K. IDOWU & Others. v A. AKINWUNMI & Others (Ikeja Suit No. HK/14/61) [1961] NGHC 46 (11 December 1961)

**K.** **I****DOWU** **&** **O****RS.** **(PLAINTIFFS)** **_v._** **A.** **AK****INWUNMI** **&** **OR****S** **(****DEFENDANTS)** **(1961)** **All** **N.L.R.** **887** **Div****i****si****o****n:** High Court (West) **D****at****e** **o****f** **Judgment:** 11th December, 1961 **C****as****e** **Num****b****er:** Ikeja Suit No. HK/14/61 **Before:** Madarikan, J. Motion to Strike Out Statement of Claim as not disclosing a reasonable cause of action. Cross-Motion for leave to Amend. The plaintiffs sought an order setting aside a sale, and the confirmation thereof respectively, of the plaintiffs' family land at Ikate Village; they also sought to set aside two conveyances, executed in 1956 and 1958 respectively. They averred in their Statement of Claim: (1) that the said land has been the property of the Ikate Chieftaincy family from time immemorial; (2) that the first and second defendants sold and conveyed the said land to the seventh defendants by the 1956 conveyance; (3) that by the 1958 conveyance the third, fourth, fifth and sixth defendants confirmed the said sale; and (4) that the first to 6th defendants are not members of the Ikate Chieftaincy Family. The defendants subsequently brought a Motion asking that, as no fraud or mistake was alleged or pleaded in the Statement of Claim or the Writ of Summons the Statement of Claim disclosed no cause of action; and, therefore, should be struck out. The plaintiffs filed a motion for Leave to Amend paragraph 4 of the Statement of Claim to the effect that, of the first six defendants, only the Second defendant was a member of the Ikate Chieftaincy Family that the first six defendants had no right to deal with the land, and that the seventh defendant was well aware of that fact. **_HELD_**** _:_** (1) Only in plain and obvious cases should recourse be had to Order 22 rule 4, of the Western Nigeria High Court (Civil Procedure) Rules, which confers power on the court to strike out a pleading on the ground that it discloses no reasonable cause of action or answer. (2) A pleading will not be struck out under this rule unless it is so defective that no legitimate amendment could save it from being demurral. _Motion_ _to_ _s_ _trike_ _d_ _ismissed:_ _Le_ _ave_ _to_ _a_ _mend_ _granted._ _C_ _a_ _s_ _e_ _s_ _re_ _f_ _e_ _r_ _r_ _e_ _d_ _t_ _o_ _:__-_ _M_ _a_ _y_ _o_ _r_ _o_ _f_ _t_ _h_ _e_ _C_ _i_ _t_ _y_ _o_ _f_ _L_ _o_ _nd_ _o_ _n_ _v_ _._ _H_ _o_ _r_ _ne_ _r_ _,_ 111 L.T. 512; 78 J.P. 229. _Per_ _u_ _Repu_ _b_ _li_ _c_ _v_ _._ _Peruvia_ _n_ _Guan_ _o_ _Co.__,_ 36 Ch.D. 489; 56 L.J. Ch. 1081; 57 L.T. 337; 36 W.R. 217; 3 T.L.R. 848. _Steed_ _s_ _v_ _._ _S_ _teeds_ _,_ (1889), 22 Q.B.D. 537; 58 L.J.Q.B. 302. _Griffiths_ _v._ _London_ _and_ _St._ _Katherine_ _Docks_ _Co.,_ (1884), 13 Q.B.D. 259; 53 L.J.Q.B. 504; 51 L.T. 533; 49 J.P. 100; 33 W.R. 35. _O_ _rde_ _r_ _s_ _an_ _d_ _Ru_ _l_ _e_ _s_ _ref_ _e_ _rre_ _d_ _t_ _o_ _:__-_ _W.R_ _._ _Hig_ _h_ _Cour_ _t_ _(Civ_ _i_ _l_ _P_ _rocedure_ _)_ _Rul_ _e_ _s_ Order 22, rule 4. _Rule_ _s_ _o_ _f_ _th_ _e_ _S_ _u_ _prem_ _e_ _Cou_ _r_ _t_ _o_ _f_ _Judicat_ _u_ _r_ _e_ _(Engla_ _n_ _d_ _)_ Order 25, rule 4. MOTIONS. _O_ _t_ _u_ _ya_ _l_ _o_ for the Plaintiffs. _Lardne_ _r_ for the Defendants. 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 first, second, third, fourth, fifth and sixth defendants to the seventh defendant dated 24-7-56 (hereinafter referred to as the 1956 conveyance) and 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 first and second defendants sold and conveyed the said land to the seventh defendant by the 1956 conveyance; (3) that by the 1958 conveyance the third, fourth, fifth and sixth defendants confirmed the said sale; and (4) that the first to sixth defendants are not members of the Ikate Chieftaincy Family. On the 7th day of July, 1961, Mr Lardner, learned Counsel for the first to sixth 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 1\. The cause of action is misconceived and bad in law and the action should be dismissed inasmuch 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 20 in Volume 234 Ibadan and the Deed of Ratification dated the 24th day of July, 1958, and registered as No. 55 at 55 in Volume 258, Ibadan, and (ii) that the defendants are not members of the Ikate Family, and (iii) that the seventh 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. 2\. 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 first, third to sixth 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 seventh 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_ _C_ _ity_ _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 demurral but something worse than demurral, _i.e.,_ such that no legitimate amendment can save from being demurral. In the _Annual_ _Practice,_ the following note appears under Order 25 rule 4:- _Am_ _e_ _n_ _d_ _me_ _n_ _t_.-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 first, third to sixth 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 seventh 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_ _s_ _trike_ _d_ _ismissed:_ _Le_ _ave_ _to_ _a_ _mend_ _granted._