Alhaji Karim Laguro & Anor. V. Honsu Toku (Bale Of Itoga) & Anor. (1992)
LawGlobal-Hub Lead Judgment Report
M. A. BELGORE, J.S.C
The appellants were defendants at the trial Court and also the appellants at the Court of Appeal. The respondents took a writ against them claiming declaration of title to a piece of land at Itoga in the then Badagary Division of Lagos State, five hundred pounds damages for trespass to the same land and injunction restraining them, their agents or other members of Ibereko Community from continuing trespass on the land. The writ was taken out on 3rd February 1972.
The appellants, as defendants, not only denied the claim but also counter-claimed for a declaration of title to the same piece of land and sought forfeiture of the plaintiffs/respondents’ customary tenancies allegedly held of them by the plaintiffs/respondents; they also claimed possession.
The land in dispute is situate on both sides of the road along Ade-Odo Badagry Road. In the North of it is the land lbereko (the defendants/appellants), to its East are Aradagun and Mosafeso Communities and to the West is the land belonging to Toriko and Ajarafedo communities. In the South are the people called Idaleh.There are buildings and farms of the plaintiffs on the land. When the Ministry of Agriculture wanted to acquire the land there was a census of economic trees and crops and the list was given to Honsu Toku, Bale of Itoga who is the first plaintiff and the list is Exhibit A at trial Court.
It was sometime in 1972 that the defendants including one Ojojo entered the disputed land and destroyed their trees and crops and took away firewood and other things. They did extensive damage to the portion where they attacked. It must be pointed out that all the boundary neighbors of the disputed land and the respondents are of Egun stock except the appellants who are Aworis. Both parties tendered plans of the land. Whilst the plaintiffs/respondents gave the genealogy of their long presence on the land, through their fore-fathers, the appellants gave conflicting evidence which the trial judge carefully enumerated. Examples are (1) the L.A. Primary School referred to as being on the land and belonging to the appellants is actually outside it. (2) the Agricultural settlements allegedly on the disputed land is outside the disputed land. The only evidence of the appellant of long possession is that their “forebears gave the land to some people. He gave them absolutely. This was more than 300 years ago ……………………….. The Hoga and Zanmu people have been on the land for about 60 years ago (sic)”. The trial judge, after a review of the entire evidence, made his findings and found for the plaintiffs now respondents as follows:
Plaintiffs are entitled to a Right of Customary occupancy of all the land edged RED in EXHIBIT “N1” or edged GREEN in EXHIBIT “J” in these Proceedings, as provided in the Land Use Edict 1978.
It is also adjudged that the plaintiffs do recover from the Defendants N200.00 (Two Hundred Naira) as damages for TRESPASS to their land, being the land in dispute in this case.
Finally I make an Order of INJUNCTION restraining the Defendants, their servants, agents or other members of the Ibereko Community from continuing or committing any further acts of trespass on any portion of the land in dispute in this case”.
Against this judgment the appellants appealed to Court of Appeal.
After filing their respective Briefs of Arguments, the respondents applied to amend their statement of claim as filed in the High Court in paragraph 7 thereof by deleting the words “on or around 9th of February 1972” and inserting in their place the words “sometime before the commencement of this action. The amendment was granted and the appeal was argued”. The judgment in the appeal was delivered on the 20th day of May 1986 affirming the decision of the trial Court. Thus this appeal to this Court. It must be pointed out that the appeal was dismissed as a unanimous decision of the Court of Appeal except that in doing so. Nnaemeka-Agu J.C.A (as he then was), dissented on the question of amendment of statement of claim aforementioned. He was of the view that the amendment was too late and as such he would not allow the amendment and the trespass that was found in favour of the respondents. He reasoned that as the battle was fought on a pleading complaining of trespass after the writ was issued could not be remedied by the amendment as the other party would be at a disadvantage. He agreed it was right to amend if the proposed amendment would bring properly into focus the issues between the parties and cited Ibanga & Ors v, Usanga & Ors. (1982) 5 S.C. 103, 126.127 and Akinkuowo v. Fafimoju (1965) NMLR 349; (1965) 2 SCNLR 76. He believed the justice of the case in this instance could not be met by the amendment. He also relied on Newby v. Sharpe (1878) Ch D, 36 and Odeyinka & Ors, v. Ogunjimi (unreported, C.A.W.9 (168) for his decision. He held that the amendment would prejudice the defence of the appellants and he would for that reason agrees with the lead judgment of Kutigi J.C.A (concurred in by Ademola J.C.A) except for the finding of the appeal against trespass which he would allow. He thus also dismissed the appeal against declaration of title and injunction.
