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JULY 28 1964

SUIT NO. J/19/64

3PLR/1964/43 (HC-W)






Awopeju (Dr. Odumosu with him) for the plaintiffs.

Okenla for the defendant.


PRACTICE AND PROCEDURE – Civil Procedure-Whether High Court has jurisdiction to try a mailer of customary law­ Whether writ of summons discloses a cause of action-Two pieces of paper on which plaintiff’s claim is set out attached to the writ of summons-High Court (Western Nigeria) Law ss. 8, 9 and 12-High Court (Civil Procedure) Rules (Western Nigeria) O. 2, r. 1­Evidence Act, ss. 56 & 58.


MADARIKAN, J. : Action in this case was commenced by a writ of summons dated the 20th day of May, 1964. Attached to the writ of summons are 2 pieces of papa on which the plaintiffs’ claim is set out in extenso. A copy of the writ together with the claim was duly served on the defendant who later filed a motion praying for an order that the case be struck out or dismissed on the following grounds:-


  1. There is no proper writ of summons in the action;


  1. The writ of summons discloses no cause of action;


  1. The court has no original jurisdiction to entertain the action.


The motion was supported by an affidavit and the plaintiffs also filed a counter affidavit.


I shall deal with the grounds relied upon by the defendant in the reverse order Le. 3rd, 2nd and 1st grounds.


Arguing the 3rd ground, learned counsel for the defendant, Chief Okenla, contended that the High Court has no jurisdiction to entertain the claim which reads as follows:-


“The plaintiffs therefore jointly and severally claim against the Defendant:


  1. A return of the said Keys or their Value.


  1. £200 damages for trespass.


iii.      “An injunction restraining the Defendant his servants and/or agents from molesting, disturbing, or interfering with the Plaintiffs in the performance of their “OSE” and rites in the lledi or hindering the 1 st Plaintiff in the exercise of any of his rights as the Acting Apena of Ilishan.”


He referred to sections 8, 9 and 12 of the High Court Law and submitted that the High Court cannot exercise original jurisdiction because the proper law applicable is the appro­priate customary law of the area. This argument is attractive but I find myself unable to accept it. If it becomes necessary to raise questions of customary law at the trial, sections 56 and 58 of the Evidence Act make adequate provisions for this. I am therefore of the opinion that there is no substance in the 3rd ground raised by Chief Okenla.


The 2nd ground is that the writ discloses no cause of action. Learned counsel for the plaintiffs cited Ponti and another v. wood (1) which decided that a writ should not be set aside merely because it discloses no cause of action. I have carefully considered Ponti’s case and come to the conclusion that as the decision was based on the English Rules of Court, it can be of no assistance to me.


There are 9 paragraphs in the Particulars of Claim attached to the writ of summons.


I shall quote paragraphs 1, 2, 3, 5, 7, 8 and 9;-


“1.     The Plaintiffs are officers of the Osugbo Cult of I1ishan, Ijebu Remo, and reside in Ilishan.


  1. The Defendant is the Oba of Ilishan and resides at Ilishan.


  1. The 1st Plaintiff who is EKEJI APENA (i.e. Deputy APENA) is the Acting APENA of Ilishan and deputises for the substantive holder of the office by name Chief Oduyoye of Eweye Compound who is incapacitated from performing the duties of his office as APENA owing to infirmity of old age.


  1. The APENA is the Custodian of the Keys of the ILEDI (i.e. the placet house of Ogboni or Osugbo meeting) also all the articles used or necessary in the performance or working of the ILEDI ceremonies and rites.


  1. In breach of the ancient and time-honoured usages and established customs of the Osugbo Cult the Defendant wrongfully and without justification took the Keys of the Dedi from the Plaintiffs and/or their Agents on 15th May, 1964, and has since deprived the Plaintiffs and other members of the Cult of the use of the Iledi and prevented them from performing or observing the Osugbo “OSE” due on 18th May, 1964. The said “OSE” is observed every sixteen days called ITADOGUN”.


  1. The Defendant still detains the Keys and refuses to return them in spite of repeated demands.


  1. The Defendant has unlawfully and in violation and desecration of the ancient institution of the Osugbo Cult been entering into the Iledi by himself and other unknown most of whom are cowens and un initiates.”


In my view, these paragraphs disclose a cause of action. The 2nd ground must therefore fail.


The 1st ground is that there is no proper writ of summons in this matter. Order 2  rule 1 of the High Court (Civil Procedure) Rules provides as follows:-


“Every action shall be commenced by writ of summons, which shall show the cause of action and be indorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action.”


The learned counsel for the defendant submitted that the writ of summons was not indorsed with a statement of the nature of the claim made.


What is the meaning of the word “indorsed”.


According to the Oxford Dictionary “indorse” or “endorse means “write on back of document”. “Endorse” is defined on page 952 of Stroud’s Judicial Dictionary (3rd Edition) Volume 2 as “that that is written upon the back of a deed, as the condition of an obligation is to be indorsed, for that that is written on the back of the obligation”. In Ackers v. Howard (2) it was held that a direction to “endorse” anything on a document means as a general rule to write it on the back of the document. The words used in Order 2 rule 1 are clear, precise and unambiguous and must be construed according to the ordinary meaning of the English language. As stated by Tindal C.J. in Woreburton v. Loveland (2) “when the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the Legislature” .


After a most anxious consideration of the wording of Order 2 rule 1, I have come to the conclusion that for a writ of summons to be properly indorsed, the statement of the nature of the claim must be written at the back of the writ. Written in this context will have its widest meaning i.e. printed, photographed (if possible), typewritten, handwritten or other modes of representing or reproducing words or figures in a visible form. If the statement of the nature of the claim is typed on one or more pieces of paper and gummed to the back of the writ of summons as in the present case, there is no proper indorsement.


Having come to this conclusion, I consider that the proper order to make is to strike out this action for non-compliance with Order 2 rule 1 and I hereby so order.


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