Barde Egwa V. Moses Ciroma Egwa (2006)

LawGlobal-Hub Lead Judgment Report

RHODES-VIVOUR, J.C.A.

In the High Court of Minna, Niger State of Nigeria the Plaintiff who is now the respondent instituted an action against the appellants who therein were the defendants claiming as follows:

(a) Declaration that the plaintiff is the rightful owner of the piece or parcel of land situate and lying at Egwa in Shiroro Local Government Area of Niger State.

(b)A perpetual injunction restraining the defendant, his servants, agents, assigns, privies from trespassing on the disputed land situate and lying at Egwa.

(c) Declaration that the defendant trespassed on the disputed land belonging to the plaintiff.

(d) N20,000 general damages against the defendant for trespass on the disputed land.

Pleadings were ordered in the Suit and were duly settled, filed and exchanged.

Learned counsel for the defendant raised a preliminary objection to the Jurisdiction of the High Court Minna trying the case on the ground that the land, the subject matter of the Suit was not classified as urban land, and so the High Court had no original Jurisdiction to entertain the case.

In a considered Ruling delivered on 9/6/93, A. I. Evuti J. dismissed the preliminary objection holding that by virtue of Sections 6 and 236 of the 1979 Constitution the High Court Minna has Jurisdiction to entertain the case.

Sadly the learned Judge died and the case was transferred to the Court of the Honourable Justice M.S. Zukogi for trial de novo.

M.S. Zukogi J. heard the application all over again and in a considered Ruling delivered on 28/10/97 held that the State High Court had Jurisdiction to entertain the case.

The case accordingly proceeded to trial at the close of pleadings, and the parties testified on their own behalf, called witnesses and tendered exhibits.

The plaintiff’s case as pleaded and testified to is that the boundaries of the disputed land are rivers Gyegegyege on the east, river Shaku on the southwest, on the north by Moses Ciroma farmland, the West by Moses Ciroma farmland and on the south by Barde Egwa farmland. The plaintiff was given the land by his father, Ciroma, who inherited it from his father, Wbayi and Wbayi inherited it from his father Gbeyi. It was the plaintiff’s case that he is the owner of the land in dispute by inheritance from his ancestors.

Sometime in 1984 the defendant unlawfully occupied and cultivated the land without the notice or authority of the plaintiff.

On the other side of the fence the defendant averred that he inherited the land in dispute from his father and that no one has ever challenged his use or title to the land until the plaintiff’s father filed an action at the Upper Area Court Minna.

It was the defendant’s case that he is the customary owner of the land in dispute.

At the conclusion of hearing the learned trial Judge M.S. Zukogi J., after a review of the entire evidence found for the plaintiff and decreed as follows –

“The plaintiff has on the whole proved this case on the preponderance of evidence before this court and they are therefore granted reliefs A-C sought by them under their paragraph 14 of the Amended Statement of Claim and they are on relief ‘D’ granted N10,000 as general damages for trespass on the disputed land. For benefit of doubt relief A-C granted the plaintiff reads:

a) Declaration that the plaintiff is the rightful owner of the piece of parcel of land situate and lying at Egwa in Shiroro Local Government Area of Niger State.

b) A perpetual injunction restraining the defendants, his servants, agents, assigns, privies from trespassing on the disputed land situate and lying at Egwu.

c) Declaration that the defendant trespassed on the disputed land belonging to the plaintiff.”

Being dissatisfied with this judgment the defendant lodged this appeal before the Court of Appeal.

Eight grounds of appeal were filed by the appellant against the decision of the High Court. It is unnecessary to reproduce them. The parties pursuant to Order 6 rules 2 and 4 of the rules of this Court filed and exchanged their written briefs of argument.

The four issues distilled from the appellant’s grounds of appeal set out on their behalf for the determination of this appeal are as follows:

“1. Whether a plaintiff in a claim for declaration of title to land is entitled to judgment even where he failed to adduce evidence as to the founder of the land or the identity of the person who first cultivated thereat while relying on traditional history to prove his claim.

2. Was the trial court right when it discountenanced the issue of res judicata/abuse of court process even when the plaintiff admitted on record that the matter had been litigated upon before another court?
3. Whether the trial court was right to have awarded damages for trespass when the evidence of possession by the parties was neither settled nor duly evaluated.
4. Whether the trial court was right to have granted an amendment of the Statement of Claim to plead root of title and description of the disputed land and after the final address of the defendant even when the defendant was thereby overreached.”

