ALHAJI AYINDE AWURE & ANOR v. ALHAJI ADISA ILEDU (YUSUF ADISA)
(2007)LCN/2449(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of June, 2007
CA/IL/50/2006
DEFINITION OF WORDS – “ACQUIESCENCE” MEANING OF THE WORD “ACQUIESCENCE”
“In its simplest form, acquiescence means conduct from which it can be inferred that a person has agreed to a certain state of affairs affecting his legal rights. Acquiescence therefore operates by way of estoppel.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
PRACTICE AND PROCEDURE – AMENDMENT OF PLEADINGS: WHETHER THE TRAIL COURT HAS THE DISCRETION TO ORDER AMENDMENT OF PLEADINGS AT ANY STAGE OF THE PROCEEDINGS BEFORE JUDGMENT
“It is settled law, and both counsel agree, that the trial courts are allowed free hand to exercise their discretion to amend any pleading anytime before judgment provided no new issues have been introduced thereby. The amendment sought should not be allowed to introduce different case from that which is already before the court whether in form or in substance. Authorities are a bound on this point. Whatever happens I hold the trial court should not be lightly prevented from exercising its discretionary power in allowing the amendments of pleadings in favour of the defence or the plaintiffs. I could have described that discretion of the trial court as unfettered if not because of the requirements of not to cause embarrassment, surprise and injustice to the other party. It was beautifully put thus:- “An amendment of pleadings for the purpose of determining the real questions in controversy between the parties ought to be allowed unless such amendment will entail injustice or surprise or embarrassment to the other party” Nabson Ltd. v. Mobil Oil supra at p. 227. So generally, the purpose of amendment is to enable the court deciding the matter, to decide the rights of the parties and not to punish them for mistake they might make after all, the purpose of amendment is to do substantial justice between the parties. Where there is evidence on record to support the amendment of pleadings, amendment should be allowed at any stage of trial even in the Supreme Court. It can be allowed even after the parties have closed calling evidence, subject to the exceptions mentioned earlier. See the following cases; Ojah v. Ogboni supra; Okafor v. Ikeanyi (1979) 3 and 4 SC 99; Aboyeji v. Momoh (1994) 4 SCNJ (Pt. 11) 302, (1994) 4 NWLR (Pt.341) 646 and Loutfi v. Czarnikow Ltd. (1952) 2 All E.R. 823 – 824. See also the case of Ojah v. Ogboni & Ors. (1976) 4 S.C. 69. In Oguntimehin v. Gubere and Anor. (1964) 1 All NLR p. 176 the Supreme Court upheld an amendment of pleadings after close of evidence and made the following observations on page 180: “In the present case either party called his surveyors at the start of the trial, and both parties agreed on what was in issue between them by reference to their plans. In effect they proceeding with the contest as if the plaintiffs’ pleading had been what it became after the amendment; all that the amendment did was to write down what the defendant had known all along to be the plaintiffs’ case. The amendment did not take him by surprise, and he has no just cause for complain”. Per Madaarikan, JSC. In my judgment, I will hold that the trial court was justified in ordering the amendment to some extent. But he was not at all justified in refusing the appellant’s similar opportunity to adduce witness or witnesses and tender document to rebut and debunk the stance taken by the defence in paragraphs 6, 7 and 8 of the amended statement of defence. There is ample evidence and a plethora of authorities to back it up, that the defence did not plead those special defence of laches and acquiescence before the close of the plaintiff’s case. If the court should allow it, as it did, in this case, the plaintiffs must be given an opportunity to rebut or respond to it if they can. This new defence was not originally pleaded in the record. It actually intended to introduce a new cause of action and overreach the plaintiffs. It is clear that there is no way the plaintiffs could have been capable at that stage to traverse or debunk it. In the case of Ndinwa v. Nwaebo supra at page 1909, my learned brother Rowland, JCA has said it all when he made the following statement: See: Anyaorah v. Anyaorah (2001) F.W.L.R. (Pt. 73) 178 at p. 208; (2001) 7 NWLR (Pt. 711) 158. It is submitted that failure by the defence to plead the same before the close of the plaintiff’s case is fatal to the defence case as same should not be raised without the plaintiffs having an opportunity of reacting to it. In Ndimva v. Nwaebo (2001) F.W.L.R. (Pt. 51) 1903 at 1909; (2001) 6 NWLR (Pt. 709) 311, the defendant after the plaintiffs had closed their case called a witness and thereafter brought a motion to amend his statement of defence. The application was refused. Being dissatisfied with this decision the defendant appeal to the Court of Appeal and Rowland, JCA has this to say: “In the case in hand, it is manifest from the record that the amendment sought by the appellant herein after the commencement of the appellant’s case was injurious to the case of the respondents. It sought to introduce a new cause of action, overreach and prejudicial to the respondents … ” A perusal of the document sought to be substituted raised profound issues which the respondents could not have been expected to properly traverse and lead evidence on. There ought to be an end to litigation. It is also manifest from the record that the appellant took the respondents by surprise, therefore the trial court was right in exercising its discretion against a grant of the amendment sought.” The most annoying thing was for the learned trial Judge to ignore the just resistance and opposition of the learned plaintiff’s counsel in allowing the amendment of the statement of defence and to disallow the plaintiffs to call further evidence to debunk the allegations in the amended statement of defence. This is a clear injustice, with due respect to both learned trial Judge and the respondents counsel. Has the trial court allowed the amendment of the statement of defence and allowed the plaintiffs to adduce evidence to counter the amended paragraphs in the amended statement of defence and later decided against the appellants, one would not have attempted to disturb the decision of the lower court. The paragraphs in the amended statement of defence are ridiculous and illegal. The most amazing thing is how the learned trial Judge allowed the said unfair and illegal amendment weighs heavily in the mind of the trial Judge that beclouded his vision and forced him to arrive at unjust decision on page 127 of the record of proceedings. How can any right thinking legal mind say that the discretion of the learned trial Judge was exercised judiciously and judicially, a Judge does not have unfettered discretion to order an amendment to the pleading which went against the interest of the other party unjustifiably. The plaintiffs were unjustifiably denied their right to fair hearing, that being the case, the judgment dished out by the trial court is tainted, vitiated and defective. I refer to Samuel Jimoh Eshemake v. Chief Napoleon Obinije & Ors. (2005) All F.W.L.R. (Pt. 289) 1270/1291 where it was held thus: ” … a court or tribunal must always at all times and in all odds balance its discretionary power to refuse or allow one form of an act or the other in its duty to endeavor to give to the parties a fair hearing on the merit of the case, provided always that no injustice is thereby caused any of the parties.”PER MUHAMMAD MUNTAKA-COOMASSIE J.C.A.
PRACTICE AND PROCEDURE – AMENDMENT OF PLEADINGS: THE AIM OF AMENDMENT OF PLEADINGS
“…the aim of amending pleadings in general is to enable the court to decide the rights of the parties, and not to punish them for mistakes made in the conduct of their cases by deciding otherwise than in accordance with their rights. The age of technicalities is now history. Substantial justice is the order of the day. So it is either you get moving on the train of justice or you get left behind, with the necklace of technicalities wrapped around your neck to keep you warm company or, on the other hand, to choke you. It has long been settled that: “The rule of conduct of courts in matters relating to amendments of pleadings is that however careless or negligent the first omission to ask for amendment may have been or however late the application there, the amendment should be allowed by the court either on its own motion or on the application of a party to the proceedings if such amendment can be made without injustice to opposite party. Further, there cannot be injustice if the opposite party can be compensated by the award in his favour of costs occasioned by the amendment. This is for the reason that courts do not exist for the purpose of punishing bad taste. The duty of courts is to determine the real issues in controversy as they appear on the evidence although the conduct of the case on behalf of the litigant may have been slipshod or even cavalier.” See Okeowo v. Migliore (1979) 11 SC 138 at 199-200 and Ikyernum v. Iorkumbur (2002) FWLR (Pt. 110) 1908, (2002) 11 NWLR (Pt. 777) 52.”PER JUMMAI HANNATU SANKEY J.C.A.
COURT – DUTY OF THE DUTY: WHETHER IT IS THE DUTY OF THE JUDGE TO ALWAYS BE IN CONTROL OF THE PROCEEDINGS
“A Judge must at all times be in control of the proceedings of her court. It will be abdicating in her responsibility to allow counsel on one side to take over the court, bestride the court like a colossus and dictate the pace.” PER JUMMAI HANNATU SANKEY J.C.A.
JUSTICES
MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI AYINDE AWURE
2. ALHAJI MALOMO MOHAMMED
(For themselves and on behalf
of Masudo Family) Appellant(s)
AND
ALHAJI ADISA ILEDU (YUSUF ADISA) Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Ilorin, Kwara State delivered by the Honourable Justice M. A. Folayan on the 13th day of June, 2005.
The appellants had claimed the following reliefs at the lower court by writ of summons filed on 7/2/2003:
“1. Declaration of title over the piece or parcel of land on which defendant is encroaching upon.
2. Perpetual injunction restraining the defendant by himself, his agents, servants, successors, privies or workers from further encroaching or trespassing on the plaintiff’s family land at Masudo Village, University of Ilorin Road”
The appellants pleaded the amended statement of claim filed on 4/3/2003 while the respondent’s statement of defence and counterclaim as well as amended statement of defence and counter-claim were filed on 9/5/2003 and 21/2/2004 respectively.
The appellants filed a reply to the amended statement of defence on 23/9/2004.
The 1st and 2nd appellants gave evidence and called a surveyor who surveyed the land in dispute as their witness. The respondent gave evidence and called five witnesses.
There is no dispute according to the evidence on both sides that the land belonged to the Masudo family. There is also no contention about the identity of the land in dispute. It is the evidence of PW 1 that sometimes in 2002 they decided to visit their land and they instructed their lawyer to cause a notice board to be put on the land that anybody having property on the land should come and see them. On a second visit, they met the respondent on the land and told him if he had bought the land from any member of their family he should submit all his title documents to their lawyer but up to the time of giving evidence the respondent has not submitted any title document of the land of Masudo family on which he had encroached or trespassed.
The 2nd appellant admitted that he and 1st appellant had been living in Lagos and 3rd plaintiff a transporter has been living in Ilorin but denied that the 3rd plaintiff had been representing the interest of the family on the land since 1976. He would not know when 1st appellant and 3rd plaintiff started representing the family interest on the land as he only knew he joined them as head of his own unit in 2002. That all the land sold from time immemorial have always been signed by the three units of the family.
The respondent filed a defence and counter-claim which was later amended wherein he admitted appellants’ family to be the customary owners of the land in dispute but denied that he encroached on the said land. He alleged that he bought the land from the 3rd plaintiff who represented the family. The land agreement was tendered as exh. D1 and the vendor’s affidavit was tendered as exh. D2 through the respondent’s son DW3. Respondent also pleaded the purchase receipt. He further claimed that after the purchase, members of the appellants’ family demanded for more money for the land already transferred to him and he paid the additional sum of N30,000.00 due to pressure put to bear on him. The respondents line of defence is that he bought the land from one of the principal members of the Masudo family – the 3rd plaintiff. According to him, there was no trouble again until 2002 when the appellants came back for more money, which he refused to pay. He claimed he had put the land into positive use for years.
He also counter-claimed against the appellants in respect of a land immediately after the main gate (from University main gate) by the right immediately after the Biological Garden measuring 31.295 hectres. He alleged that the land belongs to Sikiti family of Tanke Oke Ode, Ilorin who share boundary with the appellants’ family.
After the appellants had closed their case and the respondent had called two witnesses, the respondent on 31st May, 2004 brought a motion on notice to amend his statement of defence and counter-claim which the Appellants opposed on the grounds that it was made malafide and that the appellants will not have any opportunity to re-open their case to rebut the new issues been raised in the amended statement of defence. The court ruled against the appellants’ objection and allowed the amendment sought by the defence.
The appellants on 22nd September, 2004 moved a motion dated 2/9/2004 and filed on 16/9/2004 praying the court to allow them file a consequential reply to the amended statement of defence filed by the respondent. Though respondent’s counsel at the initial stage raised objection to this but he later withdrew his objection and the court granted the said application.
After the respondent had closed his case, the appellants’ counsel filed a motion to call additional witnesses which was moved on 14th January, 2005, and opposed by the respondent. The court in its ruling of 31st January, 2005 refused the application.
The brief facts of the appellants’ case who sued in a representative capacity is that the land in dispute situate at Masudo Village along University of Ilorin Road belongs to their family known and called Masudo family. It was the contention of the appellants that the respondent did not buy the land in dispute from their family and that no individual member of the family (Masudo) could unilaterally sell family land Without the knowledge and consent of other family members.
Contrary to the appellants, the respondent by his pleading and oral testimony asserted that he bought the portion in question from 3rd plaintiff, Kawu Ora, (the said 3rd plaintiff did not appeal against the judgment of the trial court) who acted as principal member and agent of the appellants’ family and he was given receipt for the land.
The respondent further stated that the appellants later enjoined him to pay again for the land in dispute if he wanted to retain the portion. He testified that he reluctantly paid the agreed sum and peace was maintained until 2002 when the appellants approached him for more money on the land under the pretence that the new village head, called Oba, was appointed. He refused to pay and he was sued. The lower court dismissed the appellants’ claim hence this appeal.
