Mrs. C. I. Adetutu & Ors. V. Mrs. W.o. Aderohunmu & Ors (1984)

LawGlobal-Hub Lead Judgment Report

BELLO, J.S.C.

The appellant was the defendant in the High Court of Lagos State holden at Ikeja wherein judgment was entered for the plaintiffs, now respondents, against the defendant for the sum of N500 being general damages for trespass committed by the defendant on the parcel of land situate and being at Onipetesi Agege in the Ikeja district known as plots Nos. 29 and 30 in Block B in plaintiffs’ approved layout No. TPAO 352 and an injunction restraining the defendant by herself, her servant or agents or otherwise howsoever from remaining on or continuing in occupation of the said parcel of land, hereinafter referred to as the land in dispute.

Not satisfied with that decision, the defendant appealed to the Court of Appeal which dismissed her appeal and affirmed the judgment of the High Court. The defendant has further appealed to this Court.

From the pleadings of the parties when the case went on trial in the High Court, it was not in dispute that the plaintiffs had inherited the land in dispute which forms part of a large parcel of land from their deceased uncle, Ebenezer Adeniran Sule, in 1950; that the plaintiffs caused the said large parcel of land to be laid out into plots which layout was approved by the Ikeja Town Planning Authority as No. TPAO 352 and that the defendant had been the tenant of the plaintiffs in respect of plots 4 and 5 in Block C of the said layouts which two plots were subsequently acquired by the Federal Government for road construction.

It appears the acquisition of plots 4 and 5 precipitated the dispute. The plaintiffs averred in paras. 8, 9, 10 and 11 of the statement of 5 claim as follows:

“8. The plaintiff (sic) will aver that the defendant on learning of the said acquisition wrongfully and unilaterally jumped unto the land now in dispute in the purported exchange for the land falling within acquisition as stated above.

9. The plaintiff (sic) plead further that in spite of protests, the defendant on or about the 25th day of October, 1975 wrongfully entered the land in dispute and proceeded to erect a wall fence thereon and notwithstanding repeated requests by the plaintiffs and by the plaintiffs’ solicitor to vacate and deliver up possession the defendant has wrongfully failed or refused to do so.
10. The plaintiffs will rely at the trial on various letters of warning sent by their solicitor, Mr. Smart Omodunbi to the defendant and in particular the letters dated the 23rd day of October 1975 and 22nd January 1976.
11. The plaintiffs will contend at the trial that the defendant has no title or interest whatever in the land in dispute and that notwithstanding warnings she has recklessly continued and persisted in her acts of trespass.”

The gist of the defence on which the parties joined issue at the commencement of the trial was that the defendant had become a tenant of the plaintiffs in respect of the land in dispute in her capacity as the executrix of her late husband, Mubinu Akinola Falola, who had acquired a lease for 99 years over the land in dispute. Paragraphs 5,6, 7, 8 and 9 of the defence are germane to the issue:

“5. The defendant categorically denies paragraphs 8, 9, 10 and 11 of the statement of claim and puts the plaintiffs to the strictest proof thereof.

6. The defendant avers that on the 6th day of July, 1973, by the proof of probate of the last will and testament of MUBINU AKINOLA FALOLA, late of 17/1 Federal Road, Railway Compound, Ebute-Metta (deceased), who died on the 2nd day of December, 1972 at the University Teaching Hospital; the administration of all the estate which by law devolves to and vest (sic) in the personal representatives of the said deceased was granted to SERIOLA TAIWO and CHRISTIANA IYABO ALLEN of 25, Oroku Road, Ebute-Metta (otherwise known) as Mrs. C. I. Adetutu and the defendant herein as the EXECUTRICES.
7. The said probate is annexed hereunder and marked ANNEXURE A
8. The defendant further avers that the said plots 29 and 30 in Block B referred to in paragraph 3 of the statement of claim, were leased out to the late Mubinu Akinola Faiola in 1965 and (sic) tenant thereof for a term of 99 years as witness by a memorandum reference NO.AOA/9/66 and dated 4th day of February 1965 from J. A. Sule to M. A. Faiola annexed hereunder and marked ANNEXURE A1.
9. And the said Mr. Mubinu Akinola Faiola (deceased) duly paid his requisite annual rents in respect thereto for the years 1965, 1966, 1967, 1968, 1969, 1970, 1971, 1972, 1973 and 1974 respectively as shown by the plaintiffs’ family estate receipts No. 32/71 dated 29/9/71 and No.42/73 and dated 19/11/73 annexed hereunder or and marked ANNEXURE B & C.”

