SUNDAY OLOGUN V. JOHNSON FATAYO (2012)

SUNDAY OLOGUN V. JOHNSON FATAYO

(2012)LCN/5510(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of June, 2012

CA/B/200/2004

RATIO

PROCEDURE: PRINCIPLES GUIDING AMENDMENT OF PLEADINGS

The Court or a Judge in Chambers may, at any stage of the proceedings, allow either party to alter or amend his endorsement or pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties, “

The Supreme Court in the recent case of: Akaninwo Vs Nsirim (2008) 9 NWLR (1093) 439 @ 461 – 462 referred to its earlier decision in: Chief Adedapo Adekeye & Anor. Vs Chief O.B. Akin-Olugbade (1987) 6 SC 268 @ 280 – 281; (1987) 3 NWLR (60) 214 @ 223 – 224 wherein Eso, JSC critically examined the nature of an amendment and when it may be granted or refused thus:

“The aim of an amendment is usually to prevent the manifest justice of the cause from being defeated or delayed by formal slips which arise from the inadvertence of counsel. It will certainly be wrong to visit the inadvertence or mistake of counsel on the litigant. The courts have therefore through the years taken a stand that however negligent or careless may have been the slip, however late the proposed amendment, it ought to be allowed, if this can be done without injustice to the other side, for a step taken to ensure justice cannot at the same time be used to perpetuate an injustice on the opposite party. The test as to whether a proposed amendment should be allowed is therefore whether or not the party applying to amend can do so without placing the opposite party in such a position which cannot be redressed by that panacea which heals every sore in litigation namely costs.” (Emphasis supplied by His Lordship).

In the case of: Kode Vs Yusuf, (2001) 4 NWLR (703) 392 @ 412 B – D, His Lordship, Onu, JSC stated thus:

“…in law, to amend any legal process affords a party whether a plaintiff or defendant and even the appellant or respondent on appeal to correct an error in the legal document. … Amendment enables the slips, blunders, errors and inadvertence of counsel to be corrected in the interest of justice, ensuring always that no injustice is occasioned to the other party” (Emphasis supplied).

The case of Alsthom S.A. & Anor. Vs Chief Olusola Saraki (2000) 18 LRCN 305; (2000) 14 NWLR (687) 415 @ 423 – 424 was referred to.

The power to grant or refuse an amendment is discretionary. As with the exercise of all discretionary powers, the discretion must be exercised judiciously and judicially taking into account the competing rights of the parties to justice. PER KUDIRAT MOTONMORI OLATOKUNBO, KEKERE-EKUN, J.C.A

PLEADINGS: ESSENCE OF PLEADINGS

The essence of pleadings is to compel the parties to define precisely the issues upon which the case is to be contested. It is to avoid the element of surprise by either party. See: Abubakar & Anor. Vs Joseph & Anor. (2008) 5 – 6 SC (Pt. II) 196 – 197; George Vs Dominion Flour Mills Ltd. (1963) 1 SC LRN 177; Emegokwe Vs Okadigbo C1973) 4 SC 113, It is also settled law that facts admitted require no further proof. PER KUDIRAT MOTONMORI OLATOKUNBO, KEKERE-EKUN, J.C.A

EVIDENCE: EFFECT OF ADMITTED FACTS

The admitted facts should be taken as established and should form one of the agreed facts of the case. See: Akaninwo Vs Nsirim (supra) at page 479 F – G; Chief Okparaeke Vs Egbuonu (1941) 7 WACA 53; Olubode Vs Oyesina (1977) 5 SC 79. PER KUDIRAT MOTONMORI OLATOKUNBO, KEKERE-EKUN, J.C.A

EVIDENCE: CIRCUMSTANCE WHERE ADMISSION WOULD NOT RELIEVE THE PLAINTIFF OF THE BURDEN OF PROOF

The only circumstance in which admission would not relieve the plaintiff of the burden of proof is where he seeks declaratory reliefs. A declaratory relief cannot be granted on the basis of admission. See: Dumez Nig. Ltd. Vs Nwakhoba (2008) 18 NWLR (1119) 361 @ 376 A – E; Metzger Vs Department of Health and Social Security (19770 3 ALL ER 444 at 451; Ogolo vs. Ogolo (2006) All FWLR (313) 1 @ 13 – 14; (2006) 5 NWLR (972) 163 @ 184 D – E. PER KUDIRAT MOTONMORI OLATOKUNBO, KEKERE-EKUN, J.C.A