Learned respondent’s counsel raised a preliminary objection to grounds 1,3,5,6,8 & 10 of the appellants’ grounds of appeal and urged this court to strike them out for duplicity, vagueness being repetitive and each containing more than one complaint. He cited Aderounmu v. Olowu (2000) 4 NWLR (Pt. 652) pg. 253.
Learned appellants’ counsel replied that the attack is baseless and that nothing in the grounds of appeal is couched in a way to cause embarrassment to the respondent. In my view, a close examination of the grounds of appeal does not show any irregularity in form at all. They are clear and lucid and in my view convey the complaints of the appellants. The preliminary objection hereby is dismissed.
The appellants’ counsel identified eight issues for determination as set out below:
“1. Whether the learned trial Judge was right to have allowed an amendment sought in this case on material issues and evidence to be led on the same by the defence after the close of plaintiff’s case without granting corresponding opportunity to the plaintiffs? (Grounds 1, 3 and 6)
2. Whether the unilateral sale of family land by the 3rd plaintiff to the defendant which was a void act could be subsequently ratified by the plaintiffs’ family with or without the head of the family. (Ground 2)
3. Whether the learned trial Judge was not in error when he laid undue emphasis on the failure of the 3rd plaintiff to give evidence in this case having regards to the circumstances of this case. (Ground 4).
4. Whether the learned trial Judge was not in error to have allowed evidence of family ratification of the earlier sales of family land by 3rd plaintiff to be led when such special defence was not pleaded? (Ground 5).
5. Whether the learned trial Judge was right by holding that issues were not joined by plaintiffs with the defendant as regards paragraphs 5 and 6 of the statement of defence at the close of pleadings? (Ground 7).
6. Whether the learned trial Judge was not in error when he rejected the evidence of the 1st plaintiff (PW3) that he met the defendant in year 2002 when this piece of evidence was not challenged under cross-examination?
(Ground 8)
7. Whether the court below made a proper evaluation of the evidence before it? (Grounds 3, 6 & 9).
8. Whether the trial Judge was right to have disallowed the plaintiffs from re-opening their case after been granted leave to file a reply to the amended statement of defence? (Ground 10)”
Whereas the respondent identified three issues for determination also set down:
“1. Whether the discretionary power of the Honourable trial Court was exercised according to the law and the fact of this matter:
(a) When the defendant was allowed to amend his statement of defence after calling two defence witnesses?
(b) When the plaintiffs/appellants were refused to re-open the matter after the close of the parties evidence?
2. Whether the plaintiffs/appellants were refused to re-open material and credible evidence to convince the Honourable trial Court that the ratification or fresh transfer of the land in dispute was carried out by unauthorized members of Masudo family or title on the defendant/respondent?
3. Whether the action is statute-barred?”
It is my belief that the Justice of this appeal can be met by an examination of issues 1 and 2 as identified by the appellants’ counsel.
The other issues to my mind are mere incidents or offshoot of these first two issues.
Issue 1 – There are two heads to this issue. One is the question of whether the learned trial Judge was right in granting an amendment to the defendant after the close of the plaintiffs’ case at the lower court.
Learned appellants’ counsel conceded that amendment can be granted at any stage in the proceedings before judgment but that in this case when the amendment was brought and it caused injustice to the plaintiff and should have been refused by the lower court. He argued that the additions to paragraphs 6, 7 and 8 of the amended statement of defence introduced new issues of laches and acquiescence and limitation of action to which the plaintiffs who had closed their case earlier could not react to or rebut during cross-examination. He argued that the new issues raised were never used to cross-examine the plaintiffs or their witnesses. He argued that the failure of the defendant to plead these defences before close of plaintiffs’ case is fatal to their defence. He cited Anmorah v. Anyaorah (2001) FWLR (Pt. 73) pg. 178 at pg. 208, (2001) 7 NWLR (Pt. 711) 158; Ndinwa v. Nwaebo (2001) FWLR (Pt. 51) pg. 1903 at 1909, (2001) 6 NWLR (Pt. 709) 311; Ojobaro v. Kuku (1986) 3 NWLR (Pt. 31) pg. 697.
In reply, learned respondent’s counsel argued on this point that since the amendment did not entail injustice or surprise or embarrassment to the other party it was lightly granted by the learned trial Judge. He cited Nabson Ltd. v. Mobile Oil (1995) 7 SCNJ 267 at 277, (1995) 7 NWLR (Pt. 407) 254; Bank of Baroda v. Iyalabani (2002) 7 SCNJ 287 at 308, (2002) 13 NWLR (Pt. 785) 551. He also submitted that appellants’ argument that they could not challenge the respondent’s case after close of their case is untenable. He argued that the plaintiff is entitled to lead evidence through his own witnesses or by cross-examination of the defendants’ witnesses to controvert a fact pleaded by the defence. He cited Gaji v. Paye (2003) 5 SC 53 at 61, (2003) 8 NWLR (Pt. 823) 583. He further submitted that paragraphs 5, 6, 7, 8(a), (b), (c) & (d) of the amended statement of defence are not special defence nor new issues as rightly held by the learned trial Judge.
Both counsels are agreed in my view that generally an amendment can be granted to pleadings any time before judgment as long as it would not perpetrate injustice, overreach the other side or embarrass them. This is moreso desirable if the amendment would bring forward for adjudication all the issues in controversy between the parties, thus serving the overall interest of justice and the other side can be compensated in costs for any delay. See Nwankwo v. Nwankwo (1993) 5 NWLR (Pt. 293) pg. 281 at 294; Oredeyin v. Arowolo (1989) 4 NWLR (Pt. 114) pg. 172; First Bank (Nig.) Plc v. May Medical Clinics and Diagnostic Centre Ltd. (2001) SCNJ 1 at 15-16 or (2001) 9 NWLR (Pt. 717) pg. 28; Chief Ojah v. Chief Ogboni (1976) 4 SC pg. 69 at 77; Gen. Yakubu Gowon v. Mrs. Edith Ike-Okongwu (2003) 1 SCNJ 453, (2003) 6 NWLR (Pt. 815) 38.
The question is, was the discretion to grant an amendment properly exercised in this case by the learned trial Judge? The learned trial Judge in the ruling on this matter held as follows:
“… it is pertinent to look at the paragraphs for which is sought amendment and see whether new issues or different case has been formulated from that which is already before the court or the amendment is capable of substantially altering the case before the court whether in form or in substance.”
For clarity, the relevant paragraphs 5, 6, 7 & 8 of the amended statement of defence with the amendments underlined are set out below:
“5. The defendant further denies the allegation that he encroaches or trespasses on the land of the plaintiff but states that with knowledge of all other plaintiffs, the 3rd plaintiff transferred some plots of land to him for consideration outside the portion of land referred to in paragraphs 1,2,3 and 4 above. Purchase receipt for the said land and other land transferred by the 3rd plaintiff is/are hereby pleaded.
6. That prior to the visit in year 2002, the first and second plaintiffs with some people, the 1st and 2nd plaintiff described as members of the family, demanded for more money for the land already transferred to the defendant and the defendant refused to pay them but later pressure was brought to bear on the defendant and he gave the plaintiffs total sum of N30, 000. 00 to keep peace but made it clear to them that the payment was not a review of the transaction referred to in paragraph 5 above, and peace was maintained until sometime in April 2002 when the plaintiff came back for more money.
7. The defendant further pleads that the plots of land transferred to him was done in accordance with custom and tradition of the parties. The defendant shall rely on the said native laws and equitable defences available to him.
8. The defendant further states that the plots of land transferred to him is distinct and clearly marked out from Sikiti family and referred to in paragraphs 1,2,3 and 4 and the defendant has since put the said land to positive use for years by:
a. building access roads from the main (Unilorin) road to the Mosque opposite the Bekadems sometime in 1980.
b. transferred some plots to some individuals who have built houses on the aforesaid land while others were under construction. The documents relating to the transfer and the improvement are hereby pleaded.
c. fencing the whole land, paragraph 6 above, with cement blocks i.e. about three feet height.
d. maintaining the access road (paragraph 8(a) above) to the Mosque and other roads constructed within the aforesaid land every year.
(Pages 24 – 26 of the record of proceedings)
The learned trial Judge had the following opinion on this issue on pages 94 – 95 of the records:
“1. Paragraph lib) sought to be amended added to the original statement of defence that the 1st, 2nd and 3rd defendants were described as members of the family and he (defendant) gave them additional N30,000.00 instead of N48,000.00 contained in the original statement of defence.
2. Paragraph 7 added – ‘The defendant shall rely on the said native laws and equitable defences available to him”.
3. Al paragraph 8 of the original statement of defence, the defendant stated that he has since put the land to positive use for years and in the proposed amendment he adds that he constructed and maintains a road from the main road to the land. He has transferred some of the plots to some other persons who have built houses on it and he has fenced the whole land.
I am of the view that none of the amendment above is bringing in any new issue or overreaching the plaintiff.
It is already in evidence before the court that the plaintiffs are members of Masudo family. I refer to paragraph 1 of the amended statement of claim. The amendment sought at paragraph 7 that the defendant shall rely on native law and equitable defences available is in line with 1 and 2 of the amended statement of claim in which the plaintiff’s claimed they are customary owners of the land which was transferred to them by virtue of succession. So I held that these paragraphs, if the amendment sought is granted cannot be overreaching the plaintiff or cause any injury or injustice to him.”
In my view, and I am in complete agreement with the learned trial Judge, the amendment merely amplified and sought to give more details of the case already put forward by the patties. The 1st P.W. confirmed under cross-examination that a gate and fence was on the land and that the respondent had already sold a portion of the land to a 3rd party and a Mosque had been built on it. The 2nd P.W. the surveyor admitted that there were beacons on the land and a fence of three coaches of blocks. PW.3 – the 1st plaintiff now appellant also confirmed the existence of fence which they removed and a fence which they were advised not to destroy. The above was already in evidence before the amendment was granted. Amendment may be granted to bring pleading in line with the defence. See Kalu Igwe v. Okuwa Kalu (2002) 2 SCNJ 126, (2002) 14 NWLR (Pt.787) 435.
The appellants’ complaint that they had closed their case to my mind is of no moment since they could easily cross-examine the respondent’s witnesses called as a result of amendment wherein the new issue of laches and acquiescence was purportedly introduced for the first time. However, a look at the old statement of defence shows that the respondent had stated that he had put the land in dispute to “positive use for years”. The amendment only itemized the use he had put the land including improvements he had made on the land since 1980. In my view, the amplification or addition of more details to the respondent’s pleading could not surprise or embarrass or do injustice to the case of the appellants at the lower court to warrant the lower court’s refusal of the application for amendment which the said court rightly granted. This is moreso when the facts were already in evidence.
Moreover the equitable defence of laches and acquiescence which the amended statement of defence purportedly “introduced” need not be stated in any special form.
Having said in the original statement of defence that the respondent had put the land to positive use for years” it was enough to put the appellants on notice. It is not necessary to plead a defence based on an equitable doctrine so long as it is stated in such a manner as to show that it is relied upon. See NBCI v. Integrated Gas (Nig.) Ltd (2005) 1 SC (Pt. 1) pg. 135 at 141; (2005) 4 NWLR (Pt. 916) 617. This leg of the issue is resolved against the appellants.
The second leg of this issue is the appellants’ complaint that the learned trial Judge fell into error when he prevented the appellants from re-opening their case by calling additional witnesses and to tender documents in rebuttal of the new case made out by the respondent.
Learned appellants’ counsel argued that the failure of the learned trial Judge to allow the appellants to call additional witnesses and tender new documents has led to the appellants’ being denied their right to fair hearing, thus the judgment delivered is defective and thereby vitiated. He cited Samuel Jimoh Eshenake v. Chief Napoleon Gbinije & Ors. (2005) All FWLR (Pt. 289) pg. 1270 at 1291.
Learned respondent’s counsel argued that the court has the discretion to refuse an application and that each application must be decided on its own merit. He submitted that the Supreme Court in A.-G., Federation v. Alkali (1972) 12 SC 29 laid down some principles for judicious exercise of the courts power in regard to the calling of additional witnesses. He listed them as enunciated by the Supreme Court as follows:
“(a) The evidence sought to be adduced must be such that a diligent person cannot obtain at the trial.
(b) The evidence if admitted would have important effect on the whole case.
(c) The evidence ex-facie must be credible.
Pages 116 – 119 of the records contains the ruling of the lower court on this issue. It is quite lengthy but the justice of this case demands that it be highlighted in order to appreciate the reasoning of the learned trial Judge.
“Even if the existence of the document was not known at the time the plaintiff was giving evidence, the plaintiffs’ counsel sought for adjournment on 22/7/04 to get the document and confront DW3 with it during cross-examination and the adjournment was granted.
He thereafter brought an application to reply the paragraph 5 of the amended statement of defence which was granted, so to now come with the complaint that they didn’t know of the existence of the said document is not true and cannot now be a genuine and reasonable basis for re-opening the plaintiff’s case after it had been adjourned three times at the instance of the plaintiffs for such application and the case finally adjourned for address after the plaintiffs has satisfied themselves on the said paragraph 5 of the amended statement of defence. I cannot but agree with the defence counsel’s view that this application is a ploy to patch up the plaintiffs’ case and also to delay the case.”
