AJAYI & ORS v. FASEEMO & ORS (2022)

AJAYI & ORS v. FASEEMO & ORS

(2022)LCN/16133(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Monday, June 06, 2022

CA/EK/69/2021

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Abdul-Azeez Waziri Justice of the Court of Appeal

Between

1. HON. DEBO AJAYI 2. TAF EQUITY LIMITED 3. JOSEPH FASEEMO 4. GBOYEGA FASEEMO 5. FELIX OJO FASEEMO 6. CHIEF BABATUNDE IBIRONKE APPELANT(S)

And

1. GABRIEL IDOWU FASEEMO 2. SOLOMON EKUNDAYO FASEEMO 3. EMMANUEL FASEEMO (Suing For Themselves And On Behalf Of Faseemo Olotin Family) RESPONDENT(S)

RATIO

THE PURPOSE OF AMENDMENT OF PLEADINGS

I wish to state that the law is settled that generally an amendment of pleading for the purpose of determining the real question in controversy between the parties ought to be allowed at any stage of the proceedings see the cases of BANK OF BARODA VS. IYALABANI (2002) 13 NWLR (PT. 785) 551 at 593; OKOLI VS. AJOSE (1944) 8 NWLR PT. 300 at 312.
An amendment will not be allowed if it will entail injustice to the other party. The refusal of the Court to grant an amendment in a particular case depends on its own special circumstances which will govern the discretion of the Court. It is therefore not possible to set out an exhaustive list of circumstance in which leave to amend will be disallowed.
The circumstances under which the Court may refuse leave for amendment are as follows: –
1. Where the amendment would necessitate the hearing of further evidence.
2. Where it would entail introducing allegation of fraud or defence of justification.
3. Where it could not cure the defects in the procedure sought to be cured or where it is inconsistent and useless.
4. Where it would completely present a different case or cause injustice to the other party or where application for amendment is brought malafide. See the case of CHIEF ADEKEYE VS. CHIEF AKIN–OLUGBADE (1987) 3 NWLR (PT. 60) 214.
On the principles and circumstances where an amendment may be allowed:
(a) The Court must consider the materiality of the amendment sought and will not allow an inconsistent or useless amendment.
(b) Where the amendment would enable the Court to decide the real matter in controversy and without injustice.
(c) Where the amendment relate to a mere misnomer it will be granted almost as a matter of course.
(d) The Court will not grant an amendment to change the nature of the claim before the Court.
(e) The Court will not grant an amendment where it will create a suit where none existed.
(f) Leave to amend will not be granted if it would not cure the defect in the proceeding.
(g) An amendment would be allowed if it would prevent injustice to the other party or which would violate the rule of “audi alteram partem” will not be allowed. The rule will be infringed if an amendment is introduced at such a stage that the other side no longer have the opportunity of adducing his own answer to the point which the amendment has enabled the applicant to introduce. PER WAZIRI, J.C.A.

THE BURDEN OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND

I wish to state the burden or onus is always undoubtedly on the Claimants to show clearly the area of land to which their claim relates. See ONWUKA VS. EDIALA (1989) 1 NWLR (PT. 96) 182; – UDEZE VS. CHIDEBE (1990) 1 NWLR (PT. 125) 141; – MAKANJUOLA VS. BALOGUN (1989) 3 NWLR (PT. 108) 192, where there is a counter-claim filed by the Defendant the onus is on him too to prove with precision and certainty and without inconsistency the identity of the land to which his claim or counter-claim relates. PER WAZIRI, J.C.A.

THE POSITION OF LAW WHERE A CLAIMANT FAILS TO PROVE THEIR TOTLE OF OWNERSHIP TO A LAND IN DISPUTE

Generally, it is on the Claimants seeking a decree of declaration of title that the onus of proof usually rests. See the case of ONOBRUCHERE VS. ESEGINE (1986) 1 NWLR (PT. 19) 799, where the Claimants fail to prove their title to the land in dispute they are not entitled to judgment. See OYEYIOLA VS. ADEOTI (1973) NWLR 10. Where evidence of title is not satisfactory and conclusive, a party will not succeed at trial. In essence, the burden is on the Claimants seeking a declaration of title to land to adduce credible, convincing and unequivocal evidence in support of their case.
The rule which is now trite and enjoys a plethora of judicial endorsement is that the Claimant(s) must succeed only on the strength of their case and not on the weakness of the defence. See the case of – BALOGUN VS. AKANJI (1988) 2 SCNJ 104, (1988) 1 NWLR (PFJO) 301; – KAIYAOJA VS. EGUNLA (1974) 12 SC 55, 61.
The only exception to the general rule that the Claimant(s) must succeed on the strength of their case is where the defendant pleads or calls evidence which supports the case of the Claimant(s). Consequently, where the exception, amounts to an admission by the defendant(s) it only adds to the weight of the claimant(s) case on the imaginary scale of justice but not that they automatically succeed. So it is not really or truly an exception because being a declaratory relief – the claimant(s) still have to prove their case by evidence to get judgment. PER WAZIRI, J.C.A.

WHETHER OR NOT A SALE OF FAMILY LAND BY THE HEAD OF THE FAMILY WITHOUT THE CONSENT OF THE FAMILY IS VALID

ABDUL-AZEEZ WAZIRI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ekiti State High Court delivered on the 16th day of November, 2018. The Respondents herein were the Claimants while the Appellants were the Defendants. The Respondents, commenced this action at the trial Court vide a writ of Summons filed on the 15th day of December 2014, being accompanied with a statement of claim wherein at paragraph 41 thereof, the Respondents herein as claimants claimed the following reliefs against the Appellants/Defendants
1. A DECLARATION that the farmland situate lying and being to Alapoto farm area of Emure Ekiti belongs to Faseemo Olotin family.
2. A DECLARATION that Hon. Debo Ajayi, TAF Equity Ltd, Chief Albert Ibironke, Faseemo Joseph, Faseemo Gboyega and Faseemo Felix Ojo are trespassers that 3rd, 4th, 5th and 6th defendants have no right to sell or lease the Alapoto farmland to TAF Equity Ltd.
3. A DECLARATION that the purported sale or lease of the Alapoto farmland in Emure-Ekiti to TAF Equity Ltd by Chief Albert Ibironke (3rd Defendant) Faseemo Joseph (4th defendant) Faseemo Gboyega (5th defendant) and Faseemo Felix Ojo (6th defendant) is illegal, null and void.
4. AN ORDER of payment of N5,000.000.00 (Five Million Naira) as damages jointly and individually by the defendants to the claimants for the purported sales or lease of the land to TAF Equity Ltd. And for the survey of the land by Hon. Debo Ajayi and TAF Equity Ltd.
5. AN ORDER of perpetual injunction restraining the defendants or their agents, privies, successors in title or anybody acting on their behalf from committing further acts of trespass on the claimants’ farmland at Alapoto Emure-Ekiti.