The respondent also submitted four issues for the determination of the appeal. They are:

“1. Whether the evidence led by the respondent/plaintiff at the trial of the High Court, Minna was suffering in the light of burden of proof placed on him for judgment to have been entered in his favour.

2. Whether the issues of of Res Judicata was properly and legally raised by the respondent and proved by the respondent at the trial or whether the issue was abandoned at the trial.
3. Whether the lower court was right in awarding damages of trespass and whether possession was an issue.
4. Whether the learned trial judge was right to have granted the respondent’s application to amend his statement of claim at the time it did.”

I have diligently examined the two sets of issues identified in the respective briefs of the parties, and I am of the view that Issue No.1 in the appellant’s brief, and Issues Nos. 2, 3, and 4 in the respondent’s brief would determine the real grievance in this appeal.

I adopt them for my determination of this appeal.

This is permitted, as Judges who sit to hear appeals are at liberty and has the power to adopt or even formulate issues that in their view would determine the real questions in an appeal. See: Ikegwuoha v. Ohawuchi (1996) 3 NWLR (Pt. 435) p. 146; Aduku v. Adejoh (1994) 5 NWLR (Pt. 346) p. 582.

The issues for determination of this appeal are Issue No. 1 in the appellant’s brief and Issues Nos. 2, 3, and 4 in the respondent’s brief.

On the 21st of February 2006, the date fixed for oral argument, neither the parties nor their counsel were in court. Invoking the provisions of Order 6 rule 9(5) of the rules of this Court the appeal was treated as having been duly argued and Judgment was reserved.

ISSUE NO. 1

“Whether a plaintiff in a claim for declaration of title to land is entitled to judgment even where he failed to adduce evidence as to the founder of the land or the identity of the person who first cultivated thereat while relying on traditional history to prove his claim.”

Learned counsel for the appellant argued in the appellant’s brief that where a plaintiff relies on traditional history he must plead and prove his root of Title and by credible evidence satisfy the court as to who was the founder of the land, and those after him, whom the land devolved on to the last successor.

Relying on Eze v. Adasie (2000) 10 NWLR (Pt. 676) p. 420; Uchendu v. Ogboni (1995) 5 NWLR (Pt. 603) p. 337.

He observed that the trial court ought to have dismissed the plaintiff’s case since the plaintiff failed to meet these requirements.

Learned counsel for the respondent observed that he was able to prove to the satisfaction of the trial court that the respondent is the owner of the land in dispute. He further observed that all the witnesses called corroborated his testimony and their testimony remained credible and consistent. Relying on:

Lipede v. Sonekan (1995) 1 SCNJ p. 184; (1995) 1 NWLR (Pt. 374) 668; American Cyanamid Co. v. Vitality Pharmaceutical Ltd. (1991) 2 SCNJ p.42; (1992) 2 NWLR (Pt.171) 15.

He contended that the trial Judge was right to believe the evidence since it was uncontradicted, urging the court to dismiss the appeal and affirm the Judgment of the trial court.

There are five ways in which ownership of land may be proved.

They are:

1. By traditional evidence.
2. Proof of acts of ownership, acts by persons or persons claiming the land such as selling, leasing, renting out all or part of the land or farming on it otherwise utilizing the land beneficially, such acts of ownership extending over a sufficient length of time and numerous and positive enough to warrant the inference that he is the true owner.
3. Proof by production of document of Title which must be authenticated.
4. Proof of ownership by acts of long possession and enjoyment in respect of the land to which the acts are done.
5. Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute, may rank also as a means of proving ownership of the land in dispute.

See Section 45 of the Evidence Act;

Pairo v. Tenalo (1976) 12 SC p. 31; Idundun v. Okumagba (1976) 9-10 SC p. 224; Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt. 5) p. 41.

The plaintiff based his case on traditional evidence to prove that he has a better title than the defendant to the farmland in dispute.

The learned trial Judge on page 79 of the Record of appeal carefully evaluated evidence on this issue and found that the plaintiff proved his case on the preponderance of evidence before the court.

The trial Judge was of the view which I accept that the plaintiff traced his root of Title from his grandfather to his father and then to him. All of them farmed on the land. The evidence was unchallenged. Her lordship also examined the testimony of Baba Wasa (Sarki Egwa) who was 104 years when he testified. His testimony supported the plaintiff’s evidence.