(See page 119 of the record of proceedings)
I cannot fault the reasoning of the learned trial Judge and could not have put matters better myself. I agree absolutely with the learned trial Judge that the appellants had used up all the opportunities allowed to them by the court. The issue of lack of fair hearing in the circumstances of this case just does not arise. A cry by a party that he/she had been denied fair hearing is not a battle cry behind which an appellate court should automatically fall. It calls our immediate attention, but, in our adversarial system of justice, justice is a three way street. It must flow to society, the plaintiff and the defendant in equal parts. It is not the exclusive preserve of any party. Every application must be treated on its own merit. In the exercise of its judicial discretion, the court has to apply its mind, not to any hypothetical set of facts but to the material before it, and if either party wishes to invoke the discretionary power of the court in his favour, it is for him to lay a basis for its exercise. The affidavit in support of the application to call additional witness, must indicate the importance of the document and the witness sought to be called to the merits of the appellants’ case. All the 2nd appellant said in the affidavit was that they were taken by surprise because the respondent who tendered an agreement drawn up by a practicing lawyer rather than the receipt which he had pleaded. Paragraph 8 of the affidavit, indicated their intention to tender a document obtained at the law school the existence of which was unknown to them while they were proving their case against the respondent.
A close look by the trial Judge at the appellants’ application to call additional witnesses showed clearly that in view of the antecedent proceedings in this case, it was not one which the courts in its discretion should allow.
In Samuel Jimoh Eshenake v. Chief Gbinije (2005) All FWLR pg. 289 pg. 1270 at 1291 the court held-
“a court or Tribunal must always at all times and in all odds balance its discretionary power to refuse or allow one form of an act or the other in its duty to endeavour to give to the parties a fair hearing on the merit of the case, provided always that no injustice is thereby caused any of the parties.”
This court is a court of substantial justice. In my view no injustice was caused to the appellants in this case moreso as the learned trial Judge in the judgment on page 132 of the record made little or nothing of the exh. D1 sought to be rebutted by the appellants.
Thus there was in substance no miscarriage of justice caused by the refusal of the trial Judge to grant the application to call additional witnesses. The witness that was refused was the witness from the law school to tender evidence to show that the lawyer who drew up exh. D1 – the agreement could not have been a lawyer in 1977. That agreement was declared void by the learned trial Judge since the principal members of the family were not signatories to it. Let us even assume that the learned trial Judge was in error. Did the error cause substantial injury to the appellants’ case to occasion miscarriage of justice? Error of the lower court is ineffectual when miscarriage of justice has not been occasioned by it in the way it has affected the result of adjudication. See Kraus Thompson Organization Ltd. v. University of Calabar (2004) 4 SCNJ 121; (2004) 9 NWLR (Pt.879) 631. Thus the error of the lower court if it was an error indeed in allowing the amendment to the respondent’s pleadings will only lead to allowing the appeal if it is substantial and has occasioned miscarriage of justice. See: (1) John Owhonda v. Ekpechi (2003) 9 SCNJ 1, (2003) 11 NWLR (Pt. 849) 326; Engr. Osolu v. Engr. Osolu (2003) 6 SCNJ 162; (2003) 11 NWLR (Pt. 832) 608. The judgment of the lower court giving title consideration to exh. D1 thus did not occasion miscarriage of justice in that regard. See Odutola v. Oderinde (2004) 5 SCNJ 285, (2004) 12 NWLR (Pt. 888) 574; Onakoya v. F.R.N. (2002) 6 SCNJ 404, (2002) 11 NWLR (Pt. 779) 595. This aspect of the issue is also resolved against the appellants. Issue two is whether the appellants had established at the lower court credible evidence to show that there was no subsequent ratification of the original sale of the land in dispute and that there was no fresh conferment of valid title on the respondent.
Learned appellants’ counsel argued that from the evidence led by both parties, it is undisputed that the applicants family is made up of three units of which each of the applicants head its own. It is also not challenged that none of the unit or head of a unit can sell or dispose-off any portion of the appellant’s family land without the consent and express approval of the others including the Baale who is the overall head. He submitted that sale of the said land in dispute by 3rd plaintiff who as at 1976 was not even the head of his own unit (see lines 27 and 28 of page 78 of the record) is not voidable but void. It is trite that sale of family land by an ordinary member or principal member without the consent of the head of family is void ab initio. He cited Lukan v. Ogunsusi (1972) 1 NMLR 3 at pg. 16; Usiobaifo v. Usiobaifo (2005) All FWLR (Pt. 250) 131 at pg. 149, (2005) 3 NWLR (Pt. 913) 665; Maya v. Oshuntokun (2001) FWLR (Pt. 80) 1777 at 1803, (2001) 11 NWLR (Pt.723) 62; Akpadiaha v. Owo (2001) FWLR (Pt. 57) pg. 940 at pg. 961.
He further submitted that a void sale of family property cannot be subsequently ratified by other members since you cannot build something on nothing He cited Skenconsult v. Ukey (1981) 1 SC 6. Furthermore, he argued that if there was ratification by ordinary members of the family without the family head, the sale would still be void. He also submitted that there was no cogent evidence on record to show that the Baale as at then who was the head of the Masudo family was present at the meeting to ratify the sale. He argued that there was contradiction in the evidence of both parties as to whether or not the Baale was present at the so-called ratification meeting in which the respondent paid again the sum of N30,000.00. He submitted that the sale of land to the respondent was void ab initio. He cited Mcfoy v. U.A.C. (1961) 3 All ER 1169; Joel Ojo v. Gabriel Awe (1962) WNLR pg. 254 at 256; L. L. Alli v. Ikesubiala (1985) 1 NWLR (Pt. 4) pg. 630. He concluded by arguing that if indeed he got an agreement with the 3rd plaintiff when the land was first sold to him, he should have insisted on an agreement with the principal or heads of the three units signing same when the sale was ratified in 2002. He argued that the failure of the respondent to do so shows he did not deal with the family head.
In reply, learned respondent’s counsel argued that the trial Court agreed that the transfer by the 3rd plaintiff was bad and ineffective but that subsequent agreement by the Masudo family and their acceptance of the extra consideration amounts to fresh transfer or ratification of the earlier ineffective transfer. He opined that the respondent’s evidence on page 15 of the records to the effect that he was called to a family meeting of the Masudo where they demanded the additional sum of N30,000 which he paid to the family through the 3rd plaintiff. He was not the only person who was called to that meeting to pay over money to the family. He even went as far as to track down the person presented to him as family head on his farm one Akano – the Mogaji of Masudo who accepted the fact that the respondent had paid extra money and promised that the family will leave him in peace on the land. He argued that this evidence of the respondent was not seriously debunked under cross-examination and that the trial court was right in placing reliance on it and to use it as the basis of her judgment. Learned respondent’s counsel also submitted that the learned trial Judge was right in concluding in the judgment on pages 123 and 131 of the records that the failure of the appellants to call the 3rd plaintiff to debunk the evidence of the respondent was fatal to their case. He argued that the respondent testified that two of the sub-heads of Masudo family: Awure and Kawu Ora, 1st and 2nd appellants were physically present when extra money was demanded by the family and Akano and Okanla were there. Okanla the family head is called Daudo and Akano the ‘Mogaji’ of Masudo who was in charge of the land. 3rd plaintiff Kawu Ora, who is not appealing against the judgment, and Akano and Okanla represented the Bale on the land. See pages 85 and 124 of the record of proceedings. He therefore submitted that necessary members of the family were present and the sale by implication was approved by the family. He cited Arabambi v. A.B. Ind. Ltd. (2005) 12 SC (Pt. 1) pg. 60 at pg. 81-82, (2005) 19 NWLR (Pt. 959) 1. He urged this court to agree with the lower court that the subsequent transfer by the members of the family is valid and proper in accordance with customary law. He cited Igbokwe v. Nlemchi (1996) 2 NWLR (Pt. 429) pg. 185 at 200.
The evidence before the lower court not seriously disputed and accepted is that the first sale of the Masudo family land to the respondent is void ab initio. The lower court made this finding and conclusion on page 131 of the records in the judgment. The law is that family land can only be sold by the family head or Mogaji with the concurrence of principal members of the family. See Alhaji Adeleke v. Iyanda (2001) 6 SCNJ 101, (2001) 13 NWLR (Pt. 729) 1; Sunday Temile v. Jemide Ebigbeyi Awani (2001) 6 SCNJ 190, (2001) 12 NWLR (Pt. 728) 726.
The law is also that where there is alienation of family land by sale as in this case” the family head and principal members must concur therein. The transaction is void where these persons are not involved. These persons must act in a representative rather than personal capacity. Let us assume that the 3rd plaintiff and some family members concurred in the original sale to the respondent while expressing themselves to be acting on behalf of the family, the sale is valid but voidable at the instance of members of the family whose consent was necessary but not obtained. See Alhaji Odekilekun v. Mrs. Hassan (1997) 12 SCNJ 114, (1997) 12 NWLR (Pt. 531) 56; Daniel Igwe Uche v. Jonah Eke (1998) 7 SCNJ 1. (1998) 9 NWLR (Pt. 564) 24: Babayelu v. Ashamu (1998) 7 SCNJ 158, (1998) 9 NWLR (Pt. 567) 546.
On pages 131-132 of the records, the learned trial Judge accepted the evidence that there was a form of revalidation of the void sale by the members of the Masudo family by their acceptance of the N30,000.00 given to the family prior to 2002 by the respondent.
The learned trial Judge also on page 132 held that since the original sale was void, the respondent was in illegal possession and his length of “illegal” though undisturbed possession did not affect the decision.
The court based the decision on the issue of the revalidation made by family members to the original sale. The court concluded-
“Having considered the totality of the evidence before me and all the considered views above I hold that the plaintiff has not establish their claim of reclaiming the disputed land from the defendant as this will amount to aiding injustice being perpetrated by land owners who would have legally sold their land when it was cheap and realizing the current high prices would want to reclaim and resell again. The plaintiffs’ case is therefore dismissed.”
We have established earlier my Lords that the onus is on the respondent in this case to prove a valid sale given the position of customary land law.
The respondent put up two defences. One, that he bought the land properly ab initio though proper representatives of the family.
Secondly that the family with its principal members validated the sale sometime prior to 2002 by accepting his further payment of N30,000.00.
Let me say right off that I agree with the learned trial Judge that the original transaction was void ab initio and confers no legal title on the respondent. The evidence of the respondent regarding the 1st transaction does not support the claim that it met the requirements of customary law. Also the plea of laches and acquiescence is not normally acceptable under customary law as the length of possession of land cannot confer title. See Ajao v. Obele (2005) 5 NWLR (Pt. 918) pg. 400. Since the original transaction was void, he had no legal interest. However, being a bona fide purchaser for value of family land for consideration, he had acquired equitable interest in the land.
The appellants’ counsel held the view that the subsequent ratification of the void transaction by the family was not properly pleaded at the lower court and this had done injury to the respondent’s case.
In reply, the respondent’s counsel argued that the pleading of the respondent had satisfied and complied with the rules. He cited Ito v. Epe (2000) 2 SCNJ 91 at 111-112, (2000) 3 NWLR (Pt.650) 678 on this point. I have no doubt on reading the records that the respondent made the issue of the revalidation by the family as the pivot of his defence. He pleaded and led evidence in aid of it. See paragraph 6 of the amended statement of defence and evidence of DW4 and DW5 and the evidence of the respondent on pages 108109 of the records.
Let us look at the facts of this case vis-a-vis the position of the law. In an action for declaration of title to land bought by the appellants in this case, upon proof or admission by the defendant now respondent (in paragraph 1 of the amended statement of defence) that the radical title to the piece of land in question was vested in the appellants, the burden of proof shifts on the respondent to prove a valid grant to him. See David Ituama v. Friday Jackson Akpe-Ime (2000) 7 SCNJ 40; (2000) 12 NWLR (Pt. 680) 156. The gravamen of the respondent’s defence is that the appellants are estopped after revalidating the sale to him from turning around to reclaim the land which had been in his possession since the Shagari presidency between 1979-1983.
The respondent gave evidence on pages 108 – 109 of the records in this regard as follows –
“We took the paper to the lawyer and they signed and gave each of his own copy. After this I went to the land to put beacons. I then constructed road on the land and built fence round it, I sold part of the land and the portion I sold was resold to those who built Mosque on it.
Later Kawu Ora called me that their family will like to see me in a meeting called by the family. When I got there I met many of the family member Kawu Ora was there, Alh. Awure 1st plaintiff, Alh. Okanla the family head who is called Daodu, I don’t know his real name, we called him Daodu and other family members that I don’t know their names. Other people who bought land from Kawu Ora were also present. So we were told that we had to add some amount to what we paid to Kawu Ora on the land we bought. I told them I had made an agreement on the land and they said if I still want to retain the land I must pay N600.00 on each plot and I must not pay the money to Kawu Ora if I don’t see other members of the family, The day they came to collect the money, four people came, Kawu Ora, Alh. Raimi Aiyegbajeje, Okanla and one other person light in complexion. I don’t know his name.
The total plot is 50 plots and N600.00 in 50 places is N30,000.00. So I gave Kawu Ora the sum of N30,000,00 and he gave it to Okanla. They were about to go when I told them they should let us go to Akana at Masuda, Akana is the Mogaji of Masuda who is in charge of all the land. When we got to his house at Masuda, we did not meet him, we were told he was on the farm, so we went to him on the farm and met him harvesting groundnut. Akana then told him that I have paid the extra amount the family told me to pay that they should not trouble me on the land again and the man said it is alright, that after all the land belongs to their father. From that day I did not hear anything from them again until year 2002 when Kawu Ora’s sister who was married in our town died and we went to bury her Kawu Ora then informed me that there will be a family meeting at Masudo the next day and I should be there.