In response to the originating processes, the 1st-6th defendants by leave of the lower Court filled their statement of defence which was later on amended to which the claimants filed a reply to the amended statement of defence. Thus, issues were joined by the parties which led to a full blown trial where the Claimants now Respondents, adduced both oral and documentary evidence by calling five witnesses and tendered seven Exhibits out of which one was rejected. On the part of the defendants now Appellants they called oral and documentary evidence with five witnesses and tendered 12 Exhibits.

Learned Counsel to the parties filed, exchanged and adopted their final written addresses and in a considered judgment the claimants/Respondents’ reliefs were granted by the lower Court wherein the learned lower Judge stated “having considered all the evidence and materials placed before the Court I am convinced that from the circumstances of this case the claimants are entitled to the reliefs sought. The sole issue for determination is therefore resolved in favour of the Claimants as against the defendants’’ See pg 638 of the record of Appeal and Pg27 of the judgment. Perturbed by the judgment of the lower Court at pages 611-639 of the record of appeal, the Appellants lodged an Appeal via Notice of Appeal at pages 643-655 of the record of appeal consisting of twelve (12) grounds of appeal shorn of their particulars. The record of appeal was compiled and transmitted to this Hon. Court on the 23/8/2021.

The Appellants’ brief of argument was duly settled by Owoseni Ajayi Esq. on the 1st day of September, 2021 wherein he crafted five issues out of the 12 grounds of Appeal. The issues are:
1. Whether or not the Court below properly exercised its discretion when it dismissed the Appellants application filed on the 25/9/2017 seeking for the amendment of their pleading? (Ground 1).
2. Whether or not the Respondents proved the identity of the disputed land as to entitle them to judgment at the lower Court? (Grounds 2 and 7)
3. Whether or not the Respondents discharged the burden of proof as to entitle them to declaration of title to land and the consequential reliefs granted to them by the lower Court? (Grounds 3, 5, 8, 9, 10, 12).
4. Whether or not the disputed property is the joint property of Elemo Famutimi and Fasemo Olotin which remained unpartitioned? (Ground 4 and 6)
5. Whether or not the lower Court was right when it annulled the sale of the disputed land to the 2nd Appellant? (Ground 11)

The Respondents’ Counsel in the brief settled by Ebenezer Gbenga Alabadan, Esq. filed on 12th November, 2021 crafted five issues for the determination of the appeal. These issues read thus:
1. Whether or not the Court below properly exercised its discretion when it dismissed the Appellants’ application filed on the 25/9/2017 seeking for the amendment of their pleading?

(Ground 1).
2. Whether or not the Respondents proved the identity of the disputed land as to entitle them to judgment at the lower Court? (grounds 2 and 7)
3. Whether or not the Respondent discharged the burden of proof as to entitle them to declaration of title to land and the consequential reliefs granted to them by the lower Court? (Grounds 3, 5, 8, 9, 10, 12).
4. Whether or not the disputed property is the joint property of Elemo Famutimi and Fasemo Olotin which remained unpartitioned? (ground 4 and 6)
5. Whether or not the lower Court was right when it annulled the sale of the disputed land to the 2nd Appellant? (Ground 11)
(I will adopt the Appellants’ issues as my guide for the determination of this appeal for the simple reason that they own the appeal and that the Respondents repeated verbatim the same issues).

ARGUMENTS ON ISSUE ONE
Appellants submitted that it filed an application on the 25th day of September, 2017 wherein it sought the leave of the trial Court to further amend their Amended Statement of Defence, as the said amendment was for it to plead the record of previous proceedings before Hon. Justice Ogundana for the purpose of cross-examining the Respondents’ witnesses, at which time, the Respondents had called two witnesses. The said application was heard on the 10th October, 2017 and the learned trial Judge dismissed the application on the ground that the Appellants cannot rely on previous proceedings in this suit.

Counsel submitted that the power to grant or refuse an application for amendment is discretionary, however, the Court is joined to exercise its discretion judicially and judiciously. Counsel cited JAMES OGUNTIMEYIN V. GUBERE (1964) 1 ALL NLR 176 AT 179-180 and LOURFI V. C. CZARNIKOW LTD (1952) 2 ALL E.R. 823, OGIDI & ORS. V. EGBA & ORS. (1999) LPELR 2302 (SC). 51-52, PARAS. G.C. Counsel further cited the case of ADETUTU V. ADEROHUNMU & ORS (1984)15 NSCC 389 AT 396 wherein in the case of BANK OF BARODA V. IYALABANI COMPANY LIMITED (2002) LPELR 743 (SC) was cited. Counsel itemized the considerations that guide Courts in granting applications for the amendment of pleadings citing the case of OZIGBO V. THE REGISTERED TRUSTEES OF EZI–OBANIRU SOCIAL CLUB OF NIGERIA (2008) LPELR-8542(CA), wherein the Court also laid down circumstances wherein the Court will refuse an amendment, same itemized by counsel.

Counsel further submitted that the learned trial Judge was wrong in refusing the Appellants’ application for amendment on the sole ground that the previous record of proceedings which the Appellants sought to plead is irrelevant to the proceedings, by so doing the trial Judge jettisoned the well-established principles of law relating to grant or refusal of leave for an amendment and wrongly applied unrelated principles of law in rejecting the Appellants applications. Counsel conceded that evidence of a witness in earlier proceedings is not relevant in a later proceedings, however, such testimony can be used in the later trial for the purpose of cross-examination. Counsel referred to the cases of ALAKIJA & ORS V. ABDULAI (1998) LPELR 404 (SC), ARIKU V. AJIWOGBO (1962) 2 SCNLR 360, (1962) 1 ALL NLR (PT. 4) 629; FADIORA AND ANOR V. GBADEBO AND ANOR. (1978) NSCC 121 AT 129 and IYKE COLLINS INVESTMENT LTD V. FIRST ATLANTIC BANK (2019) LPELR-47589(CA) wherein this Court gave vent to the fact that the evidence in the abortive trial could be used as previous statements to cross-examine the witness that gave it for the purpose of discrediting or contradicting the witness if the witness seriously deviated from the earlier testimony.

