FATAI AFARIOGUN & ORS. V. ALHAJI LIADI LAWAL & ORS.
(2011)LCN/4646(CA)
In The Court of Appeal of Nigeria
On Thursday, the 23rd day of June, 2011
CA/I/113/2006
RATIO
DUTY OF COURT: DUTY OF COURT IN TO CREATE THE ATMOSPHERE OR ENVIRONMENT FOR A FAIR HEARING OF A CASE; WHETHER A PARTY WHO REFUSES TO TAKE ADVANTAGE OF THE FAIR HEARING PROCESS CREATED BY THE COURT CAN COMPLAIN THAT HE WAS DENIED FAIR HEARING
It is the duty of the court to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the court to make sure that a party who refuses or fails to take advantage of the fair hearing process created by the court cannot turn around to accuse the court of denying him fair hearing. That is not fair to the court and counsel must not instigate his client to accuse the court denying him fair hearing. A trial judge can indulge a party in the judicial process for some time but not for all times. A trial judge had the right to withdraw his indulgence at the point the fair hearing principle will be compromised, compounded or will not really be fair as it affects the opposing party. At that stage, the trial judge will, and rightly too for that matter, retrace his steps of indulgence and follow the path of fair hearing as it affects the opposing party, who equally yearns for it in the judicial process. At that stage, the party who is not up and doing to take advantage of the fair hearing principle put at his floor steps by the trial judge, cannot complain that he was denied fair hearing. Such is the situation I see in this appeal. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
FAIR HEARING: WHO CAN TAKE ADVANTAGE OF THE FAIR HEARING PRINCIPLE
The fair hearing principle formerly entrenched in section 33 of the 1979 Constitution, and now section 36 of the 1999 Constitution, is not for the weakling, the slumberer, the indolent or the lazy litigant, but is for the party who is alive and kicking in the judicial process by taking advantage of the principle at the appropriate time. The principle is not available to a party who sets a trap in the litigation process against the court and accuse the court of assumed wrong doing even when such so-called wrong doing is, as a matter of fact, propelled or instigated by the party, through his counsel. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
PLEADING: WHETHER PLEADINGS MAY BE ALLOWED TO BE AMENDED AT ANY STAGE OF THE PROCEEDINGS
Admittedly, pleadings may be allowed to be amended at any stage of the proceedings, provided the amendment does not change or alter the character of the dispute or introduce a new cause of action or over-reach and cause irreparable injustice to the opponent see The Shell Petroleum Development Co. (Nig.) Ltd. v. Ambah (1999) 3 NWLR (Pt.593) 1 at 10 per Wali, J.S.C. (as he was) as follows: “The principle of law relating to the amendment of the pleadings is that it can be granted at any stage of the proceedings provided it does not introduce a new cause of action or will over-reach or is prejudicial to the other party. See Esshelby v. Federated European Bank (1932)1 K,B. 254;” See also Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
RIGHT TO FAIR HEARING: WHETHER A PARTY THAT ALLEGES A BREACH TO HIS RIGHT TO FAIR HEARING IN A CASE MUST PROVE SUCH BREACH IN THE LIGHT OF THE FACTS OF THE CASE
First of all, where a party alleges a breach to his right to fair hearing in a case, he has to prove such breach, and he must do so in the light of the facts of the case. This is because the facts of the case and the facts alone denote non-compliance with the principle of fair hearing. See: – Maikyo vs. Itodo & 4 Ors. (2007) 3 SC (Pt. 11) 34; Akulega vs. Benue State Civil Service Commission, (2001) 53 WRN 83; Orugbo vs, Una (2002. 16 NWLR (Pt. 792) 175; Adeniyi vs. Gov. Council Yaba College of Technology. (1993) 7 S.C.N.J (Pt. 11) 307; Dantata and Sawoe Construction Co. Ltd. vs. Angulu Ibrahim (2003) 31 WRN 80; Ariori vs. Elemo (1983) ANLR 1; Lt. Col. A. Akinwale vs. Nigerian Army (2001) 16 NWLR (Pt.738) 109; Cassidy vs. Federal Republic of Nigeria (2002) 47 WRN 102; Ezeala Nnajiofor and Ors. vs. Linus Ukonu and Ors. (1985) A.N.L.R. 334. PER SIDI DAUDA BAGE, J.C.A
JUSTICES:
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
1. FATAI AFARIOGUN
2. MADAM SARATU AFARIOGUN
3. RASAKI AKIMU AFARIOGUN
4. FASASI AFARIOGUN
5. MADAM AMOPE AFARIOGUN – Appellant(s)
AND
1. ALHAJI LIADI LAWAL
2. CHIEF ELKANAH ARE
3. MOHAMMED ALAO DADA
4. ALHAJI SAIDU LAWAL
5. FASASI KARIMU
6. CHIEF MATHEW OKE
7. AKEEM ABASI – Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal emerged from the decision of the High Court of Justice of Ogun State holden at Ota wherein respondents’ claim for a declaration of title to land, damages for trespass and an injunction were granted against the appellants in favour of the respondents.