When I got there the 2nd day I met the 1st plaintiff, one Alh. Oba and many other members of their family. Alh. Oba then informed me that Daodu has died and he is now the new Daodu. I congratulated him. He then told me he has been given the power of Attorney on the Masudo land and all of us who bought land there must pay extra money again if we want to retain our plots. I told him I had paid extra before and I was not going to add anything to the two payments I had made. Kawu Ora told me to pay and I refused.”
The respondent also called in aid DW4 and DW5. The role played by the 3rd plaintiff at the lower court was not challenged by the appellants during cross-examination.
I must observe also and agree with the learned trial Judge on the implication of the failure of the 3rd plaintiff to give evidence at the lower court. The 3rd plaintiff – Kawu Ora in the lower court did not give evidence to debunk the claims of the respondent as regards the original transaction or the later transaction. He had been at the centre of the drama from the first sale of land till date.
Let us look at the role played by this elusive character from the evidence of the DW4 who claimed to be the friend of the 3rd plaintiff and a companion of the said 3rd plaintiff who witnessed the transactions between the parties from beginning to the end. His evidence on oath is as follows on pages 104 – 105 of the records.
“I know the defendant I know the two plaintiffs now before the court. I also know Kawu Ora. I know about the land that Kawu Ora sold to the defendant. The land is a Masudo on the way to the University of Ilorin permanent site. I know where the late Bale of Masudo lived. I mean the Bale, who was there when the land was sold. If one is going to the University the land is on the right and one hotel own by Gen. Adisa is on the left. Immediately after the hotel, there is a path leading to a village, that place itself is called Masudo. I was there when Kawu Ora sold the land to the defendant.
There was a meeting where all the people who bought land met the Masudo family and the meeting took place at Masudo.
The defendant asked the elders of Masudo family whether Kawu Ora has a right to sell the family land, and the elders said yes, that Kawu Ora is their brother but that those who bought land must add some amount to what they had earlier paid. These two plaintiffs were also present that day and I was there too. The defendant agree to pay extra amount, he didn’t pay it that day. He was told to pay extra N30,000.00 and on a later date, I accompanied Kawu Ora and defendant paid the N30,000.00 to Kawu Ora (3rd plaintiff). I was on the side of Kawu Ora. I didn’t know the defendant before.
They sent to Akano the family head, he came from the farm to Masudo and the defendant paid the money to Kawu Ora. Both the 1st and 2nd money were paid to Kawo Ora. I only saw that the defendant constructed fence on the land. This happened about 2 years ago. It was during the time of Governor Adamu Attah. 1know Masudo it is not possible for somebody to do anything on the land without the Masudo people seeing or noticing it. All I have told the court is what I saw and witness and nobody told me.
Xx – It was about 20 years ago that Kawu Ora sold the land. It is true that the Masudo family who owns the land of Masudo at University Road live at a village called Masudo near Igbaja town but they put some people on the land at Masudo, Ilorin. The head of Masudo is called Bale. I don’t know whether Masudo family is divided into three unit. I am a friend to Kawu Ora, not the defendant. I have never sold land in my life. I don’t know what an acre or how to measure land. There was a written agreement between Kawu Ora and the defendant and the said agreement was shown to the family. When he paid for the 1st time there was an agreement signed by them but when the 2nd payment of N30,000.00 was paid, I am not aware of any agreement made. I did not sign the agreement I only witnessed the payment the agreement was not signed in my presence. The name of Bale Masudo is Alabi. I may not know whether or not he signed the agreement.”
The evidence was also supported by that of DW5 on pages 106 – 107 of the record.
The appellants carefully did not cross-examine the respondent or challenge the fact that he had paid N30,000.00 to members of the family prior to 2002 when he was assured of subsequent peaceable enjoyment of the land.
The learned trial Judge apparently believed the evidence of the respondent’s witnesses regarding the revalidation and the role played by the 3rd plaintiff. I hold the view that the position and the facts in this case would have been clearer if the 3rd plaintiff had given evidence at the lower court. His failure to do so can only be taken to mean that the appellants had something to hide which was against their interest. See A.-G., Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) pg. 645 at pg. 665-666 where the Supreme Court held-
“Although a party to a suit is not obliged to testify on his behalf, where a party’s case before a court of justice is such that he is expected to swear to its truth, and be cross-examined thereon and he fails to submit to these, as in the instant case, that is a point that can go against his credit and be a good ground for rejection of his case. This is because it is the law that in civil cases, it is the balancing of evidence called by either side to the litigation that is the only acceptable method of making conclusive findings.”
Obviously the appellants have not put their cards on the table.
Be that as it may, what is the effect of the act of revalidation done by the appellant’s family prior to 2002? Let us first consider the issue of whether it was properly pleaded. The amendment to the statement of defence has adequately pleaded the facts to buttress the defence of estoppel by conduct even though it was not put in such formal terms. I believe the respondent pleaded and proved the criteria set up by the courts to successfully plead and prove this defence. There is no special form needed to plead the equitable defences of waiver or estoppel so long as the defendant pleads sufficient facts thereof. See N.B.C.I v. Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt.916) pg. 617; Adeniran v. Alao (2001) 12 SCNJ 337, (2001) 18 NWLR (Pt. 745) 361; Okereke v. Nwankwo (2003) 4 SCNJ 211, (2003) 9 NWLR (Pt. 826) 592. The defence of estoppel by conduct is also recognized by S. 151 of the Evidence Act. See. Obayan v. Unilorin (2005) 15 NWLR (Pt. 947) pg. 123. I am aware that strict rules of evidence are not applicable to customary transactions, however we can borrow from it in order to do justice as has been done in the past by the Supreme Court.
The incidents of the revalidation is the additional payment made by the respondent to the family of N30,000.00. The respondent’s evidence was that in respect of this second transaction he saw and contacted all principal members of the family, including the appellants in this case and the family head at that time. That part of his evidence was not seriously opposed under cross-examination. That was the finding of the learned trial Judge with which I am in agreement. Can a valid transaction be born from an invalid one? I would like to think so in the circumstances of this case. The principle of agency would hold. The appellants in my view had ratified the earlier transaction of their agent the 3rd plaintiff by accepting the N30,000.00 from the respondent. They as the principals thus acquiescence to the earlier transaction between the 3rd plaintiff and the respondent. There is evidence on record that the 3rd plaintiff was the accredited agent and representative of the family. It is interesting to note this portion of the evidence from the 1st plaintiff/appellant who was PW3. He conceded under cross-examination as follows on page 85 of the record-
“I was not born when the 1st head of our unit reigned. Momodu was head of our unit for 17 years, and Alabi 22 years. The money paid by the Government was during Alabi’s time. It was during Alabi’s time we moved to the present place. Apart from the bale, the 3rd plaintiff is the one assisting us to supervise the land.
3rd plaintiff started this since the construction of the University Road. Apart from this case and Prof. Aro’s case there are other cases our family has with other people. I can’t remember the other cases, I don’t have the files with me.”(Italics mine)
To me this shows clearly that the family held out the 3rd plaintiff as their accredited representative with whom innocent purchasers could deal. I do not agree that in this case a valid transaction cannot be born from an originally void one when it is revalidated. In any event, the second transaction can constitute a separate and valid sale of the land in dispute to the respondent. After all the 3rd plaintiff did not come to court to deny the fact that the respondent was called to a family meeting, he was asked to revalidate, he did so with the sum of N30,000.00 and ensured that all principal members and family head was aware of the revalidation. To me the learned trial Judge rightly sought to do substantial justice in this case. However, we must apply the principles of substantial justice according to the law. See Dada v. Dosunmu (2006) 18 NWLR (Pt. 1010) pg. 134. I know that the inflexible principle of customary law is that no prescriptive title can be declared in favour of the respondent in spite of his long possession of the land in dispute. However, the courts are courts of both law and equity. In the exercise of its equitable jurisdiction in this matter the court acts on three principles. First, the right of the occupier must be adverse to those of the real owner. That has been proved in this case by the appellants. Not only must the possession be adverse, it must have lasted a long time. Thirdly, the real owner must have been guilty of acquiescence and/or laches to enable the occupier bring into play the defence of estoppel by conduct.
In its simplest form, acquiescence means conduct from which it can be inferred that a person has agreed to a certain state of affairs affecting his legal rights. Acquiescence therefore operates by way of estoppel.
Even though the learned trial Judge seemed to have rejected the respondent’s defence of acquiescence, I cannot ignore it. The lower court and this court need not agree on the reasons for arriving at the same conclusion.
The focus of an appellate court is the correctness of the decision of the lower court and not the reasons given for it. See Ndulue v. Nwankwo Ibezim & Anor. (2002) 5 SCNJ 247; (2002) 12 NWLR (Pt. 780) 139. The appellants have not denied that the respondent had been on the land since the Shagari administration and when they met him prior to 2002, a fence of three coaches of blocks, a gate which they removed and a Mosque were on the land.
The appellants have shown a high degree of acquiescence which may amount to fraud. It was either they had voided absolutely the first sale to the respondent or they had chosen to revalidate it. They cannot approbate and reprobate. Equity will not allow it. The appellants have lost their reversionary right to title in the land through their conduct of revalidating the 20 years or more possession of the respondent. See Tiamiyu Dania v. Yesufu Soyenu (1937) 13 NLR 143; Kayode v. Odutola (2001) 5 SCNJ 391, (2001) 11 NWLR (Pt.725) 659; Kalio v. Woluchem (1985) 1 NWLR (Pt. 4) pg. 610; Okereke v. Nwankwo (2003) 9 NWLR (Pt. 826) pg. 592; Ilona v. Idakwo (2003) 11 NWLR (Pt. 830) pg. 53. In Abudu v. Eguakun (2003) 14 NWLR (Pt. 840) 311 at pg. 322 the Supreme Court held that the law presumes that the long enjoyment by a party in possession of land indicates that his rights have a legal origin. This is moreso when the party has been in possession nee claim, nee vi, nee precario; that is neither secretly, nor by force nor with legal permission. They are estopped from setting up a claim of their legal right to the land in dispute.
They have set up a system of extorting money from the purchasers of their family land. Prior to 2002 when they took money from the respondent to revalidate a sale more than 20 years old, they gave him the impression that that would be the end of the matter and he would have subsequent peaceable enjoyment of the land. All the principal members including the family head participated in the transaction. Now, a new Mogaji freshly installed wants his own bite from the unending family cake. They cannot eat their cake and have it. It is the duty of the courts to discourage this prevailing practice of land owners extorting money from land purchasers with the excuse that the wrong member of the family alienated the land. This was what the Land Use Act failed to achieve in spite of its lofty objectives.
It is unfortunate in my humble view that the interpretation of the Land Use Act over time by the courts have taken the teeth out of and negatived the desired effect of the Land Use Act. The issue of the revalidation of sale of family land is a recondite point of law and I must say I considered the absolute position of the customary law in relation to alienation of family property vis-a-vis the current trend of the vendors using this position of the law to continue to defraud purchasers who innocently purchase family land. No modem society can progress economically without a high degree of certainty in land tenure and the imposition by law or equity of prescriptive titles to ensure that there is closure of land disputes. One can defend the intervention of equity on many grounds. In fact as long ago as 1913 in Akpan Awo v. Cookey Gam (1913) 2 NLR pg. 100, the full court held that it would be wholly inequitable to deprive the defendants of the land even assuming that “it were as clear as it is upon the evidence doubtful that they entered into possession contrary to the principles of native law”. In that case, the defendant had been in undisputed possession of the land in dispute with the full knowledge of the plaintiff for a period of 21 years and had collected rent and granted leases to individuals. It is also important that public policy should encourage quietude in the enjoyment of land held for a long time without disturbance. See also Koney v. U.TC. (1934) 2 WACA 188.
We must move with the times and the dynamics of social change.
The customary law that principal members must be present to sign or hand over the land to the purchaser may well be good when everyone lived in small farming communities, knew each other and were in fair walking or shouting distance from each other. How do we take care of the modem situation when the so called family head may not necessarily be in the immediate vicinity and have designated someone to act on their behalf as the 1st appellant confessed in his evidence. How do we take care of the cosmopolitan society in which people from all over the country have to make their home and build houses far from their own native villages. When a rule of customary
law in itself not contemptible but established to ensure equal benefit of family interests is now being set up and utilized to perpetrate acts contrary to natural justice, equity and good conscience, I humbly think it is time to revisit it. It is not always easy for a purchaser to investigate and be given correct facts about the pedigree of a piece of land. Where it is clear as in this case that the family are deliberately re-selling the land at regular intervals, then the position of the law must be shifted to meet this current but prevailing social hazard. I believe that there is equitable jurisdiction vested in this court to protect the interest of a person who had been induced or encouraged to expend money under an invalid or unenforceable land transaction. See Bosah v. Orji (2002) 3 SCNJ 52; (2002) 6 NWLR (Pt. 762) 137.
I uphold the revalidation of the original sale as conferring title by purchase on the respondent.
The appellants cannot reap the fruits of their dubiousness in this case. The 2nd issue is resolved in favour of the respondent. For the reasons given above, I dismiss the appeal with N10,000,00 costs against the appellants for the respondent.