Counsel argued that the decision of the Court below is not only unjustifiable, same is perverse. Counsel cited the case of Missr. V. Ibrahim (1975) 5 S.C. 55

In aid of what constitutes a preserve decision, therefore, having seen that the decision of the lower Court is perverse, counsel stated this Court is imbued with the power to set the decision aside. Counsel further cited the case KUBURI INTL TRADING CO. LTD & ANOR V. MUSTI & ANOR (2018) LPELR-44004 (CA) PAGES 57-58, PARAS. B-C.

In response to this issue, Respondents submitted that the learned trial Judge rightly dismissed the application to further amend the amended statement of defence on the ground, inter alia, that the Appellants could not rely on the previous proceedings before Honourable Justice L.O. Ogundana in a trial de novo before Honourable Justice A. Adesodun, the Appellants having failed to comply with the provisions of the relevant and applicable laws for doing so. Counsel further submitted that the Appellants’ application for amendment failed to attach the proposed document (i.e. previous proceedings before Honourable Justice L.O. Ogundana) to the said application for amendment as required by the Rules of the lower Court, the High Court of Ekiti State Civil procedure Rules. Counsel stated that the lower Court rightly dismissed the said application on the ground of non-compliance with the rules of Court which are meant to be obeyed, and not made for cosmetic purposes and cited the cases of IBRAHIM V. HABU (1993) 5 NWLR (PT. 295) 574 and WILLIAMS V. HOPE RISING(1982) 1-2 SC 145 AT 153. Counsel stated that what broke the camel’s back in respect of the Appellants’ application for amendment was as a result of the Appellants’ failure to comply with the necessary pre-conditions or condition precedent for placing reliance on previous proceedings in a trial de novo in a suit as mandatorily stipulated by the provisions of Section 39 and 46 of the Evidence Act, 2011. Counsel cited the case of EGHOBAMIEN V. FEDERAL MORTGAGE BANK OF NIGERIA (2002) FWLR (PT 121) 1858 SC. Counsel argued that the application for amendment under reference did not give any reason(s) in their affidavit in support of their application or in any other way on record as required by provisions of Section 39 and 46 of the Evidence Act, 2011 as to whether the three (3) witnesses, i.e Gabriel Idowu Faseemo, Solomon Ekundayo Faseemo and Josiah Orungbemi who previously gave evidence and cross-examined before Hon. Justice L.O. Ogundana were dead, could not be found, had become incapable of giving evidence, their attendance could not be procured without an amount of delay or expense. Under these circumstances, it appeared to the lower Court unreasonable or that the said witnesses were kept out of the way by the adverse party. Counsel submitted that the Appellants have not suffered any miscarriage of justice via the dismissal of their application for amendment as wrongly canvassed by the Appellants.

ARGUMENT ON ISSUE TWO
Appellants’ counsel submitted that the learned trial Judge’s decision was against the weight of evidence and cannot be justified in law and fact, as the Court below applied a wrong principle of law in reaching its decision. Counsel stated that duty on a claimant, i.e the Respondents in this appeal in an action of declaration of title to land where parties joined issues on the identity of the land, is to prove with exactness and exactitude the area of land over which they claim, therefore, where the defendant the Appellants herein asserts a different boundary from what is stated in the statement of claim, the identity of the land is said to be in issue. Counsel cited the cases of OKOCHI V. ANIMKWOI (2003) 18 NWLR (PT. 851) 1 AT 21 and UDEZE V. CHIDEBE (1990) 1 NWLR (PT. 125) 141. Counsel stated that where the claimant fails to lead satisfactory evidence of boundaries of the land in dispute which he claims, the action must fail. Counsel referred to the Supreme Court decision in the case of ABOYEJI V. MOMOH (1994) 4 NWLR (PT. 341)646 and also the case of NWOKIDU V. OKANU (2010) 3 NWLR (PT. 1181) 362 AT 391-392 PARAS H-6, AWOTE V. OWODUNNI (NO, 2) (1987) 2 NWLR PT. 108) 192 and ODICHE V. CHIBOGWU (1994) 7 NWLR (PT. 354) 70

Counsel submitted that this bounden duty can be discharged either by giving an oral description of the land sufficient to make it ascertainable or by filling a survey plan. Counsel referred to the cases of AIYEOLA V. PEDRO (2014) LPELR 22915 (SC), ADEREMI V. ADETORO (2007) 16 NWLR (PT. 1060) 244; (2007) 7 SC (PT. 11) 1, ODESANYA V. EWEDEMI (1962) 1 ALL NLR 320. Counsel argued that the Respondents did not file any survey Plan of the disputed land, therefore, it is incumbent on them to lead credible evidence as it relates to the identity of the disputed land, as this is more so that parties joined issues as to the identity of the land in dispute as can be gleaned from paragraph 6 of the statement of claim, of the amended statement of defence and paragraph 6 of the Claimant’s Reply to the Amended Statement of Defence, which the respondents failed in doing.

Counsel submitted that despite the great lacuna in the evidence led in the Respondents’ pleadings, the learned trial Judge held that the Respondents proved the identity of the disputed land. Counsel submitted further that the trial Court below failed to countenance the evidence of DW1 and DW2, who have farms on the disputed land on the ground that their evidence was based on what was relayed to them by their fathers, erred in law when he failed to countenance these testimonies, as it is indisputable that traditional history/evidence as well as testimonies received from the dead are some of the exceptions to the hearsay rule. Counsel cited the case of IDAHOSA V. IDAHOSA (2010) LPELR-9072 (CA) 15.

In response, counsel submitted that the Respondents have proven the identity of land in dispute through cogent, credible and convincing oral evidence as required by law. Counsel submitted that the law gave the respondents two available options or methods through which such a legal duty can be discharged, that is to say, either by giving oral description of the land sufficient to make it ascertained or by filling a survey plan. Counsel cited in aid the decision of the Supreme Court in the case of AIYEOLA V. PEDRO (2014) LPELR 22915 (SC). Counsel further argued that by the pieces of evidence given by the Respondent witnesses in line with the pleaded facts, the only reasonable conclusion or inference that could be drawn is that the Respondents have proven the identity of the land in dispute by giving oral description of the land in dispute sufficient to make it ascertainable to the extent that a surveyor can, from the record, produce an accurate plan of the land in dispute.

Counsel cited the cases of ADEREMI V. ADETORO (2007) 16 NWLR (PT. 1060) 244, (2007) 7 SC (PT. 11) 1, ODESANYA V. EWEDEMI (1962) 1 ALL NLR 320.

