Juliana Ibiyemi Akinbinu V. Yisa Eyifunmi Oseni & Anor. (1992)

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O. I. AKPATA, J.S.C. 

This appeal relates in the main to the right or otherwise of a person not a party in a case to appeal against an order of a trial court allowing one of the parties to amend his or her pleading. Incidental to it is the competence, or lack of it, of the Court of Appeal to pronounce on the role of the trial Court in granting the amendment when it (the Court of Appeal) had held that the appellant was not competent to appeal against the order.

The plaintiff, Yisa Oseni claimed from the defendant, Juliana Akinbinu, the sum of N140,000.00 being money payable by her to him as per a loan agreement dated 25th November, 1977. It was the contention of the defendant in her statement of defence that the said loan agreement prepared by one Mr. Akin Ojo, a solicitor, was obtained by fraud. She went on to state that Mr. Ojo brought two deeds of conveyance along with the said loan agreement, and explained to her, an illiterate, that the said loan agreement “was the same document as the aforesaid deeds”.

At the hearing of the action before Balogun, J., the solicitor was called as a witness by the plaintiff, apparently to refute the allegation of fraud in the preparation and execution of the loan agreement. As PW.3, the solicitor testified to the effect the he prepared the loan agreement on the instruction of the defendant and that he delivered the agreement to her in her premises on 24th November, 1977. According to him the defendant read it over and expressed her satisfaction as to its contents.

The solicitor was subjected to rigorous cross-examination by the defendant’s counsel who suggested to him that he facilitated the fraud committed on her thus:

“The truth of the matter is that when you presented Exhibits D1 and D2 already executed by the Vendors with Exhibit P1 not yet executed to the defendant you explained to the defendant that Exhibits D1 and D2 (which were already executed by the Vendors) purport that the defendant had paid the total considerations of the purchase prices on the two conveyances amounting to N70,000.00 and that you said as she had not infact paid those purchase prices she had to execute Exhibit P1 which explained to her showed that she was owing the Vendor that sum of N70.000.00”

The learned trial judge interjected thus:

“The question is at variance with the case pleaded by the plaintiff and I think it is my duty to disallow the question even under cross-examination. I have in mind paragraph 5 (viii) and (ix) of the 2nd Amended S/D and filed on 11th December, 1984. Don’t you agree Mr. Sofunde.”

Learned counsel for the defendant then intimated the court that he would apply to amend his pleadings. The learned trial judge expressed his views thus:

“I think it will be necessary if you want to amend your pleading to bring a formal application and amend the pleading before putting the question in that form. It is important also to stress that in this case there is a counter-claim.”

The cross-examination continued. At a stage counsel for the plaintiff objected to a question suggesting that Mr. Ojo “secured the confidence of the defendant by playing on the fact that both of you come from the same state”. On the court indicating that the question was relevant to serious allegation made in paragraph 5 of the statement of defence and counter-claim against the witness, and requesting counsel to read out paragraph 5 (xi), counsel withdrew his objection. Learned trial judge however got the court registrar to read out the relevant paragraph of the statement of defence.

The court then asked the witness to answer the question put to him by counsel for the defence, that is, “you secured the confidence of the defendant by playing on the fact that both of you come from the same state”. To this question the witness answered:

“I am not feeling well and I am no able to read document. I have been standing all day. I have benefitted by the reading done by the Registrar if you allow me to come back another day, I will read”.

Both counsel indicated that they were in favour of the court granting an adjournment.