James Oguntimeyin V. Kpekpe Gubere & Anor (1964)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN JSC

In this appeal the defendant complains of the judgement given by Kester J. in the Warri Suit No. W/87/1957 in favour of the aria family.

The Oria case was that they were the owners of a large area known as Ekrorhior Quarter at Aladja; that within it, in years gone by, the arias had granted two enclaves to ancestors of the defendant, but he was laying a claim to more.

The arias began their suit with a plan marked Exhibit B; (it is plan No. MWC/40/57); on it their land was shown verged blue, and the enclaves verged pink. Learned counsel for the defendant tells us that the Claim   originally was for a declaration of title to the land edged pink, and an   injunction. In the Statement of Claim the arias ask for a declaration to the   land verged in blue, and an order restraining the defendant from entering beyond the areas verged in pink. That was clear enough: it conceded to the  defendant the two enclaves to the east and the other to the west of the  road shown on the plan, and the defendant. was not to go outside them.  There was, however, a mistake, namely that, without wishing it, the arias  were asking for a declaration which included those enclaves.

Paragraph 6 of the Defence states that-

‘The defendant is unable to understand plaintiffs contention as to  the cause of action in the present suit and contends that on plaintiffs  own showing in the statement of claim there ought to be judgement for  the defendant in respect of the area verged pink to which area the  defendant asserts his claim. In order to bring out this contention clearly defendant will at the hearing produce in court a plan of the area to which  he lays claim and in respect of which he joins issue with the plaintiff.  The defendant however joins issue with plaintiff only in respect of the  land claimed by him in accordance with his own plan.’

Adroit, but not quite candid; for the defendants plan-which is Exhibit C (No. G. A. 290A/57) shows to the west of the road a much larger piece than the arias were conceding, and the arias were to wait until, the hearing  before they could see what it was. What was worse was this: shortly before  the case was to come on, the defendant applied for leave to delete the word  only near the close of paragraph 6 of his Defence; but in the event that  was not allowed.

The Court note of 25 May, 1960 states that-

‘There is a dispute as to the extent of the land in dispute. I hereby grant leave for the Plaintiffs plan to be withdrawn and for the land claimed by the defendant to be shown in a different colour, on the plaintiffs’ plan and according to the scale to which the plaintiffs plan is drawn. ‘

On the 26th May, counsel for the plaintiffs, realising that the area coloured pink on his plan was not in dispute, asked for an adjournment for three months, and had another plan made, namely the plan marked Exhibit A: it is plan No. MWC/40B/57. When the hearing began he called the plaintiffs’ surveyor to put in the new plan, and the surveyor in his evidence under cross-examination, said that-

‘the area now in dispute amounting’ (perhaps a mistake for ‘according’) ‘to Exhibit A is the area verged pink to the North West of the area edged green in Exhibit A ‘The areas marked pink and green in Exhibit A are the areas represented in this plan No. GA/290N57 produced in Court.

The note goes on to state-‘Plan produced and tendered by the defendant marked Exhibit C.’ For convenience, it would seem, the defendants  surveyor was called next as the first witness for the defendant, and he  confirmed what the plaintiffs surveyor had testified. Thus at the outset of the trial both sides knew what was in controversy between them.

There was a formal defect left by oversight: plaintiffs counsel did not ask for amendment of the Writ of summons and of the Statement of Claim to bring them into line with the new plan, exhibit A, in the matter of colour.  After the evidence was closed, learned counsel for the defendant began his address by referring to the claim, and drew attention to the writ of summons and the description of the land over which title was sought as being edged pink; whereupon counsel for the plaintiffs asked leave to amend the writ to read in paragraph (a) blue instead; and the Judge adjourned for a week to let him bring a full application for any amendment he wished to make. The application brought was to amend the writ of summons so that the claim should be for a declaration to the land verged in blue, and for an injunction in regard to the land verged pink: pink was, on Exhibit A, the plaintiffs new plan put in at the outset of the trial, what the defendant claimed as his own over and above what the plaintiffs conceded-which was shown in green. In addition the application asked for amendment of the Statement of Claim on similar lines.

At the hearing of the application, counsel for the defendant argued that the amendment should not be allowed on the ground that it was embarrassing to the defence, which was conducted on the basis of the averment in the Defence; that the plaintiffs had made a mistake in not amending their pleadings before the close of their case, and it was too late to ask for leave to amend after the evidence for both sides had closed.