Paragraph 27 of the amended statement of claim pleaded the following reliefs against appellants thus:
“27(a) A declaration that the plaintiffs for themselves and on behalf of Ayedokun Iwoye family are the persons entitled to the Right of Occupancy over and in respect of that piece or parcel of land situate, lying and being along Ilogbo Road, via Ota in Ado-odo/Otta Local government Area of Ogun state of Nigeria.
(b) N50,000 (fifty thousand Naira) being damages for the trespass committed by the Defendants when they entered the plaintiffs’ land, felled economic trees thereon and converted various crops on the said land without the plaintiffs authority, consent or approval.
(c) Perpetual injunction restraining the Defendants, their agents, servants or privies from committing any further or other acts of trespass against the plaintiff.”
The controversy between the parties was heard on the respondents, side alone after pleadings were settled and exchanged between them in the court below, on account of the absence of appellants in court in the later part of the proceedings. The court below accepted the respondents, case based on traditional history or evidence of ownership of the disputed portion of land by inheritance or patrimony and acts of ownership of farming and placing customary tenants thereon coupled with long possession of the land arising from the traditional history of acquisition of the land; also, the court below agreed with the respondents that their composite survey plan, Exhibit A, identified the disputed area of land with certainty accentuated by Exhibit C, another survey plan, showing appellants’ own portion of land abutting respondents’ land.
Consequent upon the above findings, the court below awarded statutory right of occupancy to respondents over the disputed land situate and lying along Ilogbo Road via Otta in the Ado-Odo/Otta Local Government Area as delineated in the survey plan in Exhibit A. Also, the sum of N50,000 was awarded as damages to the respondents for trespass said to have been committed by appellants on the land by acts of selling part of the land and the destruction of respondents’ cash and food crops on the land; a perpetual injunction was also issued against the appellants restraining them from committing further or other acts of trespass on the land awarded to respondents by the court below.
Not unnaturally, appellants were aggrieved by the said judgment and filed a notice of appeal with three original grounds of appeal on 19.10.05. By leave of Court more grounds of appeal were added to the original grounds. Learned Senior Counsel, Mr. Oke, settled appellants’ brief of argument dated and filed on 12.10.09. Four issues were winnowed from the grounds of appeal for determination on the appeal as follows:
“(1) WHETHER THE IDENTITY OF THE LAND IN DISPUTE HAD BEEN PROPERLY PROVED OR NOT (GROUND 1).
(2) WHETHER THE APPELLANTS HAD BEEN GIVEN FAIR HEARING IN THIS CASE WHEN HEARING NOTICES WERE NOT SERVED ON THEM. (GROUND 2)
(3) WHETHER THE ORAL APPLICATION OF THE RESPONDENTS ON THE PROCEEDINGS OF THE 6TH DAY OF JULY, 2001 WERE NOT A NULLITY, THE APPELLANTS NOT HAVING BEEN PUT ON NOTICE BEFORE THE APPLICATION WAS HEARD, AND THE APPELLANTS NOT SERVED WITH ANY AMENDED PLEADINGS. (GROUNDS 4 & 5.)
(4) WHETHER THE JUDGMENT WAS NOT AGAINST THE WEIGHT OF ADMISSIBLE EVIDENCE. (GROUND 3)”
Issue one argued that the identity of the disputed land was not proved with certainty by the evidence of the surveyor, P.W 4, and the survey plan in Exhibit “A”, as it did not incorporate the appellants’ survey plan No. WLS/OG/609/93, issues having been joined on the name and location of the disputed land citing in aid the case of Adesanya v. Aderonmu (2000) FWLR (Pt. 15) 2492 at 2498.