JUMMAI HANNATU SANKEY, J.C.A.: I have had a preview of the judgment just delivered by my learned sister, Ogunwumiju, JCA. I agree with her reasoning and conclusions. I will, however, add a few words in furtherance of my agreement.
There is no doubt that my learned Lord has sufficiently dealt with all the issues raised by the parties. Thus, it is apparent from the record of proceedings in the lower court that both the appellants, (as plaintiffs), and the respondents, (as defendants), at various times applied for the amendments of their pleadings. After giving adequate consideration to the separate applications of the appellants and the respondents in this regard, the lower court used its discretion to grant same. In granting the amendment to the defendants’ statement of defence and counter-claim, the court below was on solid ground when it held thus at pages 94-95 of the record of proceedings:
“I am of the view that none of the amendment (sic) above is bringing in any new issue or overreaching the plaintiff … Recognizing that the main aim of amendment is to cure all discernible defects in the pleadings and to settle the real controversy between the parties in order to do substantial justice between them, it is my view and I so held (sic) that this application has merit and it is hereby granted as prayed.”
In like vein, the plaintiffs filed a subsequent application to file a consequential reply to the amended statement of defence. This was equally granted. See pages 102 – 103 of the record.
The appellants grouse however is that the lower court should not have allowed the amendment to the defendant’s statement of defence at that late stage of proceedings, especially since the plaintiffs had closed their case and would not have the opportunity to rebut the new issues raised in paragraphs 6, 7, 8 and 9 of the amended statement of defence and counter-claim. With due deference to learned counsel for the appellants, the aim of amending pleadings in general is to enable the court to decide the rights of the parties, and not to punish them for mistakes made in the conduct of their cases by deciding otherwise than in accordance with their rights.
The age of technicalities is now history. Substantial justice is the order of the day. So it is either you get moving on the train of justice or you get left behind, with the necklace of technicalities wrapped around your neck to keep you warm company or, on the other hand, to choke you. It has long been settled that:
“The rule of conduct of courts in matters relating to amendments of pleadings is that however careless or negligent the first omission to ask for amendment may have been or however late the application there, the amendment should be allowed by the court either on its own motion or on the application of a party to the proceedings if such amendment can be made without injustice to opposite party. Further, there cannot be injustice if the opposite party can be compensated by the award in his favour of costs occasioned by the amendment. This is for the reason that courts do not exist for the purpose of punishing bad taste. The duty of courts is to determine the real issues in controversy as they appear on the evidence although the conduct of the case on behalf of the litigant may have been slipshod or even cavalier.”
See Okeowo v. Migliore (1979) 11 SC 138 at 199-200 and Ikyernum v. Iorkumbur (2002) FWLR (Pt. 110) 1908, (2002) 11 NWLR (Pt. 777) 52.
The rules for the grant of amendment of pleadings are therefore very flexible and a matter within the discretion of the Judge. Nevertheless, an application to amend pleadings should be refused where:
(1) It will entail injustice to the respondent.
(2) The applicant is acting mala fide.
(3) By his blunder, the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise. See Ndinwa v. Nwaebo (2001) FWLR (Pt.57) 1903; (2001) 6 NWLR (Pt. 709) 311.
In the case at hand, it is apparent that the learned trial Judge took these factors into consideration and applied the principles of law to the facts before her in granting the respondent herein leave to amend his pleadings. I see no reason to disturb her findings in that regard, more so as the appellants, as plaintiffs, were granted a corresponding order to file a reply to the amended pleadings, thereby enabling them to address whatever issues had been raised therein.
Be that as it may, the other bone of contention riding on this amendment of pleadings is the appellants’ complaint that the amendment having been granted after the plaintiffs had closed their case, the learned trial Judge acted wrongly when she refused the plaintiffs’ application to call witnesses to rebut the evidence adduced by the defendants in proof of the facts in the amended statement of defence and counter-claim.
On the surface, this would seem to be a reasonable and valid complaint. However, an in depth look at what transpired at the lower court would shed better light on the matter.
The respondent, as defendant at the lower court, had pleaded a receipt issued to him in respect of the disputed land both in paragraph 5 of the original statement of defence and in paragraph 5 of the amended statement of defence. For ease of reference, the said pleadings at pages 6 – 7 and 23-24 of the record of proceedings respectively are hereunder reproduced:
“Statement of defence and counter-claim.
5. The defendant further denies the allegation that he encroaches or trespasses on the land of the plaintiffs but states that with knowledge of all other plaintiffs the 3rd plaintiffs transferred some plots of land to him for consideration outside the portion of land referred to in paragraphs 1,2,3 and 4 above. Purchase receipt for the said land is hereby pleaded.”
“Amended statement of defence and counter-claim.
5. The defendant further denies the allegation that he encroaches or trespasses on the land of the plaintiff but states that with knowledge of all other plaintiffs, the 3rd plaintiff transferred some plots of land to him for consideration outside the portion of land referred to in paragraphs 1, 2, 3 and 4 above. Purchase receipt for the said land and other land transferred by the 3rd plaintiffs are hereby pleaded.”
(The italiced portion indicates the addition to this paragraph by way of amendment). A close look at the two averments confirms the finding of the learned trial Judge that the appellants (as plaintiffs) were not taken unawares by the issue of the receipt. The respondent pleaded the receipt upfront from the onset of proceedings, and he merely repeated it in the amended pleadings. Therefore, the appellant cannot be heard to complain, as he sought to do, that the learned trial Judge, by refusing to grant his application to call more witnesses to rebut the evidence elicited through the tendering of the receipt, denied him a fair hearing. Indeed, the appellant was granted leave to file a consequential reply to the amended statement of defence.
This he promptly did and in answer to the said paragraph 5, this is what he said:
“Reply by plaintiff to amended statement of defence.
1. The plaintiffs denies paragraph 5 of the amended statement of defence and state that no purchase receipt was issue by the 3rd plaintiff or any member of the plaintiffs to the defendant and the purchase receipt pleaded are tainted (sic) with fraud.
Particulars of fraud.
(a) Purchase receipt purportedly prepared between the 3rd plaintiff and the defendant in 1977 could not have been prepared as Lawyer Fajemila who allegedly prepared the receipt was called to Bar as a practising lawyer in 1980.
Plaintiffs plead all relevant documents/book.”
I am not unmindful of the fact that this latter process was filed quite late in the day after the plaintiffs had closed their case and the defendant had opened his. Nevertheless, there is no gainsaying the fact that the plaintiffs were put on adequate notice about the existence of this receipt right from the onset. Yet, they chose not to do anything to neutralise same when presenting their case, despite the many options available to them in the rules of court such as ‘discoveries’ and ‘inspection’, not to mention the ‘notice to produce’ in the law on evidence. Learned counsel, in carrying out the prosecution or defence of the cases of the clients in court, are expected to exhibit due diligence and skill, as this is the least that a litigant, who has retained their services and has placed full confidence in their skill, is entitled to receive. Instead of being proactive, learned counsel waited until the receipt was actually tendered in court before he embarked on this fire brigade approach of attempting to procure evidence to discredit or question the veracity of the said receipt. Be that as it may, it is on record that the learned trial Judge still indulged him. At pages 116 -117, the learned trial Judge painstakingly went back through the records and recounted the number of adjournments granted the appellant to actualise his verbalised and written intention to discredit the said receipt, exhibit D1. Briefly summarised, the amended statement of defence was brought in on 22nd June, 2004.
The agreement/receipt was tendered through the DW3 and admitted in evidence on 22nd July, 2004. When it became the turn of the learned counsel for the appellants to cross-examine the DW3, he sought an adjournment. He was obliged and the matter was adjourned to 22nd September, 2004 for the cross-examination of the witness.
On that date, counsel came up with a motion seeking for leave of court for an extension of time to file a consequential reply to the amended statement of defence. The application was granted the same day. Learned counsel yet again sought an adjournment to file the proposed reply before cross-examining the DW3. The adjournment was once again granted and the matter was set down to 18th October, 2004. It was finally on that day that counsel finally cross-examined the witness. See the findings of the court at pages 116 – 117 of the record. The learned trial Judge then went on to find as follows at pages 117 – 118 of the record:
“With the reason for adjournment on 22/7/04 i.e. to enable the plaintiff get the documents to confront the DW3 in the xx … the application which was granted instantly, the court expected the plaintiffs on 18/10/04 when the plaintiff xx DW3 to confront the DW3 with the said documents or say something about the documents.
The learned counsels (sic) to the plaintiff xx the DW3 without confronting him with the documents he said he was going to confront him with during xx. It is not the duty of the court to remind or tell a party how he should conduct his case. It was open to the Plaintiff to either confront the DW3 with the said documents or by their motion seeking for leave to reply to amended statement of defence to have applied for reopening of their case to put in the documents by calling additional witness(es) but the plaintiff failed to do any of these.. After xx DW3, DW4 gave evidence and case was adjourned to 4/11/04. On 4/11/04 DW5 and DW6 gave evidence and was XX by the learned plaintiffs counsel. Both counsel then agreed on 6/12/04 for address. It was before that 6/12/04 that the plaintiffs now bring (sic) this application to reopen their case by calling an additional witness and tender relevant document that was not available during the period the plaintiff opened and closed their case.”
The learned trial Judge went on to find and to give justification for her finding in the following words at page 119 of the record:
“To now say the plaintiffs are surprised by the exh. D7 in November 04 is not acceptable to this court. If at all they were surprised, that surprise ceases (sic) to exist since 22/7/04 when the plaintiff counsel sought for an adjournment to enable him confront the DW3 with some documents in xxion (sic).. so to now come with the complaint that they didn’t know of the existence of the said document is not true and cannot be a genuine and reasonable basis for reopening the plaintiffs’ case after case had been adjourned 3 times at the instance of the plaintiffs for such application and the case finally adjourned for address after the plaintiffs had satisfied themselves on the said paragraph 5 of the amended statement of defence. I cannot but agree with the defence counsel that this application is a ploy to patch up the plaintiffs’ case and also to delay the case. Before an application of this nature will granted there must be a genuine and defendable reasons (sic) which in my view is lacking in this instance. I therefore hold that there is no merit in this application and it is hereby refused.”
I have set out the lower court’s ruling on this in extensio because it captures very succinctly the background to the application and the learned trial Judge’s reasoning in refusing same. In all good conscience, I cannot bring myself to disturb the findings of the learned Judge and the exercise of her discretion in this regard because I am of the view that she went the extra mile to accommodate the whims and caprices of the plaintiffs’ counsel to no avail. It seemed that each time she bent over backward to grant his application, he pushed the boundaries further, perhaps to see how far he could go with the court. But there comes a breaking point when the centre will no longer hold. This point came when the learned Judge declined to further pander to the wishes of the plaintiffs’ counsel as it had become apparent to her that his intentions were not altogether honourable. A Judge must at all times be in control of the proceedings of her court. It will be abdicating in her responsibility to allow counsel on one side to take over the court, bestride the court like a colossus and dictate the pace. May that day never come’ With all due respect to the learned counsel for the appellants, I am of the firm view that the learned trial Judge exercised her discretion judiciously in refusing to grant the further application of the plaintiffs to reopen their case for the purpose stated, i.e. to adduce evidence to discredit the said receipt, exhibit D1. It was too late in the day. Ample opportunity had been given to the appellants but they failed to utilise it. Like my learned sister has stated in the lead judgment, justice is indeed a three way street; justice to the plaintiff, justice to the defendant and justice to the society. A court which loses sight of this truism will end up failing in its duty of being impartial to all the parties appearing before it. It is for these reasons that I also find that the refusal of the court below to allow the appellant to reopen their case in order to call additional witnesses did not occasion a miscarriage of justice given the peculiar facts and circumstances of this case. This is more so as, contrary to what learned counsel would want this court to believe, the additional evidence he intended to adduce was not solely in respect of the issues of the matter of laches and acquiescence which he contended were introduced as new issues in paragraphs 6, 7, 8 and 9 of the amended statement of defence. The application to call additional witnesses was mainly and specifically for the purpose of discrediting the receipt/agreement, exhibit D1, pleaded in paragraph 5 thereof.
Finally, being in total agreement with the treatment of issue two by my learned sister, I have nothing more to add as she has comprehensively addressed all the issues arising therefrom. I also resolve same against the appellants.
In the result, I also find no merit in the appeal. Same is hereby dismissed. I abide by the order as to costs.
MUNTAKA-COOMASSIE, J.C.A. (Dissenting): I have read in draft the lead judgment of my learned brother Ogunwumiju, JCA but, regrettably, I am unable to agree with her reasoning and conclusions by way of brief emphasis I wish to add as follows:-
” … issues were formulated by the appellants as arising for determination and it is my desire to consider them together as an embodiment with special emphasis on only two issues. Issue …. as being sufficient to dispose of this appeal. They are already set out.”
This is an appeal against the decision of the High Court of Justice, Ilorin Coram Folayan, J. delivered on 13th June, 2005.
As could be gathered from the statement of claim, the plaintiffs’ claims are:-
i. Declaration of title over the piece of parcel of land on which the defendant is encroaching upon.
ii. Perpetual injunction restraining the defendant by himself, his agents, servants, successors, privies or workers from further encroaching or trespassing on the plaintiffs’ family land at Masuda Village, University of Ilorin Road, Ilorin.