Counsel submitted that the boundary of the land in dispute as stated by the Respondents both in their pleadings and evidence are credible, as their account was based on traditional evidence/history, as historical accounts are passed down from mouth to mouth and therefore constitute an exception to the general hearsay rule under Section 39 of the Evidence Act, 2011. Counsel cited the case of MAMMAN & ORS V. KOFAR BAI (2015) LPELR 25966 CA PAGE 14. Counsel submitted that looking criticality at the pleadings and evidence led by the Appellants hinges their defence on joint ownership of the land in dispute by Faseemo Olotin and Famutimi Elemo families, although they tend to give a different boundary for the land in dispute. Counsel further submitted that the Respondents in the circumstances of this case have led credible evidence relating to the identity of the land in dispute. The traditional/evidence relied upon not difficult but straight forward and conclusive.

ARGUMENT ON ISSUE ONE
It is the submission of learned Appellants Counsel that the power to grant or refuse an application for amendment is discretionary but that the Court should exercise it judicially and judiciously citing the following case.

He submits that the learned trial Judge was wrong in refusing the Appellants’ application for amendment on the ground that previous record of proceedings which the Appellants sought in plead is irrelevant to the proceedings. He conceded that evidence of a witness in earlier proceedings is not relevant in a later proceeding but same can be used for the purpose of cross-examination citing the following cases. He submits that the decision of the trial Court was unjustifiable and perverse calling in aid the case of Misr vs. Ibrahim (1975) 5 SC, 55 KUBURI INT TRADING CO. LTD & ANOR VS. MUSTI & ANOR (2018) LPELR-44004 (CA) Pages 57-58 paras B-C.

In response to this issue learned counsel to the Respondents submitted that the trial Court was right to have refused granting the amendment sought for non-compliance with the rules of Court which are meant to be obeyed calling in aid the cases of IBRAHIM VS. HABU (1993) 5 NWLR (PT 295) 574: WILLIAMS VS. HOPE RISING (1982) 1-2 SC 145 AT 1531 EGHOBAMIEN VS. FEDERAL MORTGAGE BANK OF NIG. (2002) FWLR (PT.121) 1858 SC.

Submits that the affidavit of the Applicants did not give any reason(s) as required by Sections 39 and 46 of the Evidence Act 2011.

ARGUMENT ON ISSUE TWO
On the evaluation of evidence, Appellants counsel submitted the decision was against the weight of evidence. He submits that the identity of the land in dispute was not identified as the evidence of boundary of the land was not ascertained placing reliance in the following cases.
– OKOCHI VS. ANIMKWO (2003) 18 NWLR (PT. 851) 1 AT 1.
– UDEZE VS. CHIDEBE (1990) 1 NWLR (PT. 125) 141
– ABOYEJI VS. MOMOH (1994) 4 NWLR (PT 341) 646
– NWOKIDU VS. OKANU (2010) 3 NWLR (PT 1181) 362 AT 391-392 PARAS H-6
– AWOTE VS. OWODUNNI (NO 2) (1987) 2 NWLR (PT 108) 192
– ODICHE VS. CHIBOGWU (1994)7 NWLR (PT. 354) 70

He submits that the Respondents did not file any survey plan of the disputed land calling in and the following cases.
– AIYEOLA VS. PEDRO (2014) LPELR-22915 (SC)
– ADEREMI VS. ADETORO (2007) 7 SC (PT. 11)
– ODESANYA VS. EWEDEMI (1962) 1 ALL NLR 320.

In his response, Respondents’ counsel debunked this submission and contended that they had proven the identity of the land in dispute through cogent credible and convincing oral evidence as required by law.

He submits that the Respondents had two options either by giving oral description of the land sufficient to make it ascertainable or by filling a survey plan calling in and the Supreme Court case of AIYEOLA VS. PEDRO (Supra) ADEREMI VS. ADETORO (Supra) ODESANYA VS. EWEDEMI (1962) 1 ALL NLR 320
– MAMMAN & ORS VS. KOFORBAI (2015) LPELR-25966 CA page 14

ARGUMENT ON ISSUE THREE (3)
Learned counsel submits that there are five ways of proving title of land by a claimant citing the case of IDUNDUN VS. OKUNMAGBA (1976) 9-10 SC 27 OLOKUNLADE & ANOR VS. MR. SAMUEL & 2 ORS (2013) ALL FWLR (PT 669) 1150 AT 1165-1166 PARAS G-C
NWOKIDU & 3 ORS VS. OKANU & ANOR Suit No SC 1 125/2002

He submits that the onus is on the claimant citing the following cases.
– DUNTA (NIG) LTD VS. NWAKOBA & ORS (2009) ALL FWLR (PT. 461) 842
– ANYAFULU & ORS VS MEKA & ORS(2014) LPELR-22336 SC PG 30 PARAS A-C

He submitted that the Claimants/Respondents must prove who founded the land amongst others placing reliance on the cases of Bello & Ors vs. SANDA & ORS (2011) LPELR-3705 (CA) EJIKE VS. OBIEGBUNAM & ANOR (2016) LPELR 41540 (CA) OSSAI-UGBAH& ORS VS. AGOLO (2014) LPELR 22189 (CA) PAGES 22-23 PARAS F-A. He posited that this was not done. In aid of this, he cited the following cases
– KOBUWA & ANOR VS LAMUDU & ANR (1988) LPELR (CA) PAGE 8 PARAS D-F UKPAI & ANOR VS. AJIKE (2018) LPELR–44269 CA PAGE 741 FAAN VS. GREENSTONE LTD (2009) ALL FWLR (PT 500) PG 741.

He submitted that the conclusion by the lower Court that the land was founded by Elemure Ajirotutu was a fallout of the Respondents’ submission as contained in page 580 of the Record of Appeal and that it was wrong for the learned trial Judge to have relied on the address of counsel placing reliance in the case of CONSOLIDATED TIN MINES LTD & ANOR VS. MANGU (2017) LPELR – 43297(CA)

It is the submission of Appellants’ counsel that the parties set out different traditional history of the disputed land and the trial Judge did not evaluate nor countenance the traditional evidence pleaded by the Appellants which had occasions (miscarriage of justice calling in and the case of IKPAMAKU V. MAKOLOMI (2011) LPELR 4513 (CA) PAGE 27 PARAS A. He posited that the claim for trespass cannot inure to the benefit of the Respondents when they have not shown that they are in exclusive possession of the disputed land calling in and the case of ADENIYI VS, OGUNBIYI (1965) NLR 395, 387 OYADARE VS. KEJI (2005) 7 NWLR (PT. 925) 564

In his response, the Respondents’ Counsel submitted otherwise that the Respondents have proven their Claims to entitle them for a declaration. He posited that in paragraph 6 of the Reply to the statement of defence the boundary of the land in dispute had been stated clearly while in paragraph… it was pleaded the land in dispute is not a joint property but the property of Faseemo Olotin. He also referred to paragraphs 17, 18 of the Statement of Claim which he posited was not challenging.

