Chief G. U. Edoigiawerie V. Mrs. Atiti Aideyan (2002)

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AMINA ADAMU AUGIE, J.C.A. 

This is an application for an order granting the respondent/applicant leave to further amend his further amended statement of defence filed and used in the trial High Court. The grounds for the application are as follows:-

(1) The plaintiff/appellant/respondent testified in this case on 15/2/2001. While she was being cross-examined, she said as follows:-

‘..It is not true that my husband PW2 applied for parcels of land using the name of the wives and children to cover up…’

These facts of the evidence elicited under cross-examination were not pleaded in the statement of defence.

(2) On 22/3/2001 the defendant/respondent/applicant gave evidence in his defence and part of what he said in his testimony is as follows:-

… I eventually bought the land. They were many people the day I paid for the land. I was taken to the land by Omosefe Osazee in the presence of the people who were present when I paid for the land … I was told that the land was my property having paid for it …”

The fact of this piece of evidence by the defendant was also not specifically pleaded in the statement of defence.

No application was brought either before judgment was delivered in this case to amend the statement of defence so as to plead these facts.

(3) The purpose of this application therefore is to amend the statement of defence and plead these facts so as to bring the pleading of the applicant in line with the evidence given in court which evidence is in the record of appeal (proceedings in the lower court)

(4) That when these pieces of evidence were given in court they were not objected to by counsel to the plaintiff/appellant/respondent.

The application is supported by an 11-paragraph affidavit deposed to by Samuel Iredia Osifo, legal practitioner, wherein he averred as follows:-

3. That I conducted this case for and on behalf of the defendant/applicant in the lower court.
4. That I was aware during the hearing of this case in the lower court that I elicited certain answers during cross-examination from the plaintiff/respondent the facts of which were not specifically pleaded.
5. That I also knew as a fact that a piece of evidence given by the applicant in his evidence-in-chief about what happened when he bought the land in dispute in this case from the original owner of the land was not specifically pleaded.
6. That the pieces of evidence formed part of the record of proceedings in the lower court, as they were not objected to by counsel to the plaintiff/appellant/respondent.
7. That after the close of evidence in the lower court I forgot to apply to amend the statement of defence of the applicant so as to plead the facts of the pieces of evidence by the plaintiff and the defendant.
8. That the purpose of this application therefore is to amend the said statement of defence of the defendant and plead the facts of the evidence given in the court below.
9. That the amendment sought to be made is set out and underlined in the 1st further amended statement of defence attached herewith and marked as exhibit’ A’.
10. That in the interest of justice this application should be granted.

In opposing the application, the respondent filed an 8-paragraph counter-affidavit, wherein Osakpanwan Ogieriakhi, legal practitioner, deposed thus:-

3. Appellant/respondent’s case at all times is that the land in dispute belongs to her under Benin customary law being the beneficiary of an Oba’s approval in her name in respect of the said land.
4. I am informed by K. O. Longe, Esq., and I verily believe that this issue was exhaustively argued and canvassed on both sides before the lower court.
5. That the amendment the applicant seeks to make touches one of the issues canvassed by the appellant in this appeal.
6. I verily believe that the application is overreaching and not made in good faith.
7. I verily believe that the grant of this application will be prejudicial to the appellant/respondent.
8. I swear to this affidavit bona fide – believing the contents to be true…

Due to the contentious nature of this application, briefs of arguments were ordered, filed and exchanged by the parties, and in the applicant’s brief prepared by S. Iredia Osifo, Esq., it was submitted that the sole issue in this application, is whether this court can grant the application and allow the applicant to further amend his statement of defence so as to bring his pleadings in line with the evidence already given in the lower court. Citing Section 16 of the Court of Appeal Act 1976, Order 1 rule 19(1) & Order 3 rule 3(1) of the Court of Appeal Rules, and Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214, it was submitted that the jurisdiction of this court to grant the prayers sought in this application are undoubted; that the amendment sought is to bring the statement of defence in line with the evidence in court, which though not specifically pleaded was not objected to by counsel for the respondent, quoting the observation of Madarikan JSC, in Ojah Ojah & Ors. v. Eyo Ogboni & Ors. (1976) 1All NLR (Pt.1) 346 at 355-356; and that the evidence already led in this case by the defendant is important for the determination of this appeal just as it was for the determination of the suit in the court below, citing Oguntimehin v. Gubere (1964) 1 All NLR 176 at 180, where the Supreme Court held as follows:-

“In the present case either party called his surveyor at the start of the trial and both parties argued on what was in issue between them by reference to their plans.