Issue two canvassed that neither appellants nor their learned counsel in the court below received hearing notices for the proceedings of 15th and 21st March 2001, 6th and 20th of July 2001, and 27th of July 2001 by the court below in breach of section 36 of the Constitution of the Federal Republic of Nigeria, 1999 read with the cases of Ezeoke v. Igwe (2001) FWLR (Pt.54) 232 at 237, S.P.D.C. (Nig.) Ltd. v. Niger Optical Ser. Co. (2004) 7 NWLR (Pt.872) 240 at 436, University of Agriculture v. Jack (2000) FWLR (Pt.32) 12 at 26; therefore their right to fair hearing was infringed by the determination of the action against them behind their back.
Issue three argued that the oral amendment of paragraph 20 of the respondents’ statement of claim dated 6th December, 1996, “to alter 1987 to 1984 and the plan to read plan No. KESH/G/ABB/1460 drawn by Surveyor Keshinro dated 18/2/84” was substantial, malafide and caused injustice to the appellants who were not afforded the opportunity to react to the oral request for amendment of the pleadings and, also to amend their own pleadings if they so desired vide the cases of Ndinwa v. Nwaegbo (2001) FWLR (Pt.51) 1903, Oguntimehin v. Gubere (1994) 1 ALL NLR 176 at 179, Amadi v. Thomas Aplin and Co. Ltd. (1972) 1 All NLR 409, TIDESLEY V. HAROER (1878) 10 SC 140 at 146 – 147, Nureni v. Bello (1970) All NLR 455, Ojobaro v. Kuku (1986) 3 (1989) 1 NWLR (Pt.95) 85, Ojah v. Ogbari (1976) 4 SC 69, Eke v. Okwaranyia (2001) FWLR (Pt.51) 1974 read with Order 8 Rule 17 and Order 26 Rules 5 and 6 of the High Court (Civil Procedure) Rules of Ogun State.
Issue four articulated that Exhibit B, the survey plan, was wrongly admitted in evidence and the judgment of the court below anchored on it should be set aside under section 227(1) of the Evidence Act dealing with wrongful admission of evidence.
The respondents’ brief of argument prepared by Mr Ojutalayo of learned counsel was dated and filed on 28.10.09. It opened with a preliminary observation that the respondents gave unchallenged evidence before the court below which justified that court to base its judgment on for the respondents following the cases of Neka v. ACB (2004) 3 MJSC 118 at 140, Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt.361) 124 and Omoregbe v. Lawani (1980) 3 – 4 SC 108 at 117.
The issues formulated by appellants were adopted by respondents who argued on the first issue that the appellants did not make the identity of the land in dispute an issue in their statement of defence by specifically disputing the area or size or location and features shown on respondents, survey plan as to contest them on appeal as required by the decisions in the cases of Nwogo v. Njoku (1990) 3 NWLR (Pt. 140) 570 at 581 and Dada v. Dosunmu (2996) 1 NWLR (Pt.1010) 134.
Moreover, the PW3’s evidence and Exhibit A, the survey plan, according to appellants, established the identity of the disputed land which was known to the disputants, notwithstanding the different names given the land ‘Iwoye land” by respondents and “Oke-Olugba land, by appellants, therefore the identity of the land was not in dispute and was also established by respondents and the arguments to the contrary should be discountenanced vide Uche v. Eke (1992) 2 NWLR (Pt.224) 433 at 442 and Aromire v. Awoyemi (19720 1 ALL NLR (Pt.1) 101 at 113; also, the appellants did not file a counter plan to relate to respondents, survey plan and should not be heard to challenge the identity of the land shown in a respondents’ survey plan vide the cases of Archibong v. Ita (2004) 3 MJSC 155 at 178, Elias v, Suleimon (1973) 1 ALL NLR 917 at 927, and Igwe & Others v. Kalu & Others 9 NSCQLR 393.
It was contended on the second issue that the record of the court below revealed that from the beginning of the proceedings in 1999 to the date judgment was delivered in the action, the court below afforded the appellants the opportunity to be heard by ensuring that hearing notices of the date of the proceedings were served on them in advance, therefore they should not be allowed to complain of fair hearing having failed to use the opportunity afforded them to participate in the case vide Okike v. LPDC (2005) 10 MJSC 1 at 82-83, Saliu v. Egeibon (1994) 6 NWLR (Pt.348) 23 at 40, Ceekay Traders v. GM Co. Ltd. (1992) 2 NWLR (Pt.222) 132, Atano v. Attorney-General Bendel State (1988) 2 NWLR (Pt.75) 201, Achuzi v. Ogbonna (2004) All FWLR (Pt.227) 513, M.M.S. Ltd. v. Oteju (2005) 14 NWLR (Pt.945) 517 at 543, Muhammed v. Kpetai (2001) FWLR (Pt.69) 1404 at 1415, Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587, Mohammed v. Kano Native Authority (1968) 1 ALL NLR 424, Ezechukwu v. Onwuka (2006) 2 NWLR (Pt.963) 151 at 181, Malgwi v. Gadzama (2000) 11 NWLR (Pt.678) 258, Usani v. Duke (2006) All FWLR (Pt.340) 1093 at 1100, Echeka Cattle Ranch v. N.A.C.B. (1998) 3 SCNJ 54 at 64 and 74 and Alsthom v. Saraki (2005) 3 MJSC 125 at 148.