On service the defendant, Alhaji Adisa Iledu (Yusuf Adisa), promptly filed a defence and counter-claim which was later amended in which he readily admitted that the plaintiff family to be the customary owners of the land in dispute. His contention is that he did not encroach on the said land. He maintained that he bought the land from the 3rd plaintiff and pleaded the purchase receipt. After the purchase, he alleged, members of the plaintiffs’ family demanded for more money for the land already transferred to him for which he paid additional sum of N30,000.00 due to pressure put on him. Again the defendant claimed that the 3rd plaintiff held himself out to be the owner of the said land in dispute. According to the defendant things went smoothly, there was no problem or trouble again until in the year 2002 when the plaintiffs came back to him for more money which he refused to pay. He claimed that he had put the said land into positive use for years.
The defendant counter-claimed against the plaintiffs in respect of a land immediately after the main gate (from the University main gate) by the right. He claimed that land belongs to Sikiti family of Tanke Oke ado, Ilorin. who share boundary with the plaintiffs’ family, for the sake of clarity I reproduce the said counter-claim thus:-
“i. The counter-claimant claims against the plaintiffs/respondents a portion of land immediately after the main gate (from University main gate) by the right immediately after the Biological Garden measuring 31.295 hectares same being the customary land of Sikiti family of Tanke, Oke ado, Ilorin.
ii. The defendant states that Sikiti family shares boundary with Masuda family at Tanke Oke ado Tanke Village and as a member of Sikiti family evidence will be led to show natural boundaries between the land of Masudo and Sikiti families.
iii. The defendant further states that he has permission and authority of principal members of Sikiti family to represent the family in this action and letter of authority is hereby pleaded.
iv. The defendant with other members of Sikiti family are descendants of Mallam Shikhir or Sikiti and the descendants have not transferred the piece of land in question to the plaintiffs nor plan to transfer it to any other person.
v. That the aforesaid land (para. 17) has been marked out for each member of Sikiti family and each member knows an area designed for him or her but jointly agreed that the defendant and another member of the family to manage the entire land for the Sikiti family.
vi. That since the demise of the first founder/settler Mallam Shikihir or Sikiti, that the entire land continues to devolve from generation to generation by way of inheritance till date.
vii. That defendant by way of evidence shall trace the genealogical lineage of Shikihir family (hereinafter called Sikiti) from the first founder, his immediate successors up till present date.
viii. That the Sikiti family land immediately after Biological Garden, main gate of University of Ilorin was not acquired de jure and de facto from the family, the family still exercise exclusive control over the aforesaid land till date.
Whereas the counter-claimant claims for himself and on behalf of Sikiti family:-
a. Declaration that the Sikiti family is the customary owner of a portion of land measuring 31.295 hectares immediately after Biological Garden, main gate, University of Ilorin.
b. Perpetual injunction restraining the plaintiffs/respondents, agents, servants privies or workers from interference or trespass on the aforesaid land.
The plaintiffs on service of the amended statement of defence filed a reply to it, shown of their particulars, are reproduced as follows:-
i. The plaintiffs (sic) denies paragraph 5 of the amended statement of defence and state that no purchase receipt was issued by the 3rd plaintiff or any member of the plaintiffs to the defendant and the purchase receipt pleaded was (sic) tainted with fraud (Particulars supplied, P. 36)
ii. The plaintiffs states (sic) in reply to the amended statement of defence that there was no time the plaintiffs held out the 3rd plaintiff as the authorized seller of Masudo land as he only became head of his own unit of family in 1994.
iii. The plaintiffs in reply to paragraph 8 of the defendant amended statement of defence state that there was no time the defendant built access road to any Mosque on Masudo land and there was no land legally transferred by the defendant to any body.
iv. The plaintiffs further plead in reply to paragraph 8 of the amended statement of defence that the fencing of the land in dispute was done during the pendency of this case.
v. The plaintiffs further plead in reply to paragraph 6 of the amended statement of defence that neither 1st nor 2nd plaintiffs nor any member of the plaintiffs demand for any money from the defendant and none was collected by plaintiffs from the defendant.
The above are the pleadings of the parties so far, it should not be forgotten that the plaintiffs filed a representative action and the trial court accepted same as such. It appears also that both parties have no problem with the identity of the land in question. The 1st two plaintiffs testified for themselves and called a surveyor who surveyed the land in dispute as the plaintiffs’ witness. The defendant gave evidence in his defence and called five (5) witnesses. All these are contained on pages 77 – 85 (for the plaintiffs) and pages 85 – 110 of the record of proceedings (for the defence and their witness).
As if this is not enough, when the plaintiffs closed their case and the defence called two (2) witnesses the defendants motion to amend their statement of defence and counter-claim was allowed after rigorous opposition by the plaintiffs on the grounds that the application was made mala fide and that the plaintiffs will not have any opportunity to re-open their case to rebut or accept the new issues been raised in the amended statement of defence see pp. 89 95 of the record of proceedings. The defence then called three more witnesses and closed its case. The plaintiffs then begged the court to allow it, by filing a motion on notice, to call additional witness and to tender document which were not available at the time the plaintiffs were giving evidence. The motion was moved and opposed by defence. With all these glaring facts, that court in its ruling delivered on 31st January, 2005 turned down the application. The learned Judge has this to say at the last paragraph of p. 119 of the record:-
” … I can not but agree with the defence counsel’s view that this application is a ploy to patch up the plaintiffs’ case, and also to delay the case. Before an application of this nature will be granted there must be genuine and defendable reasons which in my view is lacking in this instance I therefore hold that there is no merit in this application and it is hereby refused.”
Now that both parties closed their respective cases. They both filed and adopted their respective written address. The defendant’s reply is contained on pp. 70 – 73 of the records.
Even at the risk of repetition I wish to very briefly state the case for the plaintiffs thus:-
i. The land in dispute is situate at Masudo village along University of Ilorin Road, belongs to their family called Masudo land.
ii. That the defendant did not buy or purchase the land in dispute from their family.
iii. That no individual member of the family could unilaterally sell family land without the knowledge and consent of other family members.
iv. That Masudo family are made of three (3) units and none of the three units can sell without the others since the land was yet to be partitioned. The above is the stand of the plaintiff’s family.
It is to be observed further that later the name of Alhaji Kawu-Ora was inserted at the trial court as the 3rd plaintiff.
The defendant’s stance is this:-
(a) He quite agreed that the plaintiff’s family own all Masudo land including the portion in dispute.
(b) However it was the 3rd plaintiff Kawu-Ora who transferred some plot of land to him for consideration outside the portion of land referred to in paragraphs 1, 2, 3 and 4. See paragraph 5 his statement of defence.
In his evidence in defence, the defendant alleged that the land being claimed by the plaintiff’s family in front of Beckadims Recreation Centre along University of Ilorin road was the very one sold to him by 3rd plaintiff and later ratified by the plaintiffs’ family at a meeting after the 1st sale and that the said family collected N30,000.00 through 3rd plaintiff. But when the family, according to him, made another demand of money and he refused, trouble brew-up again.
At the end of the trial, learned trial Judge, in a well considered judgment decided in favour of the defendant and against the plaintiffs wherein the trial court dismissed both the plaintiff’s claim and the counterclaim of the defendant for want of evidence in support thereof.
Hear the learned trial Judge:
“Having considered the totality of the evidence before me and all the considered views above I hold that the plaintiff has (sic) no (sick) establish (sic) their claim of reclaiming the disputed land from the defendant as this will amount to aiding injustice being perpetrated by landowners who would have legally sold their land when it was cheap and realizing the current high prices would want to reclaim and resell again. The plaintiffs’ case is therefore dismissed. As for the counter-claim there is no evidence to support the counter-claim of the defendant. DW1 and DW2 gave evidence that the Mosudo family or any other person has not encroached on their land and I see no basis for the counter-claim at all. The counter-claim too is also dismissed”. See page 132 of the record of proceedings.
Dissatisfied with the decision of the lower court, the plaintiffs, now appellants herein appealed to this court and filed nine (9) grounds of appeal shown of their particulars, are reproduced as follows:-
Ground 1
The learned trial Judge erred in law when on 16th June, 2004 he allowed the defendant to amend his statement of defence introducing new issue after plaintiffs had gave evidence and closed their case.
Ground 2
The learned trial Judge erred in law when he held that the sale by the 3rd plaintiff to the defendant was subsequently and validly ratified by the Masuda family when extra N30,000.00 was demanded and collected.
Ground 3
The trial court misdirected itself when it held:
“There is no evidence before me to contradict or challenge the evidence of the defendant that he was ordered or asked to pay N600,00 per plot on the 50 plots earlier sold to him by 3rd plaintiff of which he paid N30,000.00 again at the instance of Masuda family, there is no evidence that no such meeting was held or that the defendant was not asked to pay N30,000.00 or that the N30,000.00 was not delivered to the family”.
Ground 4
The learned trial Judge erred in law when he laid undue emphasis in his judgment on the failure of the 3rd plaintiff to give evidence to controvert evidence of the defendant and thereby allowing the fact to influence his judgment.
Ground 5
The learned trial Judge erred in law when he allowed evidence of a material issue of purported family ratification of sale by 3rd plaintiff to the defendant when it was not specifically pleaded by the defence.
Ground 6
The learned trial Judge misdirected himself in fact when he said:
“The fact that the defendant sold part of the land to the people who built mosque on it was not challenged. The plaintiffs did not say the mosque was not built on their land or that the land on which the Mosque was built was bought directly from Masuda family”.
Ground 7
The learned trial Judge erred in law when he held that:
“Paragraphs 5 and 6 of the amended statement of defence were not challenged. There is no corresponding fact or paragraphs in the amended statement of claim to traverse paragraphs 5 and 6 of the amended statement of defence. There is no oral evidence on the side of plaintiffs too to contradict this. Since paragraphs 5 and 6 have not been challenged and issue have not been joined in the plaintiffs’ amended statement of claim on these two paragraphs, they are deemed established”.
Ground 8
The learned trial Judge erred in law when he rejected the evidence of 2nd plaintiff that he met the defendant for the first time in 2002 and instead prefer the defendant evidence of a family meeting in which 2nd plaintiffs were alleged to be present where the sale by 3rd plaintiff to the defendant was purportedly ratified by the plaintiff’s family.
Ground 9
The judgment is against the weight of evidence.
In the appellants’ brief of argument signed by learned counsel for the appellants, J. O. Asha-Olu, Esq. was properly filed and served on 23/4/2007, the following issues have been identified for our consideration:
1. Whether the learned trial Judge was right to have allowed an amendment sought in this case on a material issue and evidence to be led on the same by defence after the close of plaintiff’s case without granting corresponding opportunity to the plaintiff? (Grounds 1, 3 and 6)
2. Whether the unilateral sale of family land by the 3rd plaintiff to the defendant which was a void act could, be subsequently ratified by the plaintiff family with or without the head of the family? (Ground 2)
3. Whether the learned trial Judge was not in error when he laid undue emphasis on the failure of the 3rd plaintiff to give evidence in this case having regards to the circumstances of this case? (Ground 4)
4. Whether the learned trial Judge was not in error to have allowed evidence of family ratification of the earlier sales of family land by 3rd plaintiff to be led when such special defence was not pleaded? (Ground 5)
5. Whether the learned trial Judge was right by holding that issue were not joined by plaintiffs with the defendant as regards paragraphs 5 and 6 of the statement of defence at the close of pleadings (Ground 7).
6. Whether the learned trial Judge was not in error when he rejected the evidence of the 1st plaintiff (PW3) that he met the defendant in year 2002 when this piece of evidence was not challenged under cross-examination?
(Ground 8)
7. Whether the court below made a proper evaluation of the evidence before it (Grounds 3, 6 & 9)
8. Whether the trial Judge was right to have disallowed the plaintiff from re-opening their case after granted leave to file a reply to the amended statement of defence? (Ground 10).
The respondent firstly filed a notice of preliminary objection to wit:-
a. That the grounds of appeal numbered grounds 2, 3, 5, 7, 8 and 10 with their particulars contained in the amended notice of appeal dated 20th day of February, 2007 and filed on 21st day of February, 2007 respectively are incompetent and a fortiori should be struck out in limine.
Grounds for the objection
1. That the grounds 2, 3, 7, 8 and 10 of notice of appeal are repetition or prolixity without clear nature of misdirection of errors of law or fact.
2. Ground 5 of the notice and ground of appeal is vague and discloses no reasonable complaint against the judgment of the trial court. And the particulars have no bearing with the ground whatsoever.
He then offered some legal arguments and cited many decided authorities and urged this court to strike out grounds 2, 3, 7, 8 and 10 of the grounds of appeal with all their particulars and to disregard the appellant’s argument on issue 1 page 8.
Learned counsel secondly considered the main appeal and states that as far as they are concerned the relevant issues are thus:-
1. Whether the discretionary power of the Honourable trial court was exercised according to the law and the fact of this matter:
(a) When the defendant was allowed to amend his statement of defence after calling two (2) defence witnesses?
(b) When the plaintiffs/appellants were refused to re-open the matter after the close of the parties’ evidence?
2. Whether the plaintiffs/appellants had established or led ample material and credible evidence to convince the Honourable trial Court that the ratification or fresh transfer of the land in dispute was carried out by unauthorized member of Masudo family or whether ratification or fresh transfer of the land conferred valid title on the defendant/respondent?