Counsel for the appellants formulated the following issues for determination in this appeal:
“The issues which call for determination by the Supreme Court in this appeal are as follows;-
(1) Whether the Respondents discharged the onus cast upon them by the law to warrant the declaration of customary right of occupancy of the piece of land in dispute made in their favour by the lower Court.
(2) Whether the Court below was not in error when it held that the learned trial Judge properly evaluated the evidence led before him.
(3) Whether the majority of the Court below were not in error in granting an amendment to the Statement of Claim at the state at which they did so.”
The onus is always on the person who asserts to prove. The plaintiffs’ evidence, believed by learned trial judge was more credible and it was not difficult for him to believe it and reject the case of the defendants who are the appellants before this Court. The respondents have buildings, farms and all evidence of their being in possession of the land in dispute before the Court. The appellants conceded that the F respondents were in actual possession of the land. The appellants’ averred that they put the respondents in possession had no proof in trial court and it is their duty being not in possession, to prove they had better title to the land. S.145 Evidence Act is clear on this, to wit:
“When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms he is not the owner”.
The respondents, who have proffered evidence of their possession over a long period of time, passing from one generation to another, in their community, unhindered and uninterrupted, are presumed to be the owners. (Onyeakaonwu & Ors. v. Ekwubiri & Ors) (1966) 1 All NLR 32. The primary aim of pleadings is to settle issues in contention between the parties for trial. The function of the trial Court is to look at the pleadings and arrive at its judgment after hearing all the evidence in support of such pleadings. There is evidence in line with the pleadings that the respondents have been in possession of the land in dispute for a long time. The evidence in support of trespass is clear and the lower trial Court believed it i.e. there was possession all along by the respondents and the trespass of the appellants that made them resort to legal remedy. Certainly it is ridiculous to claim as early as 3rd February a trespass that would follow on 9th February, barely a week after taking out the writ. The evidence led and understood by the two parties is that there was a destructive trespass whereby economic tress and crops were destroyed or felled. The amendment was to confirm what the parties actually fought in the trial Court and it is noteworthy that trial judge held as follows:
“I am inclined to believe the evidence of the plaintiffs more probable, the plaintiffs have adduced evidence of positive and numerous acts of ownership, like letting portions of the land, fanning different portions thereof and surveying the land. I believe that the ancestors of the plaintiffs had been fanning the land in dispute and that they planted thereon several economic trees and cash crops. I believe also that the plaintiffs themselves were farming extensively over the land in dispute, I believe the evidence of the plaintiffs and the second defendant that the plaintiffs’ ancestors had been on the land in dispute some 300 years ago.There is no evidence of any positive or cogent act of ownership by the Defendants over the land in dispute……I believe the plaintiffs as to their acts of ownership over the land and hold that such acts are numerous and positive enough to warrant the inference that they are the owners.”
The above findings have not been challenged in the Court of Appeal as Kutigi J.C.A wrote:
“It is significant that the appellants have not challenged any of the above findings were amply supported by the evidence of the witnesses. Further it is settled law that the ascription of probative values to evidence is a matter primarily for the court if trial and where a court of trial unquestionably evaluates the evidence and appraises the facts, it is no business of a court of appeal to substitute its own views of undisputed facts for the views of the trial court (see BALOGUN & ORS v.AGBOOLA (1974) 1 All NLR (Pt. 2) 66). It is equally settled that a Court of Appeal should not easily disturb the findings of fact of a trial judge who had the singular opportunity of listening to the witnesses and watching their performance even though such findings of fact of the inferences drawn from them may be questioned in certain circumstance, (see for example FATOYINBO & ORS V. WILLIAMS (1956) 1 FSC 87 (1956) SCNLR 274; AKINLOYE & ANOR, V. EYIYOLA & ORS. (1968) NMLR 92). None of the special circumstances is shown to exist in the case nor has any been urged upon us.”