In effect they proceeded with the contest as if the plaintiff’s pleadings had been what it became after the amendment; all that the amendment did was to write down what the defendant had known all along to the plaintiffs case. The amendment did not take him by surprise, and he has no just cause for complaint.”

On the averments in paragraph 5 & 6 of the respondent’s a counter-affidavit (supra), the applicant submitted that the opposition cannot be justified by either or both of the said paragraphs for the following reasons:-

(a) The grouse of the respondent in her brief of argument in the main appeal is as contained in her issue 1. The appellant complained against the use by the learned trial Judge of exhibit G, which was a document admitted in evidence subject to a condition. And that the applicant not having fulfilled the condition the learned trial Judge was not entitled to look at exhibit G at judgment stage.

(b) The issue that the respondent would be overreached if this application is granted has not been raised bona fide.

The manner of such overreachment has not been indicated in the said counter affidavit.

While dealing with the counter-claim in its judgment, the lower court held:-

“With respect to the counter claim of the defendant and having regard to my findings supra, the counter-claim must succeed … He transferred his title to the defendant through sale and put him in possession in the presence of witnesses. This Piece of evidence which I accept was not controverted by the defendant and her witnesses.”

(Italics his)

Citing Order 26 rule 2 of the High Court (Civil Procedure) Rules, 1988, Adekeye v. Akin-Olugbade (supra), it is the applicant’s contention that the trial court would have allowed the amendment because the respondent would not have had any justifiable reason for opposing the amendment since it was merely an attempt to bring the pleadings in line with the evidence already led in court, and even at this stage in this court, the amendment sought will not take the respondent by surprise or overreach her, more so, as this court is enjoined by Order 1 rule 19(1) of the rules of this court and Section 16 of the Court of Appeal Act to exercise the powers of the trial court in conducting the appeal proceedings. Citing Union Bank (Nig.) Plc. v. Orharhuge (2000) 2 NWLR (Pt. 645) 495; England v. Palmer (1955) 14 WACA 659, it was further submitted that this application is not intended to prejudice, embarrass or delay the fair trial of this suit as the trial stage is over, rather that granting the application will assist this court in determining whether or not the learned trial Judge came to the right decision in the case.

In the respondent’s brief prepared by Kenneth Oladipo Longe, Esq., it was submitted that the issue that arises for determination in this application is whether this is a proper case in which this court should grant amendment of pleadings? It was not disputed that this court has inherent powers to allow the amendment, however it was argued that in considering the application, the court would look at the materiality of the proposed amendment, citing Jessica Trading Co. Ltd. v. Bendel Insurance Ltd. (1993) 1 NWLR (Pt.271) 538 at 547-548.

It was further submitted that the real question in controversy in this appeal is, who between the plaintiff and the defendant’s vendor, Omosefe Osazee, had a valid Oba’s approval, and some of the evidence led was set out in the brief. However, as Mr. Osifo rightly submitted while moving this application, this is not the appeal proper and evidence adduced by the parties on who got approval first but who made a good title is besides the point, and the point is whether this court should grant this application to amend the pleadings at this stage of the proceedings – on appeal. Nonetheless, the respondent further submitted that it is not correct for the respondent to say that he did not plead what happened when he bought the land, that in paragraph 7 of the further amended statement at page 56 of the records, the applicant pleaded that after his vendor transferred the land, he put the said vendor on the land to farm on it, therefore that the proposed amendment is useless and inconsistent with paragraph 7 of the further amended statement of defence and will not cure any defect the applicant seeks to cure because he did not even mention the names of the people who were present when the said parcel of land was handed over to him, citing Taiwo v. Ogunsanya (1967) NMLR 375; Erinosho v. Owokoniran (1965) NMLR 479 at 483.

