3PLR – K. IDOWU AND ORS. V. A. AKINWUNMI AND ORS.
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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K. IDOWU AND ORS.
V.
A. AKINWUNMI AND ORS.
HIGH COURT (WEST)
11TH DECEMBER, 1961
HK/14/61
3PLR/1961/12 (HC-L)
OTHER CITATIONS
BEFORE:
MADARIKAN, J.
REPRESENTATION
Otuyalo for the Plaintiffs.
Lardner for the Defendants.
MAIN ISSUES
LAND LAW: Sale of family land –
PRACTICE AND PROCEDURE: WR. High Court (Civil Procedure) Rules, O. 22. r. Application to strike out pleadings as disclosing no reasonable cause of action.
PRACTICE AND PROCEDURE: Motion to amend—Court will generally grant leave to amend if amendment will cure defect.
MAIN JUDGMENT
MADARIKAN, J.—
In this action, the plaintiffs seek against the defendants an order setting aside the sale and confirmation of sale of the plaintiffs’ family land at Ikate village as well as the conveyance of the said land from the 1st, 2nd, 3rd, 4th, 5th and 6th defendants to the 7th defendant dated 24-7-56 (hereinafter referred to as the 1956 conveyance) and 24-7-56 (hereinafter referred to as the 1958 conveyance).
In their Statement of Claim, the plaintiffs aver
(1) that the said land has been the property of the Ikate Chieftaincy Family from time immemorial;
(2) that the 1st and 2nd defendants sold and conveyed the said land to the 7th defendant by the 1956 conveyance;
(3) that by the 1958 conveyance the 3rd, 4th, 5th and 6th defendants confirmed the said sale; and
(4) that the 1st to 6th defendants are not members of the Ikate Chieftaincy Family.
On the 7th day of July, 1961, Mr. Lardner, learned Counsel for the 1st to 6th defendants, filed a motion praying that in pursuance of Order 22 rule 4 of the High Court (Civil Procedure) Rules, the following points of law be set down for hearing and determination—
POINTS OF LAW
- The cause of action is misconceived and bad in law and the action should be dismissed in as much as the plaintiffs admit-
(i) that the plaintiffs are not parties to the deeds mentioned in paragraphs 1 and 3 of the Statement of Claim namely the Deed of Conveyance dated the 24th day of July, 1956, and registered as No. 10 at page 20 in Volume 234 Ibadan and the Deed of Ratification dated the 24th day of July, 1958, and registered as No. 55 at page 55 in Volume 258, Ibadan, and
(ii) that the defendants are not members of the Ikate Family, and
(iii) that the 7th defendant entered upon the land in dispute under the above deeds, and no fraud or mistake is alleged or pleaded in the Statement of Claim or Writ of Summons.
- The plaintiffs are not entitled to the relief sought on the facts alleged and admitted by them.
On the 13th day of July, 1961, Mr. Esan, learned Counsel for the plaintiffs, filed a motion seeking an amendment of paragraph 4 of the Statement of Claim/ The amendment sought reads as follows:
The second defendant is a member, but the 1st, 3rd to 6th defendants are not members of the Ikate Chieftaincy Family who are the owners of the land in question and the defendants have no right to deal with it in any manner and the 7th defendant is well aware of this too.
I have listened to arguments of both motions.
Now Order 22 rule 4 of the High Court (Civil Procedure) Rules provides as follows:—
The Court or a Judge may order any pleading to be struck out on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Judge may order the action to be stayed or dismissed or judgment to be entered accordingly as may be just.
This rule was lifted from Order 25 rule 4 of the English Rules. In Mayor of the City of London v. Horner 111 L.T. 512; it was laid down that recourse should be had to this rule only in plain and obvious cases. It will be noted that the heading of Order 22 is, “Proceedings in lieu of demurrer”. In Peru v. Peruvian Guano Co., 36 Ch.D. 496, Chitty J. said that a pleading will not be struck out under this rule unless it is not only demurrable but something worse than demurrable, i.e., such that no legitimate amendment can save from being demurrable.
In the Annual Practice, the following note appears under Order 25 rule 4:
Amendment: The Court will generally give leave to amend a defect in pleading rather than give judgment in ignorance of facts which ought to be known before rights are definitely decided (Steeds v. Steeds, 22 Q.B.D. 542 … ). Leave was given after an argument under this rule in Griffiths v. London & St. K. Docks Co., 13 Q.B.D. 261.
In brief, Mr. Lardner’s submission was that the plaintiffs’ writ of summons and Statement of Claim disclose no reasonable cause of action. In Peru’s case referred to earlier, Chitty J. said:
There is some difficulty in affixing a precise meaning to the term ‘no reasonable cause of action’. In point of law … every cause of action is reasonable.
It is sufficient if the writ of summons and the Statement of Claim disclose some cause of action or raise some question fit to be decided by the Court. I am satisfied that if the amendment sought by the plaintiffs is granted, the Statement of Claim will disclose a reasonable cause of action.
It is hereby ordered that paragraph 4 of the Statement of Claim be amended to read as follows:
The second defendant is a member, but the 1st, 3rd to 6th defendants are not members of the Ikate Chieftaincy Family who are the owners of the land in question and the defendants have no right to deal with it in any manner, and the 7th defendant is well aware of this too.
The defendants’ application under Order 22 rule 4 is hereby dismissed. I make no order as to costs.
Motion to strike dismissed.
Leave to amend granted.