As the respondents were in possession before they took out the writ, they were forced by the circumstance of the appellants’ entry into the land to sue. All the evidence of this trespass was before the Court and the respondents’ amendment was merely to bring into focus the real issues before the parties so that justice of the case would be done. The appellants never denied the respondents were in possession, an they claimed was that they were their tenants, a situation they failed to prove. The respondents’ evidence clearly before trial Court was that of deliberate trespass by the appellants and the error corrected to show that the trespass took place before the writ was issued did not prejudice the case of the appellant. There is no doubt they knew the case they faced. The application to amend was not mala fide and I cannot find the injury the appellant suffered therefrom since their contention of being the title holders was rejected at the trial Court and in the Court of Appeal. They never denied entry into the land but stuck to their defence and counter-claim only.
The only admission of entering the land by the appellants is contained in the evidence of their witness, DW.5 when he said:
“We only went with the surveyor to show him the land. We did not go there again. We went to clear the boundary for the surveyor. We went before this action was started.”
This piece of evidence no doubt influenced the decision of the trial Court which was affirmed by the Court of Appeal. That is, to confirm that they actually entered the disputed land before the writ was issued. The respondents maintained they owed their possession to inherited title for several years and not by being tenants of the appellants. So for the appellants to claim “clearing the place for surveyor” before the case started was an act of trespass. It is clear therefore that the appellants went on the land before this case and “cleared the place for surveyor”. The facts in support of possession and trespass could therefore be found in the evidence of both parties, even though the appellant claimed right to be there by virtue of their purported title to the disputed land. It is as such in the interest of justice to bring properly into focus the issues between the parties by the amendment (Walter Wiri & Ors. v. Godwin Wuche & Ors. (1980) 1-2 S.C. 12; Joseph Afolabi & Ors, v. John Adekunle & Anor. (1983) 8 S.C. 98, 117-119; (1983) 2 SCNLR 141.) Certainly no injustice was occasioned by the amendment as all the evidence point to unsolicited entry into the land by appellants claiming title to it. (Bayowa Akinkuowo v. Fafimoju (1965) NMLR 349; (1965) 2 SCNLR 76 Oguntimeyin v. Guhere & Anor. (1964) NMLR 55.
It is only where such amendment would prejudice the case of the other party to the extent where injustice will occur that the Court will refuse amendment of pleadings. (Dominion Flour Mills Ltd. v. George (1960) LLR 53, Adetutu v. Aderohunmu (1984) 6 S.C. 92; (1984) 1 SCNLR 515.) Failure to state exactly the date of the alleged trespass does not vitiate the case as the amendment cures a latent defects only. Plaintiffs alleged trespass; the defendants claimed the entry was the exercise of a right to bring in a surveyor to survey the land. With or without the amendment, it is clear that throughout the trial the appellants maintained they entered upon the land to exercise a right to survey it and in doing so they had to clear the place for the surveyor. This act of theirs, the Court found to be trespass which must be restrained. The evidence of Amos David, DW.3, that the appellants also farmed the land was not pleaded and it was irrelevant to this case, because parties are bound by their pleadings and unless amended to include the evidence given, the evidence of fact unpleaded will go to no issue.
The circumstance of this case in the light of the evidence of the parties was only just to permit the amendment in the Court of Appeal so as to resolve justly the controversy between the parties because such amendment will bring the pleadings in line with the evidence.
I see no merit in this appeal and I dismiss it with N1,000.00 costs to the respondents.
A. G. KARIBI-WHYTE, J.S.C.: I have read the judgment of my learned brother S.M.A Belgore JSC in this appeal. I agree with him that this appeal lacks merit and should be dismissed. I only wish to comment in elaboration of the third issue for determination, which reads:-
“(3) Whether the majority of the Court below were not in error in granting an amendment to the statement of claim at the stage at which they did so”.
The question of the amendment attacked brings into focus the critical basis of the action in this case. Hence a discussion of the amendment raises and accentuates the facts which have given rise to the cause of action. Plaintiffs, on the 3rd February, 1972, brought this action, for themselves and on behalf of the other members of their Itogan Zanmu Community against the Defendants for themselves and on behalf of Ibereko Community. Plaintiffs claim ownership of the land in dispute, a declaration of title, damages for trespass and injunction restraining the Defendants from further trespass, on the land in dispute. They claim to derive their title from their ancestors and that they have from time immemorial been vested absolutely with and have exercised maximum acts of ownership in the portion of the land in dispute. They claim to have been in actual lawful and peaceful possession of the land in dispute at all times material to the action. Then comes the ‘offending’ averment in paragraph 7 of the statement of claim which states as follows-
“7. The Defendants on or around the 9th day of February, 1972, without any lawful claim, right or title unlawfully entered the said land destroyed palm trees, removed large quantities of pots used for tapping and/or storing palm wine, removed and carried away bunches of palm fruits which were harvested and assembled on the land and physically attacked and assaulted the plaintiff’s people on the land”.