The trial Judge found that the defendant was unable to say how his father who he inherited the land from got the land.

My lords, proof of title to land must be by credible and compelling evidence. The plaintiff/respondent pleaded that his genealogical table of descent emanated from his ancestor, Gbeyi owner of the land in dispute and gave traditional evidence before the trial court which supports the pleading. The plaintiff/respondent succeeded in proving the base upon which he founded his title.

See: Odofin v. Ayoola (1984) 11 SC p. 72; Owoade v. Omitola (1988) 2 NWLR (Pt. 77) p. 413; Mogagi & 3 Ors. v. Cadbury Nig. Ltd. & Ors. (1985) 2 NWLR (Pt. 7) p. 393.

In a claim for declaration of Title to land the onus is on the plaintiff to prove his title and this is done without relying on the weakness of the defendant’s case.

See: M. Atuanya v. F. Onyejekwe & Anor. In re: Ofiaju Mbajekwe (1975) 3 SC p.167.

The burning issue is who first settled on the land and has for a very long time been in effective control and possession of the land. It was obvious to the trial Judge and to me that the evidence of the appellant’s presence on the land is clearly not that of possession but of trespass which is the subject matter of the suit leading to this appeal.

The standard of proof required in civil cases is preponderance of evidence. That is to say one sides position outweighs the other.

In this case the respondent’s case at the court below was more convincing than the evidence which was offered by the appellant. In the circumstances the trial Judge was right to hold that the respondent as plaintiff proved his case on the preponderance of evidence before the court.

ISSUE NO.2

“Whether the issue of Res Judicata was properly and legally raised by the respondent and proved by the respondent at the trial or whether the issue was abandoned at the trial.”

Learned counsel for the appellant argued in his brief that the plaintiff/respondent gave evidence in the trial court admitting that this case was decided by a court before the same action was instituted again in the High Court Minna. He referred to the plaintiff’s testimony on page 31 lines 18 – 22 of the Record of Appeal.

Relying on Nwanyawu v. Nweka (1995) 5 NWLR (Pt. 394) p. 227. He submitted that in the circumstances he was entitled to raise the issue of res judicata.

He urged this Court to resolve this issue in favour of the appellant.

Learned counsel for the respondent submitted that the party raising a plea of Res Judicata is to specifically plead it and at the trial tender the previous Judgment to show that there has been a previous litigation over the same matter by the same parties or their privies.

Reference was made to:

Assam v. Okposin (2000) 10 NWLR (Pt. 676) p. 674; Aro v. Aro (2000) 3 NWLR (Pt. 649) p. 443.

He observed that the appellant abandoned the issue of Res Judicata and that the testimony of the respondent on the issue of Res Judicata is not an admission.

He urged the court to hold that the appellant has not proved the issues of Res Judicata.

Res Judicata can be explained thus:

Once a final Judgment has been delivered by a court of competent jurisdiction on the merits, the Judgment is conclusive as to the rights of the parties and their privies. The Judgment constitutes an absolute bar to a subsequent action involving the same parties, subject matter.

For example if ‘A’ sues ‘B’ for Declaration of Title to land and a court of competent jurisdiction rules against ‘A’. That Judgment remains inviolate until set aside. ‘A’ would not be allowed to bring the same action again against ‘B’. If he does, ‘B’ would plead the Judgment and tender an authenticated copy of the judgment to satisfy the court that a court of competent jurisdiction had previously settled the matter.

Res Judicata is thus a shield to protect ‘B’. The reasoning is simple. There must be an end to Litigation. ‘A’ would not be allowed to relitigate an issue that has been decided by a court of competent jurisdictions.

To sustain a plea of res Judicata the party pleading it (the defendant herein) must satisfy the following conditions:

1. that the parties or their privies are the same in the present case as in the previous case;
2. that the issue and subject matter are the same in the previous suit as in the present suit;
3. that the proceedings in the pervious case must have been given by a court of competent jurisdiction;
4. that the previous decision must have finally decided the issues between the parties.

The plea would fail in its entirety if any of these conditions are found wanting. See:

Udo v. Obot (1989) 1 NWLR (Pt. 95) p. 59; Dzungwe v. Gbishe (1985) 2 NWLR (Pt. 8) p. 528; Ikpang v. Edoho (1978) 6-7 SC p. 221; Bamishebi v. Faleye (1987) 2 NWLR (Pt. 54) p. 51.