He submitted that the Respondents are seeking declaration of title to land and injunction among other reliefs so it is a duly cast upon than prove their title whose identity must also be clearly stated placing reliance in the cases of IDUNDUN VS. OKUMAGBA (Supra), AUNTA NIG. LTD VS. NWAKOBA & ORS (Supra). He submitted that the Respondents satisfied same placing reliance on the case of NWOKOROBIA VS. NWOGU & ORS (2009) LPELR-2127 SC AT PAGE 19.

On the issue of trespass, he submitted that the Respondents proved same placing reliance on the cases of OYENEYIN VS. AKINKUGBE (2010) 4 NWLR (PT. 1184) 265; – A. G. BENDEL STATE & ORS VS. PLA AIDEYAN (1989) 4 NWLR (PT. 118) 646–679; – IGNATUS ANYANWU & 4 ORS VS. ALOYSIUS UZOWUAKA & ORS (2009) 10 SCM 1; – KANATU SHITTU VS.ALHAJA Y. O. EGBEYEMI & ORS (1996) LPELR 3060; – SOLE BONEH VS.AYODELE (1989) 1 NWLR (PT. 99) 549.

He submitted that the Respondents have their farm on the land in dispute so also their tenants as reflected on Exhibits 3 and 17. That it was wrong for the 1st Appellant to have gone ahead to draw or prepare the survey of the land when the agreement regarding the sale had not been finalized and put in possession.

ARGUMENT ON ISSUE FOUR (4)
It is the submission of the Appellants’ Counsel that the disputed land belongs to both Elemo Famutimi and Faseemo Olotin while the Respondents, claims that the disputed land belongs to Faseemo Olotin. He posited that issues were joined and that the Learned Trial Judge failed to make adequate finding on whether the assertion of the Appellants is correct or not. He submitted that the Respondents’ submission admitting that the disputed land belongs to both Faseemo and Famutimi families is admission against interest placing reliance on the case of EBOADE VS. ATOMESIN (1997) 5 NWLR (PT. 506) 490 510, PARAS G–H.

He referred to the evidence of CW1. He called in aid the cases of NYAVO VS. ZADING (2018) LPELR–44086 (CA); – OSAYOGIE VS. EDOKPAYI (2014) LPELR–22661 (CA).

He posited that the 3rd, 4th and 6th Appellants who are members of Faseemo family stated that the disputed land is jointly owned by the Faseemo and Famutimi families and that it was both families that sold part of the land to the 2nd Appellant. He calls in aid, the case of HONEY WELL FLOUR MILLS PLC VS. ECOBANK (2018) LPELR–45127 (SC) pages 26–28; – ANYANRU VS. MANDILAS LTD (2007) LPELR–670 (SC) pages 34 PARAS A-C. He urged the Court to invoke Section 16 of the Court of Appeal Act.

In his response, Respondents’ Counsel submitted otherwise that the Learned Trial Judge makes a specific finding on whether the disputed land belongs to both Elemo Famutimi and Faseemo Olotin families.

He posited that the learned trial Judge rightly held that the Respondents are the owners of the land in dispute while the 3rd, 4th & 5th Appellants being members of Faseemo Olotin family cannot be held liable in damages for trespass as they are-co-owners of the land in dispute.

He further submitted that the lower Court evaluated the evidence adduced both orally and documentary; there is no need for the invocation of the provisions of Section 15 of the Court of Appeal Act wrongly referred to as Section 16 of the Court of Appeal Act.

ARGUMENT ON ISSUE FIVE (5)
It is the submission of Appellants’ Counsel that the judgment of the trial Court was perverse and not supported by the evidence adduced. He posited the testimonies of its witnesses were not challenged or controverted placing reliance on the Supreme Court cases: – OSUNG VS. STATE (2012) 18 NWLR (PT. 1332) 256 at 287–288 PARA – A; – EBEINWE VS. STATE (2017) 7 NWLR (PT. 246) 402 at 416 PARA D– E.

He posited further that despite the evidence available, the Learned Trial Judge annulled the sale on the ground that the consent of the head of the family was not obtained. He called in and the case of SPERA IN DEO LTD VS. PECCUNO MINERAL INDUSTRY (NIG) LTD & ANOR (2016) LPELR–41044 (CA); – OGBEIDE & ANOR VS.OSIFO (2006) LPELR–6217 (CA); – FATUGA VS.AINA (2008) ALL FWLR (PT. 394) at 400 PARAS D–E; – KAYIL V. YILBUK & ORS (SC 92) 2005 LPELR.

In his response, learned Respondents’ Counsel holds a contrary opinion. He submitted the land in dispute is a farming land and there is no evidence before the Court that it had been partitioned. He posited that the trial Court was right to have held that the issue of joint ownership of the land was not there and that same belonged to Faseemo Olotin family. Learned Counsel further contended that assuming but without conceding the disputed land is being owned by both families, still the position in law is that the head of the family can take an action to protect family property without prior authority of the members of the family placing reliance on the case of BENEDICT OJUKWU VS. LOIUSA C. OJUKWU (2008) 12 SCM (PT. 2) 580. He further contended that the sale of a family land by the head of a family without the consent of the principal members of the family is only voidable and not void ab initio placing reliance on the cases of – OMOLOLA ABIKE VS. OLALONPE ADEDOKUN (1986) 3 NWLR (PT. 30) 549; – T. LAWAL OWOSHO & ORS VS. MICHEAL ADEBOWALE DADA (1984) 7 SC 149 at 173.

Learned Counsel to the Respondents argued that the draft agreement Exhibit 4 was not executed and same carries no weight. He submitted further that the arguments and submissions of the Appellants on Issue Five as contained at pages 27–33 of their brief of argument are full of distortion of facts contrary to the pleadings and evidence of the parties on record. He submitted that the 1st Respondent did not resile and renege on the sale of the land in dispute to the 2nd Appellant because of the 1st Respondent’s avarice to the sharing formula but because of lack of consent concurrence, authority and approval of the 1st Respondent being the head of the family as well as other principal members. He urged the Court to dismiss the appeal and affirm the judgment of the trial Court.