Plaintiffs rely on the above averment as the cause of action. This is exemplified by the averment in paragraph 8 of the statement of claim which states;
‘8. The Defendants unlawfully claim title to the land in dispute.”
As I have already pointed out, the writ of action was issued on the 3rd February. 1972.
The defendants on their part generally denied the averment in paragraph 7 of the statement of claim in paragraph 5 of the statement of defence as follows
“5. The defendants deny paragraph 4.6,7,8 and 9 of the statement of claim.”
They went on and by implication from the averments in paragraphs 8, 9, 10 and 11 of the statement of defence reproduced below joined issues with the plaintiffs as to possession of the land in dispute, Defendants averred as follows
“8. The defendants will contend at the trial that the said land in dispute is a portion of land which from time immemorial has been vested absolutely in the Defendants who have for many years exercised maximum acts of ownership thereon.
- The defendants aver that the Plaintiffs are strangers to the land in dispute more particularly in that the land on which the Plaintiffs occupy belongs the Defendants absolutely.
- The Defendants will contend at the trial that the Plaintiffs are, tenants on the land at the will of the Defendants.
“11. The Defendants through their predecessors in title have been in possession as owners of the land in dispute from time immemorial without any interruption.”
Defendants without specifically denying the acts of trespass averred in paragraph 7 of the statement of claim have in the above paragraphs of the statement of defence traversed and joined issues with the allegation of trespass. It has al ways been ideal for denials to be specific. One thing however is significant; that is that the defendants did not regard as material the date of trespass averred by the plaintiffs. Defendants claim to “have been in possession as owners of the land in dispute from time immemorial without any interruption”. Their denial did not join issues with the date suggested.
The observation on the inconsistency in the date of the commencement of the action and of the alleged date of trespass in the statement of claim by the plaintiffs was first raised on appeal in the Court of Appeal by Kehinde Sofola, SAN, learned Counsel to the defendants/appellants. He submitted that the trial Judge made no finding as to which act of the appellants amounted to trespass and upon which his award of damages was based. He pointed out that the action was instituted on the 3rd February, 1972, while the amended statement of claim averred the 9th February, 1972 as the date of trespass. Accordingly, it was submitted that since the statement of claim superseded the writ of summons, the alleged trespass can only be on or about the 9th February. 1972.
Chief Williams, SAN, for the Respondents in reply, submitted that Appellants admitted Respondents were in possession having pleaded that they were their customary tenants. He referred to the evidence before the trial Judge of the Plaintiffs witnesses PW 1, 2, 4 and 5, to which no objection as to trespass was taken. He pointed out that none of the witnesses referred to a specific date of the alleged trespass. He thereupon applied to amend the pleadings to bring it in line with the evidence led as follows, “on or about 9th day of February, 1972” to be amended to read “sometime before the commencement of this action.” He relied on Ibanga & Ors. v. Usanga & Ors. (1982) 5 SC 103,126-127.
In a majorityof 2:1 on this issue, Nnaemeka-Agu, JCA, (as he then was) now J.S.C. dissenting, Kutigi, JCA, who read the leading judgment relied on GL Baker v. Medway Building & Supplies Ltd (1958) 1 WLR. 1216, Tydsley v. Harper 10 Ch .D. 396 said;
“I entirely agree with the above established principles of law and will apply them to this case. Since none of the witnesses who testified in the Court below, gave any specific date of the alleged trespass I am of the view that in order to determine the real matter in controversy between the parties it would be necessary to grant the amendment so as to bring them in line with the evidence led at the trial. I am also of the view that this application has not been brought mala fide and by this blunder the respondents had done no injury to the appellants which could not be compensated for by costs. I am equally of the view that the judgment of the trial Judge should not be upset merely on this technical error because a court of law must give judgment according to the justice of the case (See Karimu Ayinla v. Sifawu Sijuwola (1984) 5 SC.44: (1984) 1 SCNLR 410).”
The application was accordingly granted to amend paragraph 7 of the statement of claim to read “Sometime before the commencement of this action” instead of as before “on or about the 9th day of February, 1972.”