3. Whether the action is stature-barred?
On 30/512007 when this appeal was taken learned counsel for the appellant after adopting their briefs had told this court that he had filed the appellants reply brief on 21/2/2007 in which they replied the respondent’s notice of preliminary objection and notice of intention to contend that judgment of the lower court be affirmed on grounds other than those relied on by it.
Since grounds 1, 2, 3, 5, 7 and 10 were attacked one way or the other by the Respondent one is bound to reproduce them with out their respective particulars if any for the sake of further clarity; they are thus:-
Ground 1
The learned trial Judge erred in law when on 16th June, 2004 he allowed the defendant to amend his statement of defence introducing new issue after plaintiffs had gave evidence and closed their case.
Ground 2
The learned trial Judge erred in law when he held that the sale by the 3rd plaintiff to the defendant was subsequently and validly ratified by the Masudo family when extra N30,000.00 was demanded and collected.
Ground 3
The trial court misdirected itself when it held:
‘There is no evidence before me to contradict or challenge the evidence of the defendant that he was ordered or asked to pay N600,00 per plot on the 50 plots earlier sold to him by 3rd plaintiff of which he paid N30,000.00 again at the instance of Masudo family, there is no evidence that no such meeting was held or that the defendant was not asked to pay N30,000.00 or that the N30,000. 00 was not delivered to the family”.
Ground 5
The learned trial Judge erred in law when he allowed evidence of a material issue of purported family ratification of sale by 3rd plaintiff to the defendant when it was not specifically pleaded by the defence.
Ground 7
The learned trial Judge erred in law when he held that:
“Paragraphs 5 and 6 of the amended statement of defence were not challenged. There is no corresponding fact or paragraphs in the amended statement of claim to traverse paragraphs 5 and 6 of the amended statement of defence. There is no oral evidence on the side of plaintiffs too to contradict this. Since paragraphs 5 and 6 have not been challenged and issues have not been joined in the plaintiffs’ amended statement of claim on these two paragraphs they are deemed established”.
Ground 1
I have already produced the attack on them by the respondent. In an answer to the attack the appellants counsel submits on behalf of his clients that the respondents attack is totally misconceived. He contended that ground 1 of the amended notice of appeal relates to the appellant’s objection to the wrongful exercise of discretion by the learned trial Judge when he wrongfully granted leave to the respondent to amend his statement of defence. Grounds 3 complains of how the trial Judge had wrongly allowed the respondent to raise new issues after the appellants had closed their case and of which appellants were not given corresponding opportunity of rebutting. Learned counsel for the appellants in his reply brief, p. 2 thereof, also explained that ground 5 has to deal with inability of the respondent to satisfies the rules of pleadings which requires pleadings of specific defence before a defendant could rely on same.
If I understand the appellant’s counsel very well, he is advocating that a ground of appeal must not lump many errors or complaints in one ground. It must be one complaint at a time. He further argued, and I agree with him, that it is an error to complain that a court wrongly exercised its discretionary power as contained in ground 1. It is another distinct error to say that the plaintiffs/appellants were not given corresponding opportunity to rebut new issue raised after they had closed their case, which in essence amounts to denial of fair hearing. If this type of arrangement is allowed the respondent will be entitled to say that the said ground is bad for duplicity.
In the case of Obomhense v. Erhahon (1993) 7 NWLR (part 303) 22 at 37 cited by the appellants counsel, Karibi-Whyte, JSC, made the following statement:”
A careful reading of the first ground discloses that it contains two grounds of challenge to the correctness of the judgment. It challenges the ruling, alone on the grounds of fair hearing and also on the grounds that the ruling is not supported by the provisions of the rules relied upon. It could be said that this ground is bad for duplicity and is likely to embarrass the respondent. A ground of appeal must clearly and unequivocally contain the ground of error of fact on which the judgment is challenged. I consider it confusing to allege more than one error in the same ground.”Learned counsel then submitted that the same argument goes for grounds 6, 8 and 10 of the amended notice of appeal. All of them cannot, on a good understanding, be described as repetitive. He then urged this court to hold that the ratio in the two cases cited by the respondent’s counsel is not apposite. They are:-
Aderounmu v. Olowu (2000) 4 NWLR (Pt. 652) 253 at 265 266; and Nwosli v. Okeke (2002) FWLR (Pt. 95) 266 at 372. He then urged this court to dismiss the respondents’ submission.
On the attack by the respondent’s counsel that grounds 2, 3, 5, 7, 8 and 10 are not only vague but incompetent, learned appellants’ counsel took an exception to it and contended that the attack is baseless. He stated that the respondent did not state how the grounds are vague, incompetent or repetitious or argumentative. Learned counsel then submitted that, assuming, without conceding that they are that per se is not enough reason why the grounds of appeal should be struck out. He cites Justice Party v. I.N.E.C. (2006) All FWLR (Pt. 339) 907 pp. 931-932, (2004) 12 NWLR (Pt.886) 140, and Nigeria Spannish Eng. Ltd. v. Ezenduka (2002) 7 NWLR (Pt. 748) 469/489 per Salami, JCA. He then urged this court to hold that the preliminary objection is not only frivolous but invidious.
My Lords, the notice of preliminary objection filed by the respondent is most un-useful to the respondent, to the counsel himself and to the court. The grounds of appeal attacked are perfectly in order. To do otherwise, by merging more than one complaint in one ground of appeal definitely amounts to an embarrassment to the other party. There is no repetition in any of the grounds mentioned, the stance, nowadays, taken by the Supreme Court and this court is to stay clear from the unnecessary technicalities in order to do substantial justice to both parties. All these issue of alleged violation of some technical rules of evidence which in an olden days may warrant striking out those grounds cannot stand in today’s legal mind and attitude. In the modem courts in Nigeria where an issue of law cropped up for our determination, the mere fact that the particulars of the grounds are somewhat argumentative, narrative or prolix, cannot warrant their striking out.
The desire by the courts to do substantial justice to the parties would not allow them to prevent a litigant the right to appeal against the respondent who did not show that any of such grounds attacked is illegal. The attacks on those grounds cannot be enough to make me strike out same. They must be sustained. I therefore hold that in this particular case, the said grounds single out by the respondent for attacks are neither, repetitive argumentative, nor vague. They are therefore not incompetent. The preliminary objection is without basis same is hereby struck out.
On the request of the respondent that the decision in his favour should be affirmed on grounds other than those relied on by the trial court, learned counsel for the appellants submits that there are no facts in the courts records that support the assertion that the appellants’ case was caught by statute of limitation Law of Kwara State. Counsel further submits that the so-called Limitation Act, 1994 (Cap. 89) Laws of Kwara State, does not exist. He referred to p. 128 of the records of proceeding and said it does not contain any evidence to that effect. He urged this court to discountenance same.
He then urged this court to resolve the respondents issue three in favour of the appellants. He then urged this court to allow the appeal.
I must say that the contention of the respondent that this court should affirm the trial court decision on ground other than those relied upon by it does not arise at all. I looked into the claims or the respondent and the record of proceedings but could not see where issue of Limitation Act was properly pleaded or evidence to that effect duly adduced. As such it would be a useless exercise if I attempt to dissipate further energy in trying to take a decision in favour of the respondents desire to contend. That being the case, his request is turned down without much ado.
Having disposed of both notice of preliminary objection and desire to contend by the respondent, I will now embark on treatment of the main appeal proper.
I have considered the formulation of issues by the parties. The issues distilled by the appellants are a little bit verbous and prolific at the same time the respondent’s formulation is quite compact and solid which captured and encompassed what had actually happened at trial court. It goes without saying therefore that in considering this appeal, I will make use of the three issues formulated by the respondent reserving the right for me to visit other specific issues as formulated by the appellants if need arises.
Before I delve into the arguments on the issues, I wish to state the position of the appellants vis-a-vis the land in dispute as perceived by the respondent. This will help in through understanding of the case. Going by the amended statement of claim, the following stood clearly:
That the plaintiffs claimed declaration of title over the piece or parcel of land on which defendant is allegedly encroaching upon.
They also asked for perpetual injunction restraining the defendant by himself his agents, servants, successors, privies or workers from further encroaching or trespassing on the plaintiffs’ family land at Masudo Village, University of Ilorin Road, Ilorin. The appellants testified and called a surveyor as PW2 who surveyed the land in dispute. The substance of the appellant’s case is that the land in dispute is a part of land they inherited from their forefathers. Meaning that their forefather (name withheld?) was the original owner. That sometime in 2002, they met the respondent on the land and he could not produce the document concerning the land when it was demanded from him. He also refused to vacate the portion he was occupying.
They went to court to eject him out of their land. This mildly is the position of the plaintiffs concerning the land in dispute.
The respondent herein, who was the defendant in the trial court, took a different position herein. The defendant by his pleading and oral testimony asserted that he bought the portion in question from 3rd plaintiff, Kawu Ora.
The defendant/respondent further stated that the appellants later enjoined him to pay for the land in dispute if he wanted to retain the said portion. He testified that he reluctantly paid the agreed sum and peace was maintained until 2002 when the appellants approached him again for more money on the land under the pretence that the new village head, called Oba aba, was appointed. The respondent, herein, refused to.
The fulcrum of the submissions of the learned counsel for the respondent is that the respondent has laid a good foundation for their motion which prayed the court to amend the statement of defence, specifically paragraphs 6, 7, 8(e), (c), (d) and 9 on 16/6/04.
He then submitted that the learned trial Judge rightly captured the essence of the amended paragraphs as follows:-
” … it is pertinent to look at the paragraphs for which us (sic) sought amendment and see whether new issues or different case has been formulated from that which is already before the court or the amendment is capable of substantially altering the case before the court whether in form or in substance”.
Learned trial Judge referred to the paragraph (1)(b) and contended that what is added was already contained in the original statement of defence.
He also mentioned that they added paragraph 7 “The defendant shall rely on the said native laws and equitable defence available to him”.
Referring to paragraph 8 of the original statement of defence, that court stated that he the defendant has since put the land to positive use for years and in the proposed amendment he adds that he constructed and maintains a road from the main road to the land. He has transferred some of the plots to some other persons who have built houses on it and he has fenced the whole land.
Coming to paragraph 9, he adds that 3rd plaintiff (as one of the owners of Masuda land) still transfer the remaining Masudo land.
Learned Judge contended that in his opinion, none of the amendment above is bringing in any new issue or over-reaching the plaintiffs. It is already in evidence before the court that the plaintiffs are members of Masudo family, see paragraph 1 of the amended statement of claim court continues, and states that the amendment at paragraph 7 that the defendant shall rely on native law and equitable defence available is in line with 1 and 2 of the amended statement of claim in which the plaintiffs claim they are customary owners of the land which was transferred to them by virtue of succession. So I held (sic) that these paragraphs, if the amendment sought is granted cannot be overreaching the plaintiff or cause any injury or injustice to him” see pages 94 – 95 of the record of proceedings.
Finally, the trial court, respondents counsel argued, rightly concluded that the application has merit and it was granted.
Respondents counsel submitted that the learned trial Judge reasoning and conclusions are in order and that he exercised his discretionary power judicially. He relied on Oladimeji v. The Queen (1964) 1 All NLR at page 131.
Learned respondents counsel referred, in passing, to the evidence of DW1 and DW2, whose evidence, according to him, concentrated on dismissed counter-claim, their evidence is therefore of no moment, and the fact for the application for amendment was satisfactorily placed before the court.
The learned counsel for the respondent again referred to complaints of the appellants over the amendment sought and obtained on 16/6/2004. He said that the complains are summed up as follows:
(a) The plaintiffs have closed their case before the application was heard and granted.
(b) The amendment allowed by the trial court is a special defence that ought to be specifically pleaded.
(c) New issues, laches and acquiescence introduced.
(d) The plaintiffs could not at that stage challenge the averments contained in the amended paragraphs.
Learned counsel then contended that the above submissions (a) – (d) above cannot prevent the Honourable trial court from exercising its discretionary power. It was stated that “An amendment of pleadings for the purpose of determination of real questions in controversy between the parties ought to be allowed unless it entails injustice or surprise or embarrassment to the other party” he cites:-
Mobil Oil (Nig.) Ltd. v. Nabson Ltd. (1995) 7 SCNJ 267 at 277, (1995) 7 NWLR (Pt. 407) 254; also Bank of Broda v. Iyalabani (2002) 7 SCNJ 287 at 308; (2002) 13 NWLR (Pt. 785) 551.
Learned counsel for the respondent re-iterated that the complaints of the appellants above cannot amount to embarrassment or injustice. Also the fact that the plaintiffs have closed their case before the amendment was sought and obtained, in paragraphs 5, 6. 7 and 8 of amended statement of defence, consequently the plaintiffs could not challenge the averments therein are of no consequence because the trial court, by applicable rules of the court is empowered to grant amendment at any stage of the trial.
Learned counsel then stated that what prevented the appellants from cross-examining the defendant’s witnesses to controvert a fact pleaded by the defence? This is because it is settled that the plaintiffs is entitled to lead evidence through his own witness or by cross-examination of the defendants witnesses – Gaji v. Paye (2003) 5 SC 53/61; (2003) 8 NWLR (Pt. 823) 583.
Furthermore, the respondent’s counsel submitted that the amended statement of defence are not special defence nor new issues, contrary to the submission of the appellants counsel, as rightly pointed out by the trial court in his decision on pages 94 – 95. He empathized that the amendment neither raised new issues nor caused any injury to the plaintiffs.