ACTION: DUTY OF A PARTY BRINGING A CASE

JUSTICES

KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

MOORE A.A. ADUMEIN Justice of The Court of Appeal of Nigeria

Between

SUNDAY OLOGUN Appellant(s)

AND

JOHNSON FATAYO Respondent(s)

KUDIRAT MOTONMORI OLATOKUNBO, KEKERE-EKUN, J.C.A, (Delivering the Leading Judgment): By his statement of claim dated 28/11/97 filed before the High Court of Ondo State, Akure Judicial Division, the respondent herein, as plaintiff, sought the following reliefs against the appellant as defendant:
1. “For the recovery of the sum of N500,000.00 as general damages for trespass committed and it is still being committed on the plaintiffs piece or parcel of land situate and being along Agunla Street, Iju, Ondo State and which is particularly described and verged RED on Survey Plan No. AB/OD/92/808.
2. Perpetual injunction restraining the defendant, his servants and or agents from committing further acts of trespass on the said piece or parcel of land.”
The parties duly filed and exchanged pleadings. The respondent testified on his own behalf and called one other witness. He tendered exhibits and closed his case on 27/5/03. The case was then adjourned for defence. The court could not sit on the adjourned date (2/7/03) on account of a nationwide industrial action, Thereafter the suit was adjourned several times at the instance of the appellant. By a motion on notice dated 4/11/03 and filed on 5/11/03, the appellant sought leave to amend the statement of defence as shown in the schedule of amendment attached to the supporting affidavit. The averments in the supporting affidavit deposed to by one OLADIMEJI TAIWO are reproduced hereunder:
“1. That I am the Litigation officer in the chambers of the defendant’s/applicant’s counsel.
2. That by virtue of my duties I am conversant with the facts of this case.
3. That I have the consent and authority of the defendant/applicant to depose to this affidavit.
4. That the Statement of Defence was originally filed by the defendant’s former Solicitors, A.A, Akintunde & Co.
5. That the plaintiff has just made available to our chambers some new material facts which were not in the statement of defence.
6. That I was informed by Tope Adedipe of counsel, and I verily believe him that in view of the new material facts, it is necessary to amend the statement of defence and that leave of this Honourable Court is required.
7. That the proposed amended statement of defence is herewith attached as Exhibit A.
8. That the amendment will enable the court to determine the real questions in issue between the parties once and for all.
9. That the plaintiff will not in any way be prejudiced by this application.
10. That it is in the interest of justice to grant this application.
11. That I depose to this affidavit in good faith, in accordance with the Oaths Act.”
The respondent filed a counter affidavit wherein he averred inter alia that Wale Omotosho Esq., had been appearing as counsel for the appellant as far back as 30/10/2001; that some paragraphs of the proposed amendment seek to deny averments already admitted and also that paragraph 3 of the proposed amendment sets up a new issue.
The learned trial Judge listened to the submissions of the respective counsel and in a considered ruling delivered on 24/3/04 dismissed the application. Being dissatisfied with the decision, the appellant filed a notice of appeal dated 2/4/04 containing two grounds of appeal.
In compliance with the Court of Appeal Rules, the parties filed and exchanged their respective briefs of argument. At the hearing of the appeal on 17/5/2012, F. OMOTOSHO ESQ.,leading MISS O. EDREMODA adopted and relied on the appellant’s brief dated 7/6/05 and filed on 8/6/05. It was deemed properly filed and served on 8/6/05. He urged the court to allow the appeal.
We were satisfied from the court’s record that the respondent was duly served with hearing notice through his counsel on 23/2/2012. Having regard to the brief of argument dated and filed on 23/11/05 settled on his behalf by CHIEF A.O. FESOBI, he is deemed to have argued the appeal pursuant to Order 18 Rule 9(4) of the Court of Appeal Rules 2011.
The appellant formulated a single issue for determination from the two grounds of appeal as follows:
“Whether the learned trial Judge was right in refusing the appellant’s application for leave to amend his statement of defence after the respondent had closed his case but before the appellant had opened his own defence.”
The respondent distilled two issues from the grounds of appeal thus:
1. Whether the proposed amendment will introduce new material issues prejudicial to the case already presented before the court.
2. Whether failure of the appellant to disclose when the alleged new facts were discovered is fatal to the merit of the application to amend the statement of defence.
I shall determine the appeal on the single issue formulated by the appellant.
In support of the appeal, learned counsel for the appellant submitted that the grant of an application of this nature is discretionary and the court has a duty to give the matter a holistic consideration in its bid to do justice. He referred to the following finding of the learned trial Judge at page 32 of the record:
“A careful perusal of the statement of defence shows that the defendant admitted paragraphs 4 and 16 of the statement of claim. Paragraph 2 of the proposed amended statement of defence now denies paragraphs 4 and 16 of the statement of claim. Already the plaintiff has closed his case. If the application is allowed, there is no way the plaintiff can prosecute the case without suffering some injustice. ”
He submitted that, contrary to the above view of the learned trial Judge, an examination of the proposed amendment as set out in the schedule of amendment would reveal that none of the paragraphs raise any new issues. He observed that paragraph 4 of the statement of claim refers to the respondent’s description of the land in dispute. He submitted that save for the denial as contained in paragraph 2 of the proposed amendment, the identity of the land was not in dispute, as both parties trace their ownership and title to the same grantor, Oba Okiti. He observed further that in paragraph 16 of the statement of claim the respondent pleaded the judgment and proceedings in suit no. IJ/ITCC/45/97 and submitted that by his general denial of this averment in the proposed amendment, the appellant merely put the respondent to strict proof of same. He noted that both the judgment and proceedings had already been tendered and admitted in evidence and no denial by the appellant could alter them.
Learned counsel also challenged the finding of the learned trial Judge that paragraph 3 of the proposed amendment sets up a new issue. He noted that in the proposed amendment the appellant sought to challenge the respondent’s assertion in his statement of claim that the land in dispute is demarcated by survey pillars and covered by a survey plan. He contended that since the respondent’s survey plan was already in evidence, it would not be correct to say that the appellant sought to raise a new issue. Relying on the case of Biode Pharmaceutical Ind. Ltd. Vs Adsell Nig. Ltd. (1985) 5 NWLR (46) 1070 @ 1076; Ndazoko Vs Zakaryau (1999) 1 NWLR (586) 191 @ 197, he conceded that an amendment that would introduce matters in respect of which the plaintiff could no longer reply should not be allowed. He however submitted that in the instant case the grant of the application would not prejudice the respondent in any way. He contended that the purpose of the amendment is to enable the appellant’s new counsel to properly place his case before the court. He relied on: U.B.N. Plc, Vs Dafiaga (2000) 1 NWLR (640) 175 @ 188; Equity Bank (Nig.) Ltd. Vs Daura (1999) 10 NWLR (621) 147@157 F-G.
With regard to the respondent’s contention before the court below that the appellant’s new counsel had been appearing in the matter for over a year before seeking the amendment, he submitted that such delay should be attributed to the mistake of counsel and ought not to be visited on the litigant. He submitted that the primary duty of the court is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases. He referred to: Ogidi Vs Egba (1999) 10 NWLR (621) 42 @ 54 – 66 F – B. He submitted that the interpretation given to Order 26 Rule 1 of the Ondo State Rules of the High Court by the learned trial Judge was too restrictive. He noted that the rule provides that the court or a Judge in chambers may “at any time” amend any defect or error in proceedings for the purpose of determining the real issue in controversy between the parties. He submitted that in the civil procedure rules of other jurisdictions, the words “at any time” are replaced with “at any stage”. He referred to Order 25 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules and submitted that a party is at liberty to amend his pleadings at any stage of the proceedings for the purpose of determining the real question in controversy if it is made in good faith and without injustice to the other party. He referred to: Ogidi Vs Egba (supra) at 62 – 64 F -B; F.B.N, (Nig.) Plc. Vs M.O, Kanu & Sons Co. L1999) 9 NWLR (619) 484 @ 499 F; 500 H – A; 501 B – C. He maintained that the amendment sought in this case is in good faith. He contended that as the appellant had not opened his defence, the respondent was at liberty, if necessary, to recall his witnesses in respect of any new matter that might arise in his pleadings as a result of the amendment.
He conceded that an appellate court would not normally interfere with the exercise of discretion by the trial court, but where the trial court has acted upon some wrong principles of law and/or misapprehension of the facts, the Court of Appeal would readily interfere. He referred to: MV Lupex Vs N.O.C. & S. Ltd. (2003) 15 NWLR (844) 469 @ 487. He urged the court to allow the appeal.