Before this Court, ground 5 of the grounds of appeal reads;
“The learned Justices of the Court of Appeal, (Kutigi and Ademola, JJ.C.A) erred in law in amending paragraph 7 of the statement of claim on the Respondent’s application for amendment during the argument of their Counsel in reply to the Appellant’s Counsel’s submissions and the grant of the amendment resulted in the prejudice of the Appellant’s case and led to a miscarriage of justices.”
The formulation of the third issue for determination in this appeal, above reproduced, is founded on this ground of appeal. Learned Counsel for the Appellants Kayode Sofola, Esqr. and T.E. Williams Esqr. for the Respondents, adopted and relied on the briefs of argument in this appeal.
In his brief of argument learned counsel to the Appellant Kayode Sofola, repeated much the same arguments as was urged on the Court below. The discretion of the trial Judge to grant amendment of the pleadings at any stage of the proceedings even up to judgment was conceded. It was however submitted and quite correctly that the exercise of this discretion is governed by well settled rules; and very important limitations. These are that it must be in the interest of justice and not to prejudice the case of the other party, Wiri & Ors v. Wuche & Ors. (1980) 1-2 S.C.12. Learned Counsel referred to the evidence of trespass at the trial and pointed out that the date of the alleged trespass was not established. Learned Counsel referred to the principles enunciated by the learned Justice of the Court of Appeal and submitted that he failed to apply the correct principles of law to the facts of the case. It was submitted that throughout the trial the defence was concerned with a trespass committed on or about the 9th day of February, 1972. It was unfair to have expected them to have provided a defence to any trespass “Sometime before the commencement of the suit” The phrase it was submitted is nebulous. It was finally submitted that the real issue is whether or not appellants unlawfully entered the land in question on a particular day and did the damage alleged.
“The issue is not whether they entered the land at all at any time hut whether they unlawfully entered unto it on a particular date.”
In a short, terse and pungent reply, Chief Williams for the Respondent pointed out that throughout the proceedings in the trial court, Appellant did not complain about the pleadings in paragraph “7 of the statement of claim, and did not apply to strike it out. He referred to the evidence of PWl, PW2, PW4, PW5 as to trespass without specific dates and to which no objection was taken. It was submitted that in order to determine the real matter in controversy between the parties, it would be necessary to amend the pleadings to bring them in line with evidence. Chief Williams submitted that the addresses of counsel were founded on the evidence of the witnesses which were in relation to the claim of trespass.
I shall now consider these submissions in the light of well settled principles applicable.
The principle on which the court operates is to decide according to the justice of the case, the rights of the parties before it. Hence the basic principle is to grant leave to amend, where the purpose is for determining in the suit the real question or questions in controversy between the parties.
In Amadi v. Thomas Aplin & Co. Ltd. (1972) 1 All NLR (Pt. 1) 409, it was stated that:
“It is part of the duty of a Judge to see that everything is done to facilitate the hearing of an action pending before him wherever it is possible to cure an unintentional blunder in the circumstances of a case and it will help to expedite the hearing of an action…. ”
This power is also exercised on appeal for the same reasons. See Akoh v. Abuh (1988) 3 NWLR. (Pt.85) 696; Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt.60) 214.
There is no doubt that the real issue raised here is whether the defendants were guilty of trespass into the land in dispute before the institution of the action against them. Kutigi J,C.A in the leading judgment of the court pointed out, and I entirely agree with him,”1f there was no trespass before the writ was filed. I wonder what would have given rise to the suit in the first place,”
The Defendants assumed this position and correctly too. It is also significant that the defendants were all along claiming to be owners in possession and were claiming to have been exercising acts of ownership with respect to the land in dispute. This is clearly inconsistent with the exercise by the Plaintiffs of the right of ownership and possession. It seems to me that when the witnesses for the Plaintiffs namely PW1, 2, 4 and 5 gave evidence of acts of trespass “at large” without reference to specific dates, learned Counsel to the Defendants did not object to the evidence because he understood that acts of trespass had been going on all the time,
Again from the nature of the traverse of the allegation of trespass by the defendants, there was no denial of the trespass on the ground that no trespass was committed by or around the 9th February, 1972. It is an affirmation of the trespass ‘alleged on the ground of the exercise of rights of ownership and possession. Accordingly, if Defendants had succeeded in their claim to ownership that would have been an end to plaintiff’s claim to damages in trespass.