RESOLUTION OF THE FIVE ISSUES CRAFTED AND ADOPTED BY THE APPELLANTS/RESPONDENTS’ COUNSEL

ISSUE ONE: Whether or not the Court below properly exercised its discretion when it dismissed the Appellants’ application held on the 25/9/2017 seeking for amendment of their pleadings (Ground one (1)).

RESOLUTION: I have given an insightful and analytical consideration to the legal submissions proffered by the respective Learned Counsel to the parties in this appeal. I have also examined the printed Record of Appeal with the numerous judicial authorities as well as statutory provisions referred to. I wish to state that the law is settled that generally an amendment of pleading for the purpose of determining the real question in controversy between the parties ought to be allowed at any stage of the proceedings see the cases of BANK OF BARODA VS. IYALABANI (2002) 13 NWLR (PT. 785) 551 at 593; OKOLI VS. AJOSE (1944) 8 NWLR PT. 300 at 312.
An amendment will not be allowed if it will entail injustice to the other party. The refusal of the Court to grant an amendment in a particular case depends on its own special circumstances which will govern the discretion of the Court. It is therefore not possible to set out an exhaustive list of circumstance in which leave to amend will be disallowed.
The circumstances under which the Court may refuse leave for amendment are as follows: –
1. Where the amendment would necessitate the hearing of further evidence.
2. Where it would entail introducing allegation of fraud or defence of justification.
3. Where it could not cure the defects in the procedure sought to be cured or where it is inconsistent and useless.
4. Where it would completely present a different case or cause injustice to the other party or where application for amendment is brought malafide. See the case of CHIEF ADEKEYE VS. CHIEF AKIN–OLUGBADE (1987) 3 NWLR (PT. 60) 214.
On the principles and circumstances where an amendment may be allowed:
(a) The Court must consider the materiality of the amendment sought and will not allow an inconsistent or useless amendment.
(b) Where the amendment would enable the Court to decide the real matter in controversy and without injustice.
(c) Where the amendment relate to a mere misnomer it will be granted almost as a matter of course.
(d) The Court will not grant an amendment to change the nature of the claim before the Court.
(e) The Court will not grant an amendment where it will create a suit where none existed.
(f) Leave to amend will not be granted if it would not cure the defect in the proceeding.
(g) An amendment would be allowed if it would prevent injustice to the other party or which would violate the rule of “audi alteram partem” will not be allowed. The rule will be infringed if an amendment is introduced at such a stage that the other side no longer have the opportunity of adducing his own answer to the point which the amendment has enabled the applicant to introduce.

I have earlier on before now in the course of this judgment enumerated the necessary conditions/requirements being considered by the Court with a view to exercising its discretion judicially and judiciously. Having examined the aforesaid conditions, I am afraid they have not presented themselves in the instant case to warrant the lower Court exercise its discretion to grant further amendment sought by the 1st–6th Defendants/Appellants were only designed to overreach or outsmart the Claimants/Respondents with a view to winning a cheap victory or any victory at all. The Claimants/Respondents had called evidence both orally and documentary and the Defendants/Appellants’ Counsel did cross-examine them. Granting further amendment to the statement of defence would have a grave impact on the Claimants/Respondents. Accordingly, the lower Court was perfectly on a sound footing to have refused the Application sought for further amendment of the defendants’ statement of defence. So there was no perversity as alluded by the Appellants’ Counsel to warrant this Honourable Court to interfere with the well made out finding by the lower Court. To this end, issue one stands resolved against the Appellants and in favour of the Respondents herein.

ISSUE TWO – Whether or not the Respondents proved the identity of the disputed land to entitled them to judgment at the lower Court (Grounds 2 and 7).

RESOLUTION – I have carefully considered the legal submissions rendered by the contending Learned Counsel to the parties in respect of the identity of the disputed land as well as the numerous judicial authorities cited to buttress their positions.

I wish to state the burden or onus is always undoubtedly on the Claimants to show clearly the area of land to which their claim relates. See ONWUKA VS. EDIALA (1989) 1 NWLR (PT. 96) 182; – UDEZE VS. CHIDEBE (1990) 1 NWLR (PT. 125) 141; – MAKANJUOLA VS. BALOGUN (1989) 3 NWLR (PT. 108) 192, where there is a counter-claim filed by the Defendant the onus is on him too to prove with precision and certainty and without inconsistency the identity of the land to which his claim or counter-claim relates. In the instant case, the Defendants/Appellants did not file a counter-claim but were only in Court to defend the Claimants/Respondents’ suit. The purpose of ascertaining the exact area of the land in dispute is to enable the parties or anybody claiming through them to know the precise area to which the judgment of Court relates. Also, an order of injunction cannot be made in respect of an area of land whose boundaries are not properly identified. The Claimants/Respondents at the lower Court were able to, by oral evidence described with such degree of accuracy, the said parcel of land in dispute to the satisfaction of the Court. The filing of survey plan is not a sine qua non to proof of the identity of land as the acid test is that the land must be ascertained with definitive certainty.

A land in dispute is said to be ascertained with definitive certainty as to whether a surveyor can from the record produce an accurate plan of such land. The Respondents were asked to ascertain with certainty the disputed land. Accordingly, I have no hesitation in holding that the Appellants’ contention that the identity of the disputed land was not properly identified is far from the truth. To this end, issue two stands resolved against the Appellants and in favour of the Respondents.

ISSUE THREE – Whether or not the Respondents discharged the burden of proof as to entitle them to declaration of title to land and the consequential reliefs granted to them by the lower Court (Grounds 3, 5, 8, 9, 10, 12).

RESOLUTION – I have considered the canvassed arguments of the respective learned Counsel to the parties herein as well as the legion of judicial authorities cited in support of their submissions on this issue.