In reply to the above submissions, CHIEF A.O. FESOBI submitted in his brief of argument that the amendment seeks to raise new issues, to which the respondent would be unable to respond. He noted that in paragraph 1 of the original statement of defence the appellant did not specifically deny or admit paragraphs 7, 8, 9, 10, 11 and 12 of the statement of claim. He submitted, relying on the case of Lewis & Peat (N.R.I.) Ltd. Vs Akhimien (1976) 7 SC 157 @ 163, that where a party refuses to admit or deny an averment the position is that issues have not been joined by the parties and the adverse party is entitled to assume that the paragraphs that have not been denied are admitted. He noted that in the proposed amended statement of defence the said paragraphs are specifically denied.
He submitted that the proposed amendment to paragraph 2 of the statement of defence denies paragraph 4 of the statement of claim, wherein the boundaries of the land in dispute are pleaded. He submitted that the boundaries of disputed land are crucial in land matters. He argued that to allow the appellant to amend his statement of defence by joining issues with the respondent on the boundaries of the land in dispute would be detrimental to the respondent, having closed his case and the surveyor who testified having been discharged by the court with the consent of learned counsel for both parties. He drew the court’s attention to the averments in paragraphs 11 and 12 of the statement of claim, which the appellant initially did not deny, and paragraph 12 of the proposed amendment where the averments in these paragraphs are now denied. He also referred to paragraph 4 of the proposed amendment and submitted that all these paragraphs seek to raise a different case not contemplated by the respondent at the time he was establishing his case. He further submitted that the respondent would not be able to react to paragraphs 8 -20 of the proposed amendment without amending his reply to the statement of defence and recalling all his witnesses. He submitted that this would be prejudicial to his case. He relied on: Biode Pharmaceutical Ind. Ltd. Vs Adsel (Nig.) Ltd. (supra) referred to by learned counsel for the appellant.
Learned counsel referred to the counter affidavit filed in opposition to the application for amendment and submitted that the delay in bringing the application was not due to the mistake of counsel but a deliberate attempt to delay the trial of the suit. He urged the court to resolve the issue against the appellant and dismiss the appeal.
The relevant provision of the Ondo State High Court (Civil Procedure) Rules I9B7 is Order 26 Rule 2, which provides:
The Court or a Judge in Chambers may, at any stage of the proceedings, allow either party to alter or amend his endorsement or pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties, ”
The Supreme Court in the recent case of: Akaninwo Vs Nsirim (2008) 9 NWLR (1093) 439 @ 461 – 462 referred to its earlier decision in: Chief Adedapo Adekeye & Anor. Vs Chief O.B. Akin-Olugbade (1987) 6 SC 268 @ 280 – 281; (1987) 3 NWLR (60) 214 @ 223 – 224 wherein Eso, JSC critically examined the nature of an amendment and when it may be granted or refused thus:
“The aim of an amendment is usually to prevent the manifest justice of the cause from being defeated or delayed by formal slips which arise from the inadvertence of counsel. It will certainly be wrong to visit the inadvertence or mistake of counsel on the litigant. The courts have therefore through the years taken a stand that however negligent or careless may have been the slip, however late the proposed amendment, it ought to be allowed, if this can be done without injustice to the other side, for a step taken to ensure justice cannot at the same time be used to perpetuate an injustice on the opposite party. The test as to whether a proposed amendment should be allowed is therefore whether or not the party applying to amend can do so without placing the opposite party in such a position which cannot be redressed by that panacea which heals every sore in litigation namely costs.” (Emphasis supplied by His Lordship).
In the case of: Kode Vs Yusuf, (2001) 4 NWLR (703) 392 @ 412 B – D, His Lordship, Onu, JSC stated thus:
“…in law, to amend any legal process affords a party whether a plaintiff or defendant and even the appellant or respondent on appeal to correct an error in the legal document. … Amendment enables the slips, blunders, errors and inadvertence of counsel to be corrected in the interest of justice, ensuring always that no injustice is occasioned to the other party” (Emphasis supplied).
The case of Alsthom S.A. & Anor. Vs Chief Olusola Saraki (2000) 18 LRCN 305; (2000) 14 NWLR (687) 415 @ 423 – 424 was referred to.
The power to grant or refuse an amendment is discretionary. As with the exercise of all discretionary powers, the discretion must be exercised judiciously and judicially taking into account the competing rights of the parties to justice.
The first reason given by the learned trial Judge for refusing the amendment is that Mr. Omotosho, learned counsel for the appellant herein, had been appearing in the case since October 2001. Furthermore the court was not told when the new facts sought to be incorporated were discovered. A careful scrutiny of the affidavit in support of the application (reproduced earlier) shows that the nature of the material facts allegedly disclosed to the applicant’s counsel were not stated. The time of the disclosure was also not stated. In paragraph 4 of the counter affidavit, as observed by the learned trial Judge, it is averred that Mr. Omotosho had been appearing as counsel for the appellant since 30/10/2001. This averment was not denied. It is deemed admitted. The application to amend was filed on 5/11/2003, more than two years later, The last pleading in the suit i.e. the Reply to Statement of Defence was filed on 12/3/98 (see page 11 of the record).