Respondents urged on the third issue that the amendment granted on 6.7.2001 was reasonable, just and within the discretionary powers of the court below to allow amendment of pleadings at any stage of the case to accord with the evidence on record in the interest of justice and speedy disposal of the case vide Mobil Producing Nigeria Unlimited v. Umemedino (2006) FWLR (Pt.313) 116 at 119, Otapo v. Sunmonu (supra) read with Order 8 Rules 7(1)(2) and Order 26 rules 5 and 6 of the Ogun State High Court (Civil Procedure) Rules.
Respondents contended on the fourth issue that appellants abandoned their pleadings leaving the court below with the unchallenged evidence of the respondents through PW1, PW3, PW4, Exhibit B incorporating Exhibit A in proof of title and identity of the disputed land which should not be disturbed on this appeal vide Aji vs. Chad Basin Development Authority (2004) All FWLR (Pt.237) 424 at 426, Ezennah v. Atta (2004) All FWLR (Pt.2002) 1858 at 1868, Tanko v. FBN Plc. (2004) NWLR (Pt.863) 425 at 442, Ogun v. Akinyelu (2005) 2 MJSC 92 at 110 – 111, Mogaji v. Odofin (1978) 4 SC 91 at 94 and State v. Aibangbee (1988) 3 NWLR (Pt.4584) 562; upon which it was urged that the appeal be dismissed.
Appellants’ reply brief dated and filed on 3.12.09, contended on issue one that appellant’s filed survey plan No. WLS/OG/609/93 dated 21.6.1993, which was not incorporated in the composite plan pleaded by respondents making the composite plan incomplete therefore Igwe v. Kalu (supra) and Elias v. Suleimon (supra) cited by respondents should be inapplicable to the present case; in respect of issue two, the reply brief argued that the hearing notices ought to have been issued and served personally on appellants, not on their learned counsel as that is the best mode of notification of pending proceedings to parties in respect of any litigation vide Ononye v. Chukwuma (2005) 17 NWLR (Pt.953) 90 at 114, Mai Sonka Co. (Nig.) Ltd. v. Adzege (2001) 9 NWLR (Pt.718) 312 at 324, B.O.N. Ltd. v. Adegoke (2006) 10 NWLR (Pt.988) 339 at 359, and S.P.D.C. (Nig.) Ltd. v. Niger Optical Service Co. (2004) 7 NWLR (Pt.872) 420 at 435.
The reply brief contended on issue three that the amendment was substantiate and ought not to have been granted ex parte, as there was no urgency or irreparable damage confronting the res at the material time, therefore Order 8 Rule 7 (1) and (2) of the Rules of the court below (supra) cited by respondents would not apply to the case; and that, the filing of the amended statement of claim without service of same on appellants breached their right to fair hearing rendering the proceedings a nullity vide Madukolu v. Nkemdilim (1962) SCNLR 341.
The reply brief reiterated on issue four that Exhibit B was wrongly admitted in evidence and should not have been utilized by the court below to base its judgment on it.
The issues formulated by the appellants are apposite to determination of the appeal and same shall be followed in the consideration of the complaints on the appeal.
Paragraphs 3, 4, 6, 8, 10, 14, 15 and 16 of the statement of defence dated 21.11.1998 but filed on 22.1.1998 (pages 44 – 46 of the record) referred consistently to the land in dispute as the piece of land the averments in the statement of defence were intended to meet and repulse the averments in the statement of claim. For clarity, paragraph 14 thereof traversed, for example, that:
“The defendants aver that the land in dispute is part of Osolo Family land called Oke-Olugba which shall be succinctly shown in composite plan to be filed later.” (My emphasis)
The above underlined portion of paragraph 14 of the statement of defence clearly bears it out that the identity of the disputed land is known to the appellants who call it “Oke-Olugba” land. Therefore, the parties knew what they were fighting for, in my view – see Dosunmu v. Joto (1987) 4 NWLR (Pt.65) 297.