It was therefore necessary for the Plaintiff even on appeal to amend paragraph 7 of the statement of claim to bring the averment in line with the evidence at the trial. – See England v. Palmer 14 WACA, 659, This Court has held in Metal Construction (WA) Ltd. & Ors. v. Migliore & anor. (1979) 6-9 S.C. 163 at pp, 1712 that
“A Court of Appeal has an inherent power to amend the record of the trial Court so as to comply with the facts before the trial Court and decision given by it. This is a very necessary power which the appeal court always exercises in and when necessary to prevent occurrence of substantial injustice,”
See also Afolabi & Ors. v. Adekunle & anor (1983) 2 SCNLR 141; (1983) 8 S.C 98 at pp. 117-119 per Aniagolu J.S.C.
Amendments are more easily granted when the grant does not necessitate the calling of additional evidence, or the changing of the character of the case, See Oguntimehin v. Gubere (1964) 1 All NLR.176; (1964) 1 SCNLR 299, In such a case it is generally and correctly held that no prejudice will result from the amendment.
In Chief Ojah & Ors. v. Chief Eyo Ogboni & Ors. (1976) 1 NMLR, 95 at p.99, the principles to guide the Court were enunciated as follows-
“It is well settled law that an amendment of pleadings should be allowed unless:
(i) if it will entail injustice to the respondent.
(ii) If the applicant is acting mala fide (See Tildesley v. Harper (1878) 10 Ch. D. 393, 396; or
(iii) If by his blunder, the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise; (See Tildest’s case (supra), Oguntimehin v. Gubere (1964) 1 All NLR 176, 179; (1964) 1 SCNLR 299 and Amadi v. Thomas Aplin & Co. Ltd. (1972) 1 All NLR (Pt. 1) 409”
Learned Counsel to the Appellant Kayode Sofola, has submitted that the Court below has failed to apply these principles correctly. I fail to appreciate the merit in such a criticism. These is no doubt in the instant case that there has been a blunder in the averment in paragraph 7 of the statement of claim. The evidence of the plaintiff’s witnesses have all pointed unequivocally to or acts trespass before the commencement of the action on the 3rd February, 1972. Defendants did not object to such evidence. There was admittedly established evidence of trespass. Learned Counsel on both sides relied on such evidence in their addresses. Nevertheless, learned Counsel would want the pleadings remain unamended. He cannot and ought not succeed.
Learned Counsel had referred to the prejudice of the amendment that the defence was based on trespass as pleaded. I do not think so. There is nothing on record in the address of learned Counsel to the Defendant to suggest that he suffered any prejudice. If the evidence of Plaintiffs’ witnesses as to trespass related to trespass on or around 9th February, 1972 and Defendant’s case was a denial of the specific date, there would have been conscious attempt to lead such evidence or cross-examination to establish that fact. I find nothing of the sort on the record. The declared object of the Court is to decide the right of parties and not to punish them for the mistakes they make in the course of the proceedings. The adverse party is not entitled to have a mistake uncorrected because he intends to rely on it and it is in his interest that it should remain uncorrected. This Court has declared in Chief Adekeye & Ors. v. Akin-Olugbade & Ors. (1987) 3 NWLR (Pt. 60) 214, 223, that
“There is no kind of mistake or error which if not fraudulent or intended to overreach, the courts cannot correct, if this can be done without injustice to the other party”
I am of opinion that the object of the amendment in this case to bring the pleadings in line with the evidence is perfectly legitimate and in the interest of justice. It can therefore be corrected. No injustice is done to the defendant by the amendment which has not altered the character of the case. To accede to the contention of the Appellants is to compel the Plaintiff to leave the error remain uncorrected at the instance of the Appellants. It is deny the Plaintiff the right to correct the error by bringing the pleadings in line with the evidence at the trial. Such an approach will tantamount to punishing plaintiff for his mistake. This cannot be justice to the plaintiffs. It is also not justice to the Defendants even if it is expedient in the circumstance. I am satisfied that the Court below as right to have granted the amendment to enable a determination of the issues between the parties. There is no merit in this issue.
For the above reasons on this issue and the other reasons given in the judgment of my learned brother Belgore, JSC which I agree with and adopt, I will and hereby dismiss this appeal.
I abide by the costs awarded in the judgment of my learned brother S.M.A, Belgore, J.S.C.
SC.136/1987