It is however trite that lateness in filing the application alone would not be sufficient grounds for refusing it. It could be granted where it would not occasion manifest injustice to the other side. I shall revisit this issue later in the course of the judgment.
Other reasons given for refusing the application are that the appellant is seeking to deny paragraphs 4 and 16 of the statement of claim, which he had previously admitted, after the respondent had closed his case, and that paragraph 3 of the proposed amendment sets up a new issue. For easier understanding of the pleadings, I reproduce hereunder paragraphs 4 and 13 – 16 of the statement of claim:
“4. The plaintiff avers that the land in dispute has the following boundaries:-
i.. On one side by Oke-Agunla Street, Iju.
ii. On another side by the building of Chief Alasoadura the Ausi of Iseri quarter, Iju.
iii. On another side by rock.
iv. On another side by the building of Chief Rufus Falodi the Eleyinmi of Oke-Iju quarter, Iju.
13. The plaintiff avers that sometimes in 1995, the defendant entered the land in dispute and cut the roots of some of the orange trees on the land in dispute.
14. The plaintiff avers that the plaintiff reported the said act of unlawful and malicious damage of the defendant to the Nigeria Police Station at Iju whereby the defendant was arrested by the Nigeria Police.
15. The plaintiff avers that thereafter the defendant instituted action against the plaintiff for an order to compel the plaintiff to remove three orange trees on the land of the defendant (plaintiff in the above suit)
at Iju/Ita-Ogbolu customary court in Suit No. IJ/ITCC/45/97.
16. The plaintiff avers that the Iju/Ita-Ogbolu (sic) on 1/7/97 dismissed the defendant’s action holding the land on which the orange trees were planted did not belong to the defendant’s father but to the plaintiff. The plaintiff pleads the proceedings in Suit IJ/ITCC/45/97.”
In paragraphs 1, 2, 3 and 7 of the original statement of defence, the appellant pleaded thus:
1. “The defendant is not in a position to admit or deny the averments contained in paragraphs 7, 8, 9, 10, 11, and 12 of the statement of claim and therefore put the plaintiff to the strictest proof thereof.
2. The defendant admit (sic) the averments contained in paragraphs 1, 2, 4, 15 and 16 of the statement of claim.
3. The defendant deny (sic) strongly the averments contained in paragraphs 5, 6, 13, 14, 17, 18, 19, 20 and 21 and will at the trial put the plaintiff to the strictest proof thereof.
7. The defendant avers that his father met some orange trees on the disputed land which the plaintiff claimed to have planted.”
By the proposed amendment he seeks to substitute the above paragraphs with the following:
1. The defendant admits paragraphs 1, 2 and 15 of the statement of claim.
2. The defendant denies paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20 and 21 of the statement of claim.
3. The defendant admits paragraph 3 of the statement of claim only to the extent that the land in dispute is situate at (sic) along Agunla Street, Iju in Akure North Local Government, but deny that the land in dispute has any survey plan known as No. AB/OD/92/802 and survey pillar, or any pillar at all. The land in dispute forms part of the land allocated to the defendant’s father by Oba Okiti over 60 years ago.
7. The defendant avers that the land granted to his father by Oba Okiti was farmland containing some cocoa trees, oranges and other crops.
The essence of pleadings is to compel the parties to define precisely the issues upon which the case is to be contested. It is to avoid the element of surprise by either party. See: Abubakar & Anor. Vs Joseph & Anor. (2008) 5 – 6 SC (Pt. II) 196 – 197; George Vs Dominion Flour Mills Ltd. (1963) 1 SC LRN 177; Emegokwe Vs Okadigbo C1973) 4 SC 113, It is also settled law that facts admitted require no further proof.
In the instant case, the admission by the defendant (appellant herein) of paragraphs 4 and 16 of the statement of claim means that no further proof was required in respect of those averments.
The admitted facts should be taken as established and should form one of the agreed facts of the case. See: Akaninwo Vs Nsirim (supra) at page 479 F – G; Chief Okparaeke Vs Egbuonu (1941) 7 WACA 53; Olubode Vs Oyesina (1977) 5 SC 79.
The only circumstance in which admission would not relieve the plaintiff of the burden of proof is where he seeks declaratory reliefs. A declaratory relief cannot be granted on the basis of admission. See: Dumez Nig. Ltd. Vs Nwakhoba (2008) 18 NWLR (1119) 361 @ 376 A – E; Metzger Vs Department of Health and Social Security (19770 3 ALL ER 444 at 451; Ogolo vs. Ogolo (2006) All FWLR (313) 1 @ 13 – 14; (2006) 5 NWLR (972) 163 @ 184 D – E.