On page 80 of the Record of Appeal, this is what the learned trial Judge said:

“On the issue of Res Judicata raised by the defendant, there is no record of the lower court before us and so this court cannot act on that issue …”

I agree with the learned trial Judge. What her lordship is saying is that a defendant seeking to rely on Res Judicata must plead it and tender an authenticated copy of the Judgment relied on. I have carefully read through the Record of Appeal and I agree with the court below that the plea of res Judicata relied on by the defendant was not made out.

I must comment on the testimony of PW1 which the appellant says amounts to an admission that there was a previous suit in which the issue of the ownership of the land, subject of this Suit was decided.

The testimony is on page 31 of the Record of Appeal, and the relevant portion of the testimony of PW1 is lines 18 – 22. It reads:

“This trespass started since 1994 when my father was still living. My father then sued him at the Area Court Gwada and the case was transferred froml Gwada to Civil Upper Area Court Bosso and it was consequently struck out about 1990. After the striking out we applied for relisting which the court refused. My father died in 1993. After my father died I sued the defendant.”

It is clear from the above testimony that the respondent sued the appellant in an Area Court, a court of competent Jurisdiction. It has been stated in a plethora of cases that in deciding what the subject matter is in cases before Area courts, customary courts, the substance and not the form is of paramount importance. That is to say all the evidence in the proceedings must be examined in order to determine the subject matter of the controversy between the parties. See-

Dokuho Omoni (1999) 8 NWLR (Pt. 125) p. 186; Oyah v. Ikalile (1995) 7 NWLR (Pt. 406) p. 150; Ajao v. Alao (1988) 5 NWLR (Pt. 45) p. 802; Adogan v. Aina (1964) 1 ANLR p. 127.

My lords, in the absence of a certified True Copy of the Judgment of the Area Court the trial Judge and indeed this Court were unable to ascertain who the parties were and what the subject matter and issues were.

The testimony of PW1 is an admission that his father sued someone for trespass on his land but definitely not an admission that Judgment in the Suit was ever delivered. After all a suit that was struck out can never operate as Res Judicata since nothing was decided.

In paragraph 8(b) of the Statement of defence the appellants pleaded record of Proceedings/Ruling of the Civil Upper Area Court Minna.

This document was not tendered by the appellant at the court below to support his plea of Res Judicata. This attitude by the appellant brings into focus the provisions of Section 149(d) of The Evidence Act.

The provision is concerned with the withholding of evidence. The court will readily presume that the evidence (in this case the Record of proceedings to sustain the plea of res Judicata) to be elicited through the documents pleaded but which were not produced would if produced be unfavourable to him who withheld it. See: Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) p. 747.

In my view it is an inversion of proper practice for the appellant who made it clear that he would be relying on the Record of Proceedings of the Civil Upper Area Court Minna to with hold it from the court. In the circumstances, I draw an adverse inference in that the said Record of Proceedings simply shows that the Suit was struck out. None of the issues between the parties was decided. The Record of Proceedings is thus irrelevant to sustain the illusory plea of Res Judicata.

The appellant failed woefully on the plea of res judcata and the trial Judge was right in her findings more so as none of the conditions alluded to were established.

ISSUE NO.3

“Whether the lower Court was right in awarding damages for trespass and whether possession was all issue.”

Learned counsel for the appellant argued in his brief that the respondent did not prove exclusive possession to justify the award of N10,000 as damages for trespass.

He submitted that since the trial Judge failed to take into account the evidence of the appellant and his witnesses in respect of possession of the disputed land the finding of the trial Judge should be set aside. Reference was made to :

Lipede v. Shonekan (1995) 1 NWLR (Pt. 374) p. 668; Umesie v. Onuagulucbi (1995) 9 NWLR (Pt. 421) p. 515.

Learned counsel for the respondent observed that the issue of possession was never an issue as it was not pleaded.

He further observed that the declaration granted by the court below that the appellant’s incursion into the respondent’s land constitutes trespass and the award of damages for the trespass were correct decisions. He referred to Osuki v. lsiocha (1989) 6 SCNJ p. 227 and urged this court to dismiss this issue and affirm the decision of the court below.

The respondent’s case against the appellant was for trespass and injunction on the disputed farmland he claims belongs to him.

The law is well settled that when as in this case the respondent claims for trespass and injunction his title is automatically in issue.