It was further averred that after the defendant had taken possession of the land in dispute she purchased the freehold reversion over the land in dispute from the 1st plaintiff and paid N3,000 to the latter but the amount was subsequently refunded to her by the 1st plaintiff.

In the course of the hearing in the trial court after the plaintiffs had led evidence and closed their case and the defendant had completed her evidence in-chief and was being cross-examined, the defendant applied for an order under Order 25 rule 1 of the High Court of Lagos State Civil Procedure Rules to amend the statement of defence. The proposed amended statement of defence consisted of 46 paragraphs of which paragraphs 16, 17, 18, 19, 20, 30 and 31 are pertinent to the 40 issue canvassed at the hearing of the appeal before us. The paragraphs read:

16. The defendant avers that she is the owner in possession of Plots 29B and 30B in Block B on Layout No. TPAO 352 under and by virtue of gift intervivos to her by the lessee of the said plots. (Sic) Late M. A. Faiola by his 45 memo dated the 16th day of June 1972 annexed hereunder and marked ANNEXURES E.
17. That by similar memoranda he donated much of his property to persons and organisations during his life time.

18.The defendant avers that she is defending this action in her own right as the owner of the said plots 29B and 30B.

19. The defendant denies that she is a trespasser as alleged in the statement of claim and states that she is a bonafide owner of the said plots 29B and 30B by virtue of the hereinbefore mentioned gift.
20. The defendant states that the late Mr. M. A. Faiola gave out some of his property in his life time, the property now in dispute was given out in like manner.
21. The defendant states that the plaintiffs are estopped from repudiating any transaction, acts or omission on the said land by their agent Mr. J. A. Sule.
22. The defendant states that the plaintiffs by their conduct lapse of time and or inactivity are estopped from denying the right and title of the defendant to the said plots 29B and 30B.”

10 In refusing to grant the amendment, Beckley, J. observed as follows:

“I wish to observe that this application has been brought to court after the plaintiffs had led evidence and closed their case. Secondly a perusal of the proposed amended statement of defence shows introduction of new matters which to my mind will put the plaintiffs case completely out of gear, if allowed.

The general rule is that the court will always allow amendment to enable matters in controversy between the parties to be completely adjudicated upon, and the issues between them settled once and for all. This rule however, is subject to consideration of the facts of each particular case. Amendment which will act prejudicially to the other side should not be granted, especially where a court is of the view that the other side cannot be compensated for the award of costs. I have also taken into consideration, from the affidavits sworn to in this matter, as well as from the evidence already led, that the facts upon which the proposed amendments are now being based were known to the defendant a long time ago. Amendment to change the nature of the case before the court will generally not be granted.

Certain documents which evidently have been in existence a long time ago will now be allowed to be put in evidence, if the amendment is granted. Paragraph 30 of the proposed amended statement of defence is now introducing the principle of estoppel which was not originally in the first statement of defence.”

The appeal in the main was canvassed, as had been the case in the Court of Appeal, on the question as to whether the learned trial judge had erred in law in refusing leave to amend the statement of defence and, if he had so erred, whether such error had occasioned miscarriage of justice.

The decision of the trial judge on the merits is impeccable. Although in his brief learned counsel for the appellant had complained against the affirmation of the decision on the merits by the Court of Appeal, he appeared to have changed his stance during his oral argument before us. He had nothing to say on the merits. The fact that the respondents are the owner of the land in dispute was admitted. The only questions in issue at the trial were whether the late Mubinu Akinola Falola had acquired a lease for 99 years over the land in dispute from one JA Sule, a former care-taker of the said land and, secondly whether the appellant as the 45 executrix of M. A. Falola purchased the freehold reversion from the 1st respondent.

After having considered meticulously the evidence adduced by the parties and the argument of counsel, the learned trial judge accepted the plaintiffs’ case and rejected the defence. He found that the late M. A. Falola had never acquired any 50 lease in respect of the land in dispute and the defendant had not purchased any freehold reversion in respect of the said land. He accordingly entered judgment for the plaintiffs. In his lead judgment in the Court of Appeal (with which Nnaemeka-Agu and Mohammed JJ.C.A. concurred) Coker J.CA painstakingly examined the evidence and concluded that the documentary evidence relied upon by the defendant had not supported her defence. He affirmed the findings of facts made by the trial judge. Learned counsel for the appellant had not made a proper case, in my view, upon which this Court may interfere with the concurrent findings of facts by the trial Court and the Court of Appeal.