It is also settled law that a party must be consistent in the case he presents in court. He must not blow hot and cold. See: Intercontinental Bank Ltd, Vs. Brifina Ltd. (2012) LPELR-SC.67/2004 delivered on 11/5/2012; Suberu vs. State (2010) 5 SCM 215. In the instant case, having regard to appellant’s admission of paragraphs 4 and 16 of his statement of claim, the respondent was entitled to presume that those averments required no further proof and proceed to establish his case on that basis i.e. lead evidence in respect of those facts upon which issues have been joined. The appellant did not join issues with him on the boundaries of the land in dispute nor on the proceedings before the customary court. This is where the lateness in filing the application becomes relevant. The undisputed fact, as borne out by the affidavit evidence is that Mr. Omotosho, the so-called “new counsel’, had in fact been appearing in the matter on behalf of the appellant for more than two years before this application was filed. He allowed the respondent to open and conclude his case before seeking to amend his pleadings. Had the application been brought at an earlier stage, before the respondent had closed his case, he would have had the opportunity of leading necessary evidence in rebuttal through his surveyor. He might have called additional witnesses. It is a notorious fact that it is very expensive to secure the attendance of a licensed surveyor to testify in respect of any matter in court. Furthermore, there is no averment in the affidavit in support of the application to explain the about-face by the appellant. What new material facts gave rise to the amendment sought? When did the facts become available? What slip, blunder, error or inadvertence is alleged? None of these questions can be answered by the scanty averments in the affidavit in support of the application. One cannot talk about mistake of counsel when the court is not told when the new facts were made available to him and why he failed to act immediately. I agree with the learned trial Judge that the proposed amendment of paragraph 2 of the statement of defence to deny what had previously been unequivocally admitted, amounts to springing a surprise on the respondent and he would suffer injustice thereby, which cannot be compensated by an award of costs. It does not show good faith.
With regard to the proposed amendment of paragraph 3 of the statement of defence, the appellant did not challenge paragraph 3 of the statement of claim in his original pleading. In paragraph 3 of the statement of claim the respondent gave particulars of survey pillar numbers and the details of the survey plan in respect of the land in dispute. Again, in the absence of any challenge to the averments contained therein, there was no burden on the respondent to go to extra lengths to prove same. By seeking to join issues with the respondent on the presence of survey pillars on the land and the existence of a survey plan, the appellant is challenging the very foundation of the respondent’s case. It raises the question as to whether indeed there are survey pillars on the land. This could necessitate a visit to the locus. The survey plan pleaded is also being challenged. I agree with the learned trial Judge that the respondent would have to reopen his case and recall his witness in order to react to this new challenge. I agree with the learned trial Judge that the proposed amendment amounts to raising a new issue, which the respondent did not have the opportunity of addressing while establishing his case. In my humble view there is no doubt that the respondent is taken by surprise by the proposed amendments.
The appellant seeks to add new paragraphs 8 – 20 to the statement of defence. In paragraphs 8 -12 of the proposed amendment,the appellant seeks to deny paragraphs 9 -12 of the statement of claim. In paragraph 1 of the original statement of defence he pleaded that he was not in a position to admit or deny the averments. What has changed since he made that averment? As observed earlier, there is no averment in the supporting affidavit stating which new facts emerged after the filing of the original statement of defence necessitating the proposed amendment. The fact that pleadings may be amended at any stage of the proceedings is not a blank cheque to amend pleadings at will and for no just cause. The appellant did not show how the amendment sought would assist the court in determining the real issues in controversy between the parties.
I am in complete agreement with the learned trial Judge that the only purpose the proposed amendment would serve would be to delay the hearing of the suit, which had been pending in court since October 1997. I find no reason to disturb the decision of the learned trial Judge.
In conclusion, I hold that the appeal lacks merit. It is hereby dismissed. The ruling of the High Court of Ondo State, Akure Judicial Division in Suit No. AK/270/97 delivered on 24/3/04 is accordingly upheld. Costs of N50,000.00 are awarded in favour of the respondent against the appellant.