See: Nzekwu v. Nzekwu (1989) 3 SC (Pt. 11) p. 76; Ogunde v. Ojomu (1972) 4 SC p. 105; Aromire v. Awoysemi (1972) 1 All NLR p. 101.

:…At page 80 of the Record of Appeal the learned trial Judge said:

“… And before the trespass the plaintiff testified that he was farming that land and cultivating yam, g/corn, millet, rice and groundnut on it. He use to eat and sell the products he said. But he has not been able to cultivate that land since 1984 to date. He has proved on the preponderance of evidence that trespass was committed on that land…”

In the instant case, since the respondents were rightly adjudged to have a better title than the appellants to the farmland in dispute the trial court had no option but to sustain the claims for damages for trespass and injunction.

The appellant pleaded that he has been cultivating the land long before 1984, he being the customary owner of the land. The Trial Judge found and quite rightly in my view that the appellant’s presence on the land amounted to trespass.

The question of taking into account the testimony of the appellant’s witnesses in respect of possession of the land no longer arises, as the issue of trespass goes with the proof that the respondent owned the land exclusively. Since the court found that the respondent owns the land, his claim for trespass must succeed. See-

P. Amakor v. B. Obiefuna (1974) 3 SC p. 67; N. Carpenter & Anor. v. B. Laruwun (1970) 2 ALL A LR p. 138.

A person in possession of land or the owner can maintain an action in trespass against anyone who cannot show a better Title. See:

Ogundipe v. Awe (1988) 1 NWLR (Pt. 68) p.118; Chief Imah & Anor v. Chief Okogbe & Anor. (1993) 9 NWLR (Pt. 316) p. 159 and once the trial Judge is satisfied as to the identity of the land trespassed on he can proceed to award damages.

In the light of the findings of the court below which I agree with, the learned Trial Judge was right to award damages for trespass.

I must at this stage make an observation before I proceed to consider the fourth and final issue for determination.

During trial, the site plan was admitted as ID1, that is Identification 1, it was never admitted as an exhibit. I must say straightaway that admitting documents in evidence for Identification purposes (ID) is unknown in the accusatorial system of jurisdiction practiced in Nigeria. The Evidence Act makes no provision for documents to be tendered for ‘ID’ or as ‘ID’. Documents are either tendered as exhibits or not tendered at all.

A document tendered for ID purposes has no probative value whatsoever, it is as if nothing was tendered.

In this case though, it was not necessary to tender the plan since the identity of the land was not in dispute and the trial Judge was satisfied with the area of the land after visiting the Locus in quo.

ISSUE NO.4

“Whether the learned trial Judge was right to have granted the respondent application to amend his statement of claim at the time it did.”

Learned counsel for the appellant observed that at the court below, the respondent was allowed to amend his pleadings after the close of the case and after the appellant’s counsel had addressed the court. He further observed that by the amendment the respondent was allowed to set up a completely new case to wit:

(a) pleading of title to the land;

(b) giving a description of the disputed land

Relying on Bamishebi v. Ote (1995) 8 NWLR (Pt. 411) p. 1.

He submitted that amendment can be granted at any time before Judgment, but not after the close of argument.

Concluding he observed that by the amendment he was overreached since he was unable to adduce new evidence.

He urged this court to resolve this issue in favour of the appellant.

Replying learned counsel for the respondent observed in his brief that the amendment to his pleadings was designed to normalize the evidence already before the court.

Relying on Laguro v. Toro (1992) 2 SCNJ p. 201; (1992) 2 NWLR (Pt.223) 278.

He argued that learned counsel for the appellant cross-examined the respondent’s witnesses and so the question of learned counsel for the appellant being prejudiced by the amendment does not arise.

He urged this Court to dismiss this appeal in totality and to affirm the decision of the High Court Minna.

It is clear to me after reading submissions of learned counsel for the appellant that he completely misunderstands the power of courts to grant amendments to pleadings.

Courts will allow amendments to pleadings rather than give Judgment in ignorance of facts which ought to be known before rights are finally decided. In that regard an amendment may be allowed before, during, or after trial, or even after judgment or on appeal.

Before Trial a plaintiff would be allowed to amend his pleadings to add a new cause of action if be so desires the defendant a new defence. Consequently amendments made before the trial commences cannot be impeached. See-

A.G. Edo State v. Jessica Trading Co. Ltd. (1999) 5 NWLR (Pt. 604) p. 500; Bendel Ins. Co. Plc. v. BCM Finance (1997) 8 NWLR (Pt. 518) p. 597; Rose v. Davies (1876) 2 Ch.D. p. 729.