In his consideration of the ground of appeal relating to the refusal by the trial judge to allow the amendment of the statement of defence, Coker J.CA stated thus:

“Now the argument of Mr. Sofola was that the learned trial judge was in error in refusing the proposed amendment. His contention is that the refusal of the trial court to grant the proposed amendment precluded or prevented the defence from calling other witnesses which could have helped in establishing the defence. I cannot subscribe to this view. Whether the defendant was on the land in her personal capacity as a donee inter vivos from Falola or whether she was there as an executrix, in my view is immaterial and makes no difference to the defence. If Falola was granted the plots by the plaintiffs or their agent, the defendant’s possession cannot be wrongful either as donee or as executrix of Falola’s will. It would make no difference to the defence, pleaded in paragraph 8 of the original statement of defence, which is the same as in paragraph 8 proposed amended statement of defence.”

He concluded that had the amendment been granted it could not have affected the case for the appellant in any event. He observed as follows:

“While I am in agreement that there was nothing in the proposed amendment of any relevant likely to affect the fortune of the defence, I am in entire agreement that the amendment sought was rightly refused that even if the learned trial judge wrongly refused the application the defendant could not on the evidence and the admitted facts have been prejudiced in her defence. It was in my view an unnecessary amendment.”

In his brief and oral argument before us, learned counsel for the appellant submitted that the learned trial judge had erred in law in holding that an amendment which will act prejudicially to the other side should not be granted and in refusing to grant the amendment because the plaintiffs had closed their case and the trial judge thought the amendment introduced new matters which would put the plaintiffs’ case completely out of gear, if allowed. Learned counsel contended that every amendment must somehow be prejudicial to the other side because an amendment cannot be asked by one side in other to favour the other. Relying on Dominon Flour Mill Ltd. v. George (1960) L.L.R.53, Foko & Ors. v. Foko & Ors. (1968) 40 N.M.L.R. 441 and Solanke v. Somefun & Anr. (1974) 1 S.C. 141, he stated that the correct rule is that an amendment may be refused if it will unfairly prejudice that other party or if it will change the nature of the claim but, nevertheless, it is within the power of the court to grant an amendment even if the amendment would add to the existing cause of action or to substitute therefore a new cause of action provided that the additional or the new cause of action arises out of the same or substantially the same facts as are contained in the pleadings.

Learned counsel went on to say the fact that the plaintiffs had closed their case was not a sufficient reason for disallowing the amendment because the amendment would not unfairly have prejudiced the plaintiffs. He said the amendment did not introduce any new matter but only state in a neat form the legal consequences of the facts which were alleged in the original statement of defence for which there was support in the evidence of the defendant and in the documents tendered. Furthermore, the original statement of defence had set up among others the defences of laches, acquiescence, stale claim and long possession. According to learned counsel the “battle” line had been well drawn on the pleadings. The amendment sought was only to trim off the unclear edges and bring into bolder relief and clear focus and line which had been drawn. Had it been granted it would have allowed the defendant to tender other evidence in support of her case including that of J.A. Sule. By refusing the amendment the trial judge prevented the defendant from tendering all the evidence that she intended to tender and thereby occasioned substantial injustice to the defendant.

In his brief learned counsel for the respondents replied that the learned trial judge had rightly exercised his discretion in refusing the amendment and that we should not interfere with the exercise of such discretion unless we are satisfied that the trial judge applied a wrong principle of law as in Donald Campbell & Co Ltd, v. Pollak (1927) A.C. 732 or that he took into account irrelevant matters as in Egerton v. Jones (1939) 3 All E.L.R. 892.

He contended that the trial court could not be said to have exercised its discretion improperly on the facts of this case especially after the close of the plaintiffs’ case and with the introduction of a new matter in the amendment which appeared to have changed the nature of the defendant’s case. He relied on Foko & Ors. v. Foko & Ors. (Supra) Newby v. Sharpe (1878) 8 Ch.D 39 and Tildesley v. Harper (1878) 10 Ch. D. 393. Learned counsel further contended that the amendment was a surreptitious attempt to re-instate paragraph 30A of the original statement of defence which had been struck out and subsequent application for its re-instatement had been refused.