CHINWE EUGENIA IYIZOBA J.C.A: I read in advance the lead judgment just delivered by my learned brother, KEKERE-EKUN JCA. I agree with his reasoning and conclusion. Although the case of Biode Pharmaceutical Ind. Ltd v. Adsell Nig. Ltd (1986) 5 NWLR (Pt 46) 1070 dealt with amendment of the statement of defence to introduce a counterclaim after the plaintiff had closed his case, the principle stated therein is equally applicable in this case where the appellant sought to amend his pleadings after the respondent had closed his case. Once the amendment introduces new issues which the plaintiff can no longer reply to, the amendment should normally not be allowed. The appellant’s case is more confounded by the fact that in the amendment he denied facts he had admitted in the original statement of defence without giving reasons for the somersault. I agree that the appeal lacks merit and ought to be dismissed. I also dismiss it. I abide by the order in the lead judgment as to costs.

MOORE A. A. ADUMEIN, J.C.A: I had the privilege of reading in draft the judgment just delivered by my learned brother – Kudirat Motonmori Olatokunbo Kekere-Ekun, JCA. His Lordship has meticulously discussed the issue for determination in this appeal. I completely agree with His Lordship’s reasoning and conclusion that this appeal lacks merit and it ought to be dismissed. I also dismiss it.
I abide by all the consequential orders in the lead judgment, including the order for costs.

Appearances

F. Omotosho Esq.,
Miss O. EdremodaFor Appellant

AND

Respondent’s counsel absent though served with hearing notice.For Respondent