During trial amendments are not readily allowed. This is so because the party seeking the amendment most times seeks to raise new issues which were not in contemplation of the parties at the time the Suit was filed. Where an amendment is allowed during trial an opportunity should be given to counsel on the other side to consider it and adduce evidence.

Where amendments are granted during trial the adverse party must always be given an opportunity of meeting the new matter. See: Unipetrol Nig. (Ltd.) v. Musa (1992) 7 NWLR (Pt. 251) p. 63.

An amendment would be allowed during trial if it will not cause unnecessary difficulties, to wit: the adverse party applying to amend his own processes, requesting for further better and particulars, reopening the case, recalling and calling further evidence.

The court would readily grant amendment of pleadings after the close of a case where there is good and strong justification for the amendments, and where the subject of the amendment has been referred to during trial by counsel and evidence given on it, and adverse counsel cross-examined on it or had the opportunity to cross examine on it. See:

Taiwo v. Akinwumi (1975) 1 ALL NR (Pt.1) p. 202;

Oguntimehin v. K. Gubere & Anor. (1964) 1 ALL NLR p. 176.

At this stage pleadings are amended to bring them in line with evidence led.

By Section 22 of the Supreme Court Act Cap 424 of the Laws of the Federation 1990, the Supreme Court is given identical powers with Section 16 of the Court of Appeal Act to amend pleadings.

Amendments at this stage would be allowed to correct slips, blunders, errors and inadvertence of counsel to be corrected in the interest of justice once the court is satisfied that no injustice is occasioned to the other party. Amendments to pleadings will also be allowed at this stage to bring the pleadings in line with the evidence given provided the amendment is not intended to overreach, and the amendment does not change the other parties case. See-

Obinyiriuka v. Aliche (1991) 4 NWLR (Pt. 183) p. 87; Concord Press (Nig.)Ltd. v. Obilo (1990) 7 NWLR (Pt. 162) p. 303; Alsthom S.A. v. Saraki (2000) 10- 11 SC p. 48.

An amendment of pleadings will be refused where if granting it, it will entail injustice to the respondent, or where the applicant is acting mala fide or where by his blunder the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise. See: Ojah v. Oghoni (1976) 1 NNLR p. 95.

In this case Amendments were allowed in the court below after close of evidence and after learned counsel for the appellant had concluded his closing speech.

Learned counsel for the appellant is of the view that he was overreached since he was unable to call evidence.

The application by the respondent to amend his pleadings at the court below was brought under Order 26 rule 2 of the High Court Civil Procedure Rules. It reads:

“The Court of a Judge In chambers may, at any stage of the proceedings allow either party to alter or amend his endorsement or pleadings, in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. ”

The amendments sought were to allow the respondent pleads:

(a) Title to the land (root of Title)

(b) Description of the land (boundaries of the disputed land).

After hearing both sides, the learned trial Judge granted the application. This is what the trial Judge had to say on page 67 of the Record of Appeal:

“The application before us will not in any way be prejudicial to the Respondent. This is because as the applicant’s counsel submitted, the application is just to normalize what they already have on record. Thy have laid evidence through the plaintiff and PW3 to the boundaries of the disputed land and as to the root of title of the same disputed land. Moreso the court visited the locus and was shown the boundaries too. What they are seeking by their application is just to normalize their records; as these facts already exist in evidence. As the application will not prejudice the respondent neither will it cause him any injustice, nor will it overreach the applicant, for the above reasons therefore this application is hereby granted.”

My lords, I have examined the Record of proceedings in detail. The testimonies of the respondent’s witnesses before the lower court are on pages 31 to 39.

I find it strange for counsel for the appellant to talk of being overreached when the Records show that the respondent gave evidence on his root of title and boundaries of the disputed land, and learned counsel for the appellant cross examined all the witnesses on both issues.

Once counsel cross examined on issues the other party thereafter seeks to amend his pleadings to include, it would be a futile exercise to turn around to say he is being overreached.

The learned trial Judge was right to grant amendments to the pleadings of the plaintiff so as to bring pleadings in line with evidence already given.

I find no merit in this appeal and I dismiss it with N5,000 costs to the respondent.

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Other Citations: (2006)LCN/2152(CA)