit is for Judgment today. Judgment has been aborted by the default of the Claimants. The Defendants hove so to say come here today for judgment as scheduled. That Judgment has been put on hold – -“.

Dissatisfied with the decision, the Appellants filed a Notice of Appeal in this court containing six Grounds of Appeal. They were, however, granted leave to argue a fresh ground of appeal, and their Amended Notice of Appeal contains seven Grounds of Appeal. They formulated four issues for Determination from the said 7 Grounds in their Amended Appellants’ Brief of Argument prepared by Lanre Ogunlesi, Esq., and the said issues for Determination are as follows –

A. whether the learned trial judge was right when he delivered what he referred to ‘Judgment Directions’ on the day of Judgment in respect of the Preliminary objection already argued in the Final Address of counsel and therein directed the Respondents to go and amend their pleadings.

B. whether the learned trial Judge was right to direct the Respondents to amend their pleadings after sustaining the preliminary objection raised by the Appellants in their Final written Address that there was no claim before the court”

c. whether having regard to the provisions of order 24 Rule 7 of the High court of Lagos state (Civil Procedure) Rules 2004 the learned trial Judge was right to direct the Respondents to go and amend their pleadings in the course of delivering his Judgment