It was further argued that it is not enough to say that the evidence was received without objection and the applicant is only applying to bring the pleadings in line with evidence led; that the proposed amendment should have been adverted to in the proceedings and counsel should have addressed on it, citing Taiwo v. Akinwumi (1975) NSCC 224 at 236; that the amendment sought did not emerge as an issue in the course of trial and neither counsel addressed on it; and that the piece of evidence referred to by the applicant is just a solitary emission from his as defendant and no where else was it referred to.

This court was therefore urged to refuse the application because the applicant had not met the criteria for the application to be granted and will overreach the respondent who has argued in her brief that exhibit G, the only link to the applicant with the land is not tenable, citing Ojogbue v. Nnubia (1972) 1 All NLR (Pt. 2) 226 at 232.

Now, Section 16 of the Court of Appeal Act provides as follows:-

“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, … and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court …” (Italics mine)

Order 1 rule 19(1) of the Court of Appeal Rules is more specific.

It reads:-

“In relation to an appeal the court shall have all the powers and duties as to amendment and otherwise of the High Court … “(Italics mine)

This court therefore has both inherent and statutory power to grant an application for leave to amend a statement of defence in appropriate cases. This is the import of the above provisions, which enable an appellate court, in exercising its appellate jurisdiction, to exercise all the powers of a court of first instance with respect to the appeal before it – see Igbe v. New Nigeria Bank (1991) 3 NWLR (Pt.178) 233.

What is certain also is that where the matter involved in the proposed amendment had been raised in the course of the trial by evidence adduced, and the applicant was not acting mala fides by the proposed amendment and such amendment will not entail an injustice to the adverse party, the proposed amendment is usually granted in the interest of justice in order to bring the evidence at the trial in line with the pleadings – see Adepoju v. Oke (1990) 7 NWLR (Pt.164) 643, Olagunju v. Adeniran (2001) 17 NWLR (Pt.741) 159; Ademuyiwa v. UBA Ltd. (1996) 8 NWLR (Pt. 468) 567; Equity Bank (Nig.) Plc. v. Daura (1999) 10 NWLR (Pt.621) 147; Adekeye v. Akin-Olugbade (supra), where Oputa, JSC. stated as follows:-

“The aim of an amendment is usually to prevent the manifest justice of a cause from being defeated or delayed by formal slips, which arise from the inadvertence of counsel. It will certainly be wrong to visit the inadvertence or mistake of counsel on the litigant. The courts have therefore through the years taken a stand that however negligent or careless may have been the slips, however late the proposed amendment, it ought to be allowed, if this can be done without injustice to the other side, for a step taken to ensure justice cannot at the same time and in the same breath be used to perpetuate an injustice on the opposite party”

In this case, the proposed amendment seeks to add the statement-

“plaintiff (sic) bought and paid for the land in the presence of witnesses. The land was also handed over to the defendant in the presence of the same witnesses” to paragraph 4 of the existing statement of defence, with the aim of bringing it in line with the applicant’s evidence in court. In my view, the proposed amendment is quite innocuous, and I am satisfied that the application was not only brought in good faith, but that the proposed amendment will not entail any injustice to the appellant/respondent. In any case, the respondent can and will be compensated with costs. As Oputa, J.S.C. further stated in Adekeye v. Akin-Olugbade (supra):-

“The test as to whether a proposed amendment should be allowed is therefore whether or not the party applying to amend can do so without placing the opposite party in such a position which cannot be redressed by that panacea which heals every sore in litigation, namely costs.” (Italics mine)

In this case, the respondent has not shown how the proposed amendment would overreach her; she is not unaware of the evidence in question, and the proposed amendment will not add or subtract from her complaint against the use of exhibit G by the learned trial Judge. There is therefore nothing to preclude the grant of this application, which merely seeks to bring the evidence at the trial in line with the pleadings, and I so hold. The applicant is granted leave to further amend his further amended statement of defence filed and used in the trial High Court in the manner set out and underlined in the proposed “first further amended statement of defence”, and the said first further amended statement of defence is hereby deemed as properly filed and served. The respondent is awarded costs of a N3, 000.00.

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Other Citations: 2002)LCN/1251(CA)