Giving the land in dispute different name tags by the disputants would not change its identity. It still remains the land in dispute, whether called “Oke-Olugba land” by appellants or “Iwoye land ” by respondents – see Aromire v. Awoyemi (supra) cited by Mr Ojutalayo for respondents, and Chukwueke & Anor. v. Okoronkwo & Ors. (1999) 1 SCNJ 44.
Appellants having not filed a counter plan, nor disputed in the statement of defence the boundary features, location and dimension of the disputed area of land pleaded by respondents alongside the survey plan in the statement of claim, they cannot, with deference, be heard to complain of or question the issue of identity of the disputed land vide Uche v. Eke (supra), Archibong v. Ita (supra), Elias v. Suleiman (supra), Igwe v. Kalu (supra), Adepoju v. Oke (2999) 3 SCNJ 46; Adesanya v. Aderonmu & Other (2000) 6 SCNJ 242, Iso & Others v. Eno (2003) 7 SCNJ 82, and Ezeudu & Others v. Obiagwu (1986) 2 NWLR (Pt.21) 208 at 220.
Also, the 4th PW, a surveyor by profession, testified in proof of the identity, location and dimension of the disputed land by reference to the survey plan, Exhibit A., adding inter-alia in pages 85 – 86 of the printed record of appeal that:
“In producing the plan Exhibit A, I was given a survey plan Exhibit B signed by Surveyor Kesinro and a photocopy of the Osolo family land Exhibit ‘C’.
I charted Exhibits ‘B’ and ‘C’ together to produce the composite plan Exhibit ‘A’.
What is common to the two family land in Exhibits ‘B’ and ‘C’ is that they share the same pillar numbers and their boundary. The pillars are JK 10497 – JK 10424.
Exhibit A shows the Osolo family land verged black. The Aiyedokun family land is verged green. The portion in dispute is verged Red and it falls within Aiyedokun family land.” (my emphasis).
Accordingly, the identity of the disputed land was pleaded and proved by respondents in the court below, in my modest view. The first issue is on that score, most respectfully, resolved against the appellants.
After the appellants were served with respondents’ application for writ of summons and statement of claim, they caused a joint memorandum of appearance dated 1.3.94 to be filed on the same date on their behalf by their learned counsel, Mr. C.A. Nwikpo of “C.A. Nwikpo and Co. (Asoegwu chambers), 56 Lagos Rd, Sango-Ota” (see page 25 of the record of appeal). At that juncture, all processes meant for appellants were stated to be served on the said address of their learned counsel as borne out in pages 32, 36 of the record. Processes filed on behalf of appellants in pages 41, 44 – 46 of the record also bore the same learned counsel’s address as appellants’ address for service.
The same learned counsel appeared for appellants from the beginning of the court proceedings on 7.2.94 vide page 54 of the record, then on 1.3.94 vide page 55 of the record, and thenceforward, truncated by some requests for adjournment by the same learned counsel; consequently, it was right to put the address for service of court processes on appellants on the address for service furnished by their learned counsel in the memorandum of appearance, as there was no change of address for service and all processes from both parties continued to be served on the same address.
I am therefore, of the considered view that service of hearing notices on appellants’ learned counsel on behalf of the appellants after the memorandum of appearance gave their address for service on the law firm of their learned counsel was, in the circumstances, right and did not offend the decisions in Ononye v. Chukwu (supra) Mai Sonka v. Adzege (suopra), B.O.N. Ltd. v. Adenoke (supra) and S.P.D.C. v. Niger Optical Service (supra) cited by appellants’ learned senior counsel.
The court below recorded in page 75 of the printed record inter-alia that:
“Just for record purposes, there are hearing notices served on the defendants’ counsel and the affidavits of service are at pages 84, 91, 93 and 96 of the case file”
There was no affidavit evidence challenging the above quoted solemn statement of the court below. I take it as establishing service of the hearing notices, on learned counsel in the court below, on behalf of his clients – see Sommer v. Federal Housing Authority (1992) 1 SCNJ 73 at 80, Attorney-General, Anambra State & Others v. Okeke (2002) FWLR (Pt.112) 175.