Learned counsel then argued that even if it is equitable defence it is not necessary to plead same in a special form so long as it is stated in a manner to show that it is relied upon – NBCI v. Integrated Gas (Nig.) Ltd. (2005) 1 SC (Pt. 1) 135 at 141; (2005) 4 NWLR (Pt.916) 617. He then urged this court to affirm the judgment of the lower court.
On the issue of alleged violation of the appellants right of fair hearing because the trial court refused them leave to re-open their case to call additional witnesses after, the court accorded the defendants, similar opportunity, the respondent’s counsel submitted that the discretionary power of courts are not exercised for mere asking, a party who wishes the courts to exercise the power in his favour must convince that court with hard facts. He added that each application is decided on its own merit. The appellants herein failed to do so. The trial court then concluded that the appellants’ application for the re-opening of the matter at the end of the evidence would overreach the defendant.
Learned respondent’s counsel contended that the plaintiffs in the lower court failed to satisfy the guidelines for judicious and judicial exercise of such discretion as provided by the Supreme Court in A.-G. of Federation v. Alkali (1972) 1.2 S.C. 29. The guidelines as laid down by the Supreme Court are:-
(a) The evidence sought to be adduced must be such that a diligent person cannot obtain at the trial.
(b) The evidence admitted would have important effect on whose case.
(c) The evidence ex-facie must be credible.
Learned counsel then stated that, though not conceding, if the document sought to be tendered was not available at the hearing of the matter the appellants have failed to make good use of the opportunity given to them by the trial court at pages 119 line 20 of the record of proceedings.
He then urged this court to affirm the order of the trial court that the application is a “ploy to parch up the plaintiffs’ case”. He cannot therefore complain of lack of air hearing or relied on same to explain a wasted opportunity granted him to exercise the right he is now complaining about. Learned respondents counsel urged us to disregard the submission of the appellants and affirm the order of the trial court.
On this issue, the appellants’ counsel referred to grounds 1, 3 and 6 and stated that their grouse is that how can the trial court allow the defendant to amend their statement of defence after the closure of the case for the plaintiffs and when the plaintiffs demanded similar indulgence the court turned down same.
The motion of amendment of the defence was objected to by the appellants on the ground that the plaintiffs at the stage the case was, would not have any opportunity to rebut. The learned trial Judge overruled the appellants and granted the prayer for amendment sought. That being the case, the plaintiffs on 22/9/2004 moved their own motion to file a consequential reply to the amended statement of defence and counter-claim, same was granted. It was a surprise to the plaintiffs that when they wanted to re-open their case by calling additional witness and to tender document, in accordance with the grant of their application, it was refused by the same court.
Learned appellants counsel conceded that an amendment can be granted at any stage of proceedings provided the party seeking to amend is not setting up a new case at the extreme late stage of the proceedings and if granted will not entail injustice to the party which cannot be compensated by costs or otherwise. He relies on;
(1) Ikyernum v. Iorkumbur (2002) F.W.L.R. (Pt. 110) page 1908 at pp. 1921 – 1922; (2002) 11 NWLR (777) 52.
(2) Shell B.P. Petroleum Development Co. v. Jammal Engineering (Nig.) Ltd. (1974) 4 SC 33 at pp. 74-75
(3) Ojah & Ors. v. Ogboni & Ors. (1976) 1 N.M.L.R. 95/99 and (4) Foke v. Foko (1968) N.M.L.R 441.
The appellants argued that from the above, there is no gainsaying that the defendant did introduce new issues of laches and acquiescence in paragraphs 6, 7 and 8 of the amended statement of defence and counter-claim which the appellants could not have had an opportunity of reacting to when the appellants were testifying, they were not cross-examined with these facts, learned appellants counsel added. Learned counsel then submitted that the lower court erred in law in allowing the amendment at the late stage of the proceedings especially when the plaintiffs had closed their case and much more before closing their case the issues raised in the amendment sought by the defendant were never used to cross-examine any of the plaintiffs witness so as to enable them react thereat one way or the other. Learned counsel also argued that the amendment ought not to have been granted because the plaintiffs could not have got an opportunity of rebutting the new issue been raised in paragraphs 6, 7 and 8 of the amended statement of defence counter-claim. Learned counsel then submitted that on p.10 of their appellants’ brief “that a defence which amounts to a “special defence”. The defence of laches and acquiescence limitation of action, is a special defence which ought to be pleaded by the party relying on the same” He cited Anyaorah v. Anyaorah (2001) F.W.L.R. (Pt. 73) 178 at p. 208; (2001)7 NWLR (Pt.711) 158. It is also submitted that failure by the defence to plead the same before the close of the plaintiff’s case is fatal to the defence case as same should not be raised without the plaintiff having an opportunity of reacting to it Ndinwa v. Nwacho (2001) FWL.R. (Pt. 51) 1903 at 1909 per Rowland L. v. JCA (2001) 7 NWLR (Pt. 711) 158. See also Ojobaru v. Kuku(1986)3 NWLR (Pt. 31) 697. He urged this court to resolve this issue in favour of the appellants and set aside the judgment of the court below.
I have taken pains to consider issue No. 1 and the submissions of both counsel and the grounds of appeal under this issue. I looked into the reasons why the respondent’s counsel argued against the stance taken by the appellants’ counsel. It is settled law, and both counsel agree, that the trial courts are allowed free hand to exercise their discretion to amend any pleading anytime before judgment provided no new issues have been introduced thereby. The amendment sought should not be allowed to introduce different case from that which is already before the court whether in form or in substance. Authorities are a bound on this point. Whatever happens I hold the trial court should not be lightly prevented from exercising its discretionary power in allowing the amendments of pleadings in favour of the defence or the plaintiffs. I could have described that discretion of the trial court as unfettered if not because of the requirements of not to cause embarrassment, surprise and injustice to the other party. It was beautifully put thus:-
“An amendment of pleadings for the purpose of determining the real questions in controversy between the parties ought to be allowed unless such amendment will entail injustice or surprise or embarrassment to the other party” Nabson Ltd. v. Mobil Oil supra at p. 227.
So generally, the purpose of amendment is to enable the court deciding the matter, to decide the rights of the parties and not to punish them for mistake they might make after all, the purpose of amendment is to do substantial justice between the parties. Where there is evidence on record to support the amendment of pleadings, amendment should be allowed at any stage of trial even in the Supreme Court. It can be allowed even after the parties have closed calling evidence, subject to the exceptions mentioned earlier. See the following cases; Ojah v. Ogboni supra; Okafor v. Ikeanyi (1979) 3 and 4 SC 99; Aboyeji v. Momoh (1994) 4 SCNJ (Pt. 11) 302, (1994) 4 NWLR (Pt.341) 646 and Loutfi v. Czarnikow Ltd. (1952) 2 All E.R. 823 – 824. See also the case of Ojah v. Ogboni & Ors. (1976) 4 S.C. 69.
In Oguntimehin v. Gubere and Anor. (1964) 1 All NLR p. 176 the Supreme Court upheld an amendment of pleadings after close of evidence and made the following observations on page 180:
“In the present case either party called his surveyors at the start of the trial, and both parties agreed on what was in issue between them by reference to their plans.
In effect they proceeding with the contest as if the plaintiffs’ pleading had been what it became after the amendment; all that the amendment did was to write down what the defendant had known all along to be the plaintiffs’ case. The amendment did not take him by surprise, and he has no just cause for complain”. Per Madaarikan, JSC.
In my judgment, I will hold that the trial court was justified in ordering the amendment to some extent. But he was not at all justified in refusing the appellant’s similar opportunity to adduce witness or witnesses and tender document to rebut and debunk the stance taken by the defence in paragraphs 6, 7 and 8 of the amended statement of defence.
There is ample evidence and a plethora of authorities to back it up, that the defence did not plead those special defence of laches and acquiescence before the close of the plaintiff’s case. If the court should allow it, as it did, in this case, the plaintiffs must be given an opportunity to rebut or respond to it if they can. This new defence was not originally pleaded in the record. It actually intended to introduce a new cause of action and overreach the plaintiffs. It is clear that there is no way the plaintiffs could have been capable at that stage to traverse or debunk it. In the case of Ndinwa v. Nwaebo supra at page 1909, my learned brother Rowland, JCA has said it all when he made the following statement: See: Anyaorah v. Anyaorah (2001) F.W.L.R. (Pt. 73) 178 at p. 208; (2001) 7 NWLR (Pt. 711) 158. It is submitted that failure by the defence to plead the same before the close of the plaintiff’s case is fatal to the defence case as same should not be raised without the plaintiffs having an opportunity of reacting to it. In Ndimva v. Nwaebo (2001) F.W.L.R. (Pt. 51) 1903 at 1909; (2001) 6 NWLR (Pt. 709) 311, the defendant after the plaintiffs had closed their case called a witness and thereafter brought a motion to amend his statement of defence. The application was refused. Being dissatisfied with this decision the defendant appeal to the Court of Appeal and Rowland, JCA has this to say:
“In the case in hand, it is manifest from the record that the amendment sought by the appellant herein after the commencement of the appellant’s case was injurious to the case of the respondents. It sought to introduce a new cause of action, overreach and prejudicial to the respondents … ” A perusal of the document sought to be substituted raised profound issues which the respondents could not have been expected to properly traverse and lead evidence on. There ought to be an end to litigation. It is also manifest from the record that the appellant took the respondents by surprise, therefore the trial court was right in exercising its discretion against a grant of the amendment sought.”
The most annoying thing was for the learned trial Judge to ignore the just resistance and opposition of the learned plaintiff’s counsel in allowing the amendment of the statement of defence and to disallow the plaintiffs to call further evidence to debunk the allegations in the amended statement of defence. This is a clear injustice, with due respect to both learned trial Judge and the respondents counsel. Has the trial court allowed the amendment of the statement of defence and allowed the plaintiffs to adduce evidence to counter the amended paragraphs in the amended statement of defence and later decided against the appellants, one would not have attempted to disturb the decision of the lower court. The paragraphs in the amended statement of defence are ridiculous and illegal. The most amazing thing is how the learned trial Judge allowed the said unfair and illegal amendment weighs heavily in the mind of the trial Judge that beclouded his vision and forced him to arrive at unjust decision on page 127 of the record of proceedings. How can any right thinking legal mind say that the discretion of the learned trial Judge was exercised judiciously and judicially, a Judge does not have unfettered discretion to order an amendment to the pleading which went against the interest of the other party unjustifiably.
The plaintiffs were unjustifiably denied their right to fair hearing, that being the case, the judgment dished out by the trial court is tainted, vitiated and defective. I refer to Samuel Jimoh Eshemake v. Chief Napoleon Obinije & Ors. (2005) All F.W.L.R. (Pt. 289) 1270/1291 where it was held thus:
” … a court or tribunal must always at all times and in all odds balance its discretionary power to refuse or allow one form of an act or the other in its duty to endeavor to give to the parties a fair hearing on the merit of the case, provided always that no injustice is thereby caused any of the parties.”
I consider the submissions of both counsel and hold that in this peculiar case, the learned trial Judge fell in a great error when he refused the request of the plaintiffs to reopen its case to rebut the paragraphs 6, 7 and 8 of the amended statement of defence and counter-claim. This court therefore resolves issue number one in favour of the appellants and the decision of the lower court is set aside.
On the 2nd issue i.e. whether the unilateral sale of family land by the 3rd plaintiff to the defendant which was a voidable act could be subsequently ratified by the plaintiff’s family with or without the head of the family? I have already produced the position taken by the respondent’s counsel that the transfer by the 3rd plaintiff was bad and ineffective but subsequent agreement by the Masudo family and their acceptance of the extra consideration amounts to fresh transfer or ratification of earlier ineffective transfer. The appellants complain under this issue is that the so-called ratification or fresh sale was not pleaded and same is a special defence that must be particularly pleaded.
The appellants’ counsel contended that the evidence which was before the trial court was to the effect that none of the three units of the appellants’ family can validly sell or dispose off any portion of the plaintiffs’ land without the consent and express approval of the other units including the Bale who is the overall head. The purported sale of the family land without the consent of the Masudo family is not only voidable but void ab initio. They referred to Lukan v. Ogunsusi (1972) 1 NMLR 13 at 16 per Ademola, CJN. I have considered the analysis and submissions of the appellants’ counsel on pages 12 – 16 of their brief of argument and held that the trial court was in error when it dismissed the plaintiffs’ case.
I hold as held by Ademola, CJN in Lukan v. Ogunsusi supra, that the sale of family land by the head of the family is voidable, whilst a sale by the principal members of the family in which the head of the family does not consent is void ab initio.
(Italics mine)
In this case, there is no credible evidence that the sale by the 3rd plaintiff to the defendant took place and certainly there was no any ratification of the purported sale which I now consider as void ab initio, and I so hold. The second issue is therefore resolved in favour of the appellants and the judgment of the trial court is therefore set aside.
I have finally looked into other subsequent issues and the submissions of both counsel and because of the order I intend to make, I will not deal with them decisively. Suffice it to say that the decisions of the lower court are untenable, same are hereby set aside.
The appeal is allowed, same is reverted back to the Chief Judge of Kwara State for retrial before another Judge of the High Court Ilorin. Five Thousand Naira costs to the appellants against the respondent.
Appeal dismissed.
Appearances
J. O. AshaoluFor Appellant
AND
A. B. JimohFor Respondent
