Taiwo & Ors V. Lawani & Ors (1975)

LawGlobal-Hub Lead Judgment Report

ELIAS, CJN.

In consolidated Suit Nos. IK/174/63 and IK/204/63, the plaintiffs claimed from the defendants jointly and severally the sum of £500 as damages for trespass to their land at Abule Ijeshatedo, Itire, Ikeja District, and an injunction restraining the defendants and such of them by themselves, their agents or servants, or otherwise from further trespassing on the said land. On November 11, 1972, Kazeem, J., at the Ikeja High Court, dismissed the plaintiffs’ claim and ordered, inter alia, a forfeiture of their holding to the defendants to who they should also give up possession.

From this judgment the present appeal has been brought on a number of grounds.

At the hearing of the appeal yesterday, learned counsel for the appellants brought a motion seeking an order to amend “(1) the Grounds of Appeal appearing at page 122 of the Records of Appeal by substituting therefore the Grounds of Appeal contained in the First Schedule to this Notice of Motion; and (2) the Statement of Defence filed in Suit No. IK/204/63 by adding paragraph 5A thereto as in the SECOND SCHEDULE hereto, and for such further or other Orders as this Honourable Court may deem it fit to make in the circumstances.”

The Second Schedule reads as follows: “5A With further reference to paragraph 5 of the amended Statement of Claim, the defendant will contend at the trial of this action that the acts complained of in paragraph 4 of the said Amended Statement of Claim, even if they were committed by the defendants, do not warrant forfeiture, in the alternative, if the said acts were held to warrant forfeiture, the defendants would pray the court to grant them relief against forfeiture on such terms as the court may seem fit.”

Learned counsel for the respondents raised no objection to the first arm of the prayer which seeks leave to file and argue the additional grounds of appeal, but objected to the second arm seeking leave to amend the Statement of Defence in the court below. It seems to us that on grounds both of convenience and of the exceptional nature of the request, the prayer for leave to amend the Statement of Defence should be argued first and separately from the permitted grounds of appeal. In support of his motion for leave to amend as prayed, Chief Awolowo, learned counsel for the appellants, submitted that there are three principles that should guide a court in granting such an unusual application.

These are (a) that forfeiture necessarily raises an issue of relief, whether specifically pleaded or not, (b) that, in order that the amendment being sought should be granted, it is not necessary to adduce any fresh evidence since all the essential facts are before the court, and (c) that to grant the amendment sought would not work injustice to either party. He referred to Section 22 of the Supreme Court Act, 1960 and the English Rules in Order 59, r. 10(4) (See White Book, 1973) as authorities for the proposition that we have the power to grant his request; he also prayed in aid the judgments in England v.Palmer 14 WACA 659, 660 and 661; Oloto v. Attorney-General (1957) 2 FSC 74, 86; Benson v. Ashiru (1967) NMLR 363, 364 and 366; and Bell v. Lever Bros. (1932) AC 161, at 216.

Mr. Larder, learned counsel for the respondents, replied briefly that forfeiture raises the issue of relief only where it has been specially pleaded and not otherwise, that if the amendment now being sought were to be permitted, he would have to give fresh evidence and call other witnesses, and that the proposed amendment gives no particulars as to the grounds of the relief sought. He pointed out that it was only during the course of the address of the respondents’ counsel that the issue of relief from forfeiture was raised for the first time.

PAGE| 3 We think that this is not a case in which we feel called upon, under Section 22 of the Supreme Court Act, 1960 or any of the cases cited to us, to grant the prayer for an amendment of the Statement of Defence.

We shall give detailed reasons why the present application is refused when we come to write our judgment in the appeal itself.

Other Citation: (1975) LCN/2110(SC)