Generally, it is on the Claimants seeking a decree of declaration of title that the onus of proof usually rests. See the case of ONOBRUCHERE VS. ESEGINE (1986) 1 NWLR (PT. 19) 799, where the Claimants fail to prove their title to the land in dispute they are not entitled to judgment. See OYEYIOLA VS. ADEOTI (1973) NWLR 10. Where evidence of title is not satisfactory and conclusive, a party will not succeed at trial. In essence, the burden is on the Claimants seeking a declaration of title to land to adduce credible, convincing and unequivocal evidence in support of their case.
The rule which is now trite and enjoys a plethora of judicial endorsement is that the Claimant(s) must succeed only on the strength of their case and not on the weakness of the defence. See the case of – BALOGUN VS. AKANJI (1988) 2 SCNJ 104, (1988) 1 NWLR (PFJO) 301; – KAIYAOJA VS. EGUNLA (1974) 12 SC 55, 61.
The only exception to the general rule that the Claimant(s) must succeed on the strength of their case is where the defendant pleads or calls evidence which supports the case of the Claimant(s). Consequently, where the exception, amounts to an admission by the defendant(s) it only adds to the weight of the claimant(s) case on the imaginary scale of justice but not that they automatically succeed. So it is not really or truly an exception because being a declaratory relief – the claimant(s) still have to prove their case by evidence to get judgment.
To this end, the ultimate burden placed on the claimant(s) to prove their case on balance of probability remains on them and never shifts notwithstanding defendants’ alleged admission if any in a situation where there is no counter-claim. The evidence must be directed and confined to the proof and disproof of the issues as settled in the pleadings. Applying the above principles, how did the claimants fare at the lower Court? From the claimants’ pleadings and the evidence led thereto, it is beyond any equivocation the claimants proved their case on preponderance of evidence adduced. The evidence adduced was in line with the pleadings the claimants remained consistent in the case they pursued. The Claimants/Respondents pleaded their root of title based on traditional history/evidence. I have carefully visited the residence of the Claimants’ statement of claim and reply to the amended statement of defence of the 1st–6th Defendants/Appellants and we are of the view that the traditional evidence was cogent, credible, concise and conclusive which warranted the lower Court to have found for the Respondents. To this end, this Honourable Court cannot disturb the positive finding made that the Claimants/Respondents discharged the onus placed on them. In the light of the above, issue three stands resolved against the Appellants and in favour of the Respondents herein.

ISSUE FOUR – Whether or not the disputed property is the joint property of Elemo Famutimi and Faseemo Olotin which remained unpartitioned? (Grounds 4 and 6).

I have given due consideration to the legal submissions proffered by the line of divide herein while the Claimants/Respondents claim to be the owner of the disputed land, the defendants particularly 3rd, 4th and 5th Defendants claim to be in joint ownership of the disputed land with the Claimants. By the state of pleadings and the evidence led thereto the disputed land belongs to Faseemo Olotin family. This is borne out of the evidence adduced at the lower Court which was duly captured thus: – “In the circumstances of this case, I overruled the issue of joint ownership of the land in dispute by both Faseemo Olotin and Famutimi Elemo families. That the land in dispute belongs to Faseemo Olotin family”, even if I am wrong in this stand which is not conceded the fact still remains that the land in dispute whether solely owned by Faseemo Olotin family or jointly owned by Faseemo Olotin family and Famutimi families is still family land. It is trite position of law that the head of family can take an action to protect family property without prior authority of the members of the family without much ado. The finding of the lower Court was unassailable that the disputed land was a family land of Faseemo Olotin ceded to him by the permission of Oba Atobatele the Elemure through Osin Ayaraluju in 1910 after the payment of necessary consideration and traditional rites.

In the light of the above, issue four succeeds in favour of the Respondents and against the Appellants.

ISSUE FIVE – Whether or not the lower Court was right when it annulled the sale of the disputed land to the 2nd Appellant (Ground 11).

RESOLUTION

I have given an indepth consideration to the legal submissions made by the contending Learned Counsel to the parties in this appeal as well as the numerous authorities cited in support of their submissions. I wish to state that it is well settled that a sale of family land by the Head of the family is only made voidable where it is made without the concurrence of the family. Such a sale is not void but merely voidable. But where a family land is sold by members of the family without the concurrence of the head of the family such a sale is void ab initio. See the cases of EKPENDU VS. ERIKA (1959) 4 FSC 791; CITY PROPERTY DEVELOPMENT LTD. VS. A. G. LAGOS STATE (1976) 1 SC 71; – SOLOMON VS. MOGAJI (1982) 11 SC 1 7–10; – LUKAN VS. OGUNSUSI (1979) 5 SC 40 at Pp. 46–48.
The principles of law governing sale of family property are well settled. Firstly, the head of the family must join in a disposition of family land and the principal members of that family must also concur in such a sale and disposition purporting to transfer family land without these essential customary elements will be void ab initio.
Secondly, transactions carried out by members of a family in respect of family land without the concurrence of the head of the family are also null and void ab initio. The position is different when the head of the family alone sells family land and without the consent of the principal members of the family. In the latter case, the transaction is not void ab initio but prima facie voidable and the family can set aside such a sale if the other members act timeously. Suffices to point out this principle of law is only applicable, however where such a head of family alienate the land or makes a disposition thereof for and on behalf of the family and not where he purports to sell the property as beneficial owner thereof. In the latter case the maxim “nemo dat quod non habet” will apply and the disposition will be void ab initio. See the cases of AKERELE VS. ATUNRASE (1969) 1 ALL NLR 201 at 208; – FAYEHUN VS. FADOJU (2000) 4 SCNJ 89–90.

In the instant case, the sale of the family land by the 1st defendant to the 2nd defendant was void ab initio and the lower Court was perfectly right to have set same aside.

Accordingly, this issue is also resolved against the Appellants and in favour of the Respondents.

Having resolved the five issues crafted by the Appellants’ Counsel against them and in favour of the Respondents, the destiny of the appeal is plain. It is dead on arrival and the proper order to make in the circumstances is to dismiss the appeal as lacking in merit and in its place, the judgment of the lower Court in Suit No HAD/4/2014 delivered on the 16th day of November, 2018 is affirmed. A cost of N200,000 is awarded against the Appellants and in favour of the Respondents.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

TUNDE OYEBANJI AWOTOYE, J.S.C,: I had the privilege of reading before now, the draft of the judgment just delivered by my learned brother ABDUL-AZEEZ WAZIRI (JCA).
I agree fully with the sound reasoning and conclusion of my learned brother in his leading judgment.

By way of emphasis, I have the following to say with respect to issue no. one as formulated by each of the parties. It reads:
“Whether or not the Court below properly exercised its discretion when it dismissed the Appellants application filed on the 25/9/2017 seeking for the amendment of their pleadings”

The defendants at the lower Court had sought to further amend their Amended Statement of Defence of the 1st-6th Defendants as per the underlined paragraphs of her proposed final Amended Statement of Defence of the 1st- th Defendants attached as Exhibit X.