I entirely agree with the view expressed by the Court of Appeal that, except paragraphs 30 and 31 of the amendment which I shall consider later, the amendment was unnecessary and was a useless exercise. In both the original statement of defence and the amendment the defendant claimed her right to the land in dispute through M.A. Falola whom she averred had acquired a lease from J. A. Sule, the plaintiffs’ care-taker. In the original defence she claimed her right to possess as the executrix of M.A. Falola while in the amendment she claimed as a donee inter vivos from him.

It follows therefore that M.A. Falola being her root of title whether as an executrix or a donee, to succeed in her defence in either capacity, she must first prove the alleged 99 year lease of M.A. Falola. In either case J.A. Sule is an essential witness for the defence. Having failed to call him as a witness, the defendant cannot attribute her failure to do so to the refusal of the amendment. Furthermore all the documents relating to the alleged donation of the leasehold to her which the defendant stated she would have tendered if the amendment had been allowed are irrelevant for the determination of the alleged 99 years lease of M.A. Falola which was the crucial issue in the case in any event.

That being the case, I am unable to agree with the submission of learned counsel for the appellant that the refusal of the amendment had occasioned miscarriage of justice by preventing the appellant to call J.A. Sule and to tender the documents proving the gift to her.

I shall now deal with the plea of estoppel in the amendment. Paragraph 30 of the original statement of defence reads:

30. Further and in the alternative the defendant will at trial rely on the following:-

(A) Legal and equitable defence namely:-

(1) Laches

(2) Acquiescence

(3) State Claim

(4) Limitation Decree and Edict of Lagos State.

(5) Long Possession.

(6) Estoppel by conduct

(7) Standing – Bye (sic).”

Upon the application of the plaintiffs’ counsel on 4th July, 1977 before the trial commenced, the trial court ordered the defendant to file and serve particulars of the averments in paragraph 30A above within 21 days of the date of the order and that failure to do so would render the paragraph to be struck out. The defendant failed to comply with the order and paragraph 30A was deemed to have been struck out. During the trial, after the plaintiffs had closed their case, the defendant appealed to have paragraphs 30A re-instated and in a considered ruling delivered on 2nd February 1978 the trial court dismissal the application. It was after the defendant had failed to have paragraph 30 re-instated that the application to amend the defence was filed. I have earlier set out the averments in paragraphs 30 and 31 of the amended defence which appear, in my view, to be a mere amplification of the original paragraph 30A which had been struck out and its re- instatement refused. I am in full agreement with Mr. Molajo, learned counsel for the respondent, that the application for amendment in so far as paragraphs 30 and 31 were concerned was a surreptitious attempt to re-instate the defunct paragraph 30A. Under the circumstances the learned trial judge should have dismissed the application in this respect on the simple ground that it was an abuse of the process of the court.

However, the trial judge examined the matter from the angle of a new dimension in the defence. He considered the amendment as having introduced new matters which would put the plaintiffs, case completely out of gear. I thing the learned judge was right in that consideration. It is note worthy that when the case went on trial and up to the time the plaintiffs closed their case, the parties did not join issue on estoppel, to introduce estoppel at that stage of the proceedings would be tantamount to raising new issues.

This would certainly have unfairly prejudiced the plaintiffs who would have no opportunity to file a reply and adduce evidence in rebuttal. In the circumstances raising new issues would cause injustice to the plaintiffs.

The principle for the guidance of a court in exercise of its discretinary power to allow or refuse an amendment of pleading has been stated by this Court in several cases. The principle may be reiterated. Generally an amendment of pleading for the purposes of determining the real question in controversy between the parties ought to be allowed at any stage of the proceedings unless such amendment will entail injustice or surprise of embarrassment to the other party or the applicant is acting mala fide or by his blunder the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise. In other word, the discretion ought to be exercised so as to do what justice and fair play may require in the particular case. See Oguntimeyin v. Gubere & Anr. (1964) 1 All N.L.R. 176, 40 Amadi v. Thomas Aplin Ltd (1972) 1 All. N.L.R. 409, Chief Ojah & Ors. v. Chief Ogboni & Ors (1976) 4 S.C. 69 Chief Okafor v. Ikeanyi & Ors. (1979) 3 & 4 S.C. 99 and Ibanga & Ors. v. Chief Usanga (1982) 5 S.C. 103.

On the premises this was not a proper case to grant the amendment which raised new issues. I have already shown that granting such amendment would cause injustice to the plaintiffs.

The appeal is accordingly dismissed. The decision of the Court of Appeal affirming the judgment of the trial Court if affirmed. N300 costs are assessed in favour of the Respondent.

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Other Citation: (1984) LCN/2220(SC)