The reasons for the application are as per paragraphs 7-11 of her supporting affidavit which read thus
“The Defendants/Applicants subsequently filed a joint statement of defence pursuant to the order of this Honourable Court made on the 8th day of December, 2015.
8) That after the filing of the Defendants/Applicants Statement of Defence and in the course of this suit, certain developments have taken place such as the striking out of the name of late Chief Albert Ibironke as well as the joiner of Chief Babatunde Ibironke as a co- Defendant.
9) That I verily know as a fact that this suit, which was part- heard by Hon. Justice L. O. Ogundana, commenced de novo before My Lord, Hon. Justice Adesodun.
10) That sequel to this above, the Defendants/Applicants intend to amend their Amended Statement of Defence as per the underlined portions of the proposed Final Amended Statement of Defence in order to plead the former proceedings conducted by His Lordship, Hon. L. O. Ogundana.
11) That this application is therefore necessary to effect this amendment as per the attached Proposed Final Amended Statement of Defence of the 1st-6th Defendants which is herein attached and marked as Exhibit “X”.
12) That I reasonably believe that the respondents will not be prejudiced by the grant of this application and it is in the interest of justice to grant same”.

The Respondents reacted by filing a 15 paragraphs counter affidavit. Most pertinent among the averments in the counter-affidavit are paragraphs 6-12. They state as follows:
“2) That I have authority of my family, Faseemo Olotin family and the other Claimants/Respondents to swear to this affidavit.
3) By virtue of my position I am familiar with the facts and circumstances of this case.
4) That I have read the motion papers filed by the Defendants/Applicant, their affidavit and the proposed amended statement of Defence.
5) That it was a fact that Justice L. O. Ogundana part-heard the suit before he was transferred and Justice Adesodun has commenced de novo the hearing of the suit before the (2nd) final amended Statement of defence of the 1st-6th Defendants motion was filed.
6) That I have read the motion papers and have observed that the Defendants/Applicants intend to amend their Amended Statement of Defence as per the underlined portions of the proposed Final Amended statement of defence in order to plead the proceedings conducted by His Lordship Hon. L. O. Ogundana.
7) That paragraph 42 of their proposed final amendment read thus: “The defendant avers that this suit, which was part-heard by Hon. Justice L. O. Ogundana, commenced de novo before My Lord, Hon. Justice Adesodun. The defendants shall found upon the record of proceedings conducted by His Lordship, Hon. L. O. Ogundana at the hearing of this suit”.
8) That in the final Amended statement of Defence of the 1st-6th Defendants they changed the content of their paragraph 52 to read this: “That I know as a fact that this suit, which was part-heard by Hon. Justice L. O. Ogundana commenced de novo before My Lord Hon. Justice Adesodun. I can recognize the record of proceedings conducted by his Lordship Hon. L. O. Ogundana” The two paragraphs quoted above are saying different things.
9) That the order of the Court was that the case should start de novo by the new Judge, Hon. Justice Adesodun.
10) That bringing part of the proceeding if the part-heard case as evidence in this matter is wrong. The new Judge is to hear the case de-novo.
11) That I am informed by our learned counsel, Otunba Bisi Egbeyemi and I verily believe him that the amendment should relate back to the date of the original pleading, that where an amendment is sought to incorporate a cause of action which arose after the statement of defence was filed did not exist such an amendment should not be allowed.
12) That the averment of the Deponent in paragraph 8 of the affidavit is not true because all the necessary amendment were made in the first amendment. It is obvious that only paragraph 42 of the final amendment was the only different thing to the 1st amendment.
13) That the affidavit of the applicants did not contain any reason for bringing in part of the part heard proceedings.
14) That we the claimants/Respondents reasonably believe that we will be prejudiced by the grant of the application more so that they selected the aspect of the part heard matter that they sought to include as an amendment to their final statement for defence and it is in the interest of justice not to grant their application.
15) That I make this oath in good faith believing same to be in accordance with Oaths and declaration Laws of Ekiti State.

The learned trial Judge in his ruling dismissed the application.

Now, the principles governing the grant of amendment to pleadings are settled. An amendment will not be granted if it is designed to outsmart outwit the adverse party by cunning or artifice.
Tobi JSC in YUSUF vs ADEGOKE & ANOR (2007) 11 NWLR PART 1045 p. 332 had this to say on this point
“The law recognizes a possible lapse of failure of the human memory, it has worked at pressures for amendment of pleadings to accommodate any possible lapse or failure. But the amendment of pleadings is not open ended, in the sense that an applicant can always succeed in his application for amendment. For instance, where an application for amendment is designed to overreach the respondent, the Court will not grant the application. This arises when the applicant cleverly anticipates the care of the case of the respondent and seeks the amendment to frustrate the case with the result that the respondent fails at the end of the day. An overreacting conduct is a circumventing conduct to outwit the adverse party by cunning or artifice”.
On the Appellants’ own showing, what they sought to introduce is the proceeding which was ordered to be heard de novo. A proceeding ordered to be tried de novo is supposed to be heard afresh. See IDAKWO vs. EJIGA & ANOR (2002) 13 NWLR PART 783 at p. 156; FADIORA & ANOR v. GBADEBO & ANOR (1978) LPELR-1224 (SC) IDIGBE JSC in that case explained this point as follows:
“In trials de novo the case must be proved a new or rather reproved de novo and therefore, the Judge’s findings at the first trial are completely inadmissible on the basis that primary face they have been discarded or got rid of. The Court of second trial, therefore is entitled to and indeed must look at the pleadings before it in order to ascertain and decide the issues joined by the parties before it on their pleadings. This is the reason why it is a fundamental principle of the doctrine of res judicata that no finding of the Court or of a jury which has proved abortive, a new trial having been directed, will give rise to a valid plea of estoppels”.
I dare say in addition that evidence given in an earlier proceeding ordered to be tried de novo is a discarded abandoned evidence that cannot be invoked or revived in a subsequent proceeding. See BABATUNDE vs. PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD (2007) 13 NWLR PART 1050 p. 113.
This is why I believe that the Appellants sought to introduce by way of amendment was a mere distracting, diversionary and irrelevant evidence and the learned trial Judge was right to have dismissed the application. I therefore resolve this issue against the appellants.

For the above reason and the fuller reasons given in the leading judgment. I resolve all the five issues proposed by the Appellants against them and also dismiss the appeal. I abide by the consequential orders made in the leading judgment.

Appearances:

Owoseni Ajayi, Esq., with him, Kayode Abe, Esq., O.A. Olayemi, Esq., E.A. Hart, Esq., U.O. Okacha, Esq., E L. Mbam, Esq., F.S. Tehinse, Esq. and J.E. Dashap For Appellant(s)

Gbenga Alabadan For Respondent(s)