The court below having assured and satisfied itself by resorting to its own record, as it is entitled to do, that appellants were served the hearing notices through their learned counsel for the proceedings in question, it was right, in my view, to proceed with the hearing of the suit see Societe Generale Bank (Nig.) Ltd. v. Adewunmi (2003) 4 SC (Pt.1) 93 read with Oji Ada v. Ossai Uku (1977) 5 F.C.A. 218, and W.A.P.I.N. v. N.T.C. (1987) 2 NWLR (Pt.56) at 299.
From what has fallen from me so far, it is indubitable that appellants were afforded the opportunity to be heard and/or to participate in the proceedings, but for inexplicable reasons, they chose to boycott the proceedings of the court below and; the said court was, in my modest view, right to proceed with the hearing of the case in their absence – see Newswatch Communications Limited v. Alhaji Aliyu Ibrahim Atta (2006) 4 SCNJ 282 at pages 299-300 thus:
“The constitutional principle of fair hearing is for both parties in the litigation. It is not only for one of the parties. In other words, fair hearing is not a one-way traffic but a two-way traffic in the sense that it must satisfy a double carriage-way, in the context of both the plaintiff and the defendant or both the appellant and the respondent. The court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That will not be justice. That will be injustice.
It is the duty of the court to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the court to make sure that a party who refuses or fails to take advantage of the fair hearing process created by the court cannot turn around to accuse the court of denying him fair hearing. That is not fair to the court and counsel must not instigate his client to accuse the court denying him fair hearing.
A trial judge can indulge a party in the judicial process for some time but not for all times. A trial judge had the right to withdraw his indulgence at the point the fair hearing principle will be compromised, compounded or will not really be fair as it affects the opposing party. At that stage, the trial judge will, and rightly too for that matter, retrace his steps of indulgence and follow the path of fair hearing as it affects the opposing party, who equally yearns for it in the judicial process. At that stage, the party who is not up and doing to take advantage of the fair hearing principle put at his floor steps by the trial judge, cannot complain that he was denied fair hearing. Such is the situation I see in this appeal.
The fair hearing principle formerly entrenched in section 33 of the 1979 Constitution, and now section 36 of the 1999 Constitution, is not for the weakling, the slumberer, the indolent or the lazy litigant, but is for the party who is alive and kicking in the judicial process by taking advantage of the principle at the appropriate time. The principle is not available to a party who sets a trap in the litigation process against the court and accuse the court of assumed wrong doing even when such so-called wrong doing is, as a matter of fact, propelled or instigated by the party, through his counsel.”
See also Muhammed v. Kpetai (supra) cited by respondents’ learned counsel, and Narva Co. v. Monster (1982) 12 C.A. 161 at 174, Dr. Aina v. Obabiolorunkosi (1986) 2 NWLR (Pt.22) 316 at 330, A.S.R. Co. Ltd. v. O.O. Bisah and Co. Ltd. (1997) 11 NWLR (527) 145 at 158, Kaduna Textiles Ltd. v. Umar (1991) 1 NWLR (Pt.319) 143.
The second issue is, also, resolved against the appellants.
The third issue related to the amendment of the statement of claim. For quick appreciation, it is appropriate at this stage to dig in the record of the appeal (to borrow the favorite expression of Alagoa, J.C.A.) in order to resolve the issue. In the course of leading the 3rd PW in evidence in pages 82 – 83 of the record, the respondents’ learned counsel requested orally to amend the statement of claim, which the court below granted and recorded the aspect of the proceedings this way:
“Mr. Ojutalayo: At this stage applies to amend their statement of claim dated 6/12/96 paragraph 20. The amendment is to alter 1987 to 1984 and the plan to read Plan No. KESH/G/ABB1460 drawn by Surveyor Keshinro dated 18/2/84.
Court: Order as prayed 3rd PW: In 1984 we called our Surveyor Keshinro to survey the land for us. Before then we called our boundary men including the Osolo Family to a meeting for the purpose of demarcating our boundaries. There was no dispute with any of the boundary men. And we demarcated our land. Mr. Keshinro produced a Survey Plan for us in 1984. If I see the survey I can identify it. This is the survey counsel seeks to tender it as an Exhibit.
Court: Survey Plan No. KESH/G/1460 of 18/2/84 is hereby admitted as Exhibit B”
The original paragraph 20 of the statement of claim (see page 36 of the record) averred:
“The plaintiffs thereafter in 1987 surveyed their family land and produced survey plan No. APAT/08/340/87 drawn by A.B. Apatira (JNR), licensed surveyor dated 23rd November, 1987.”
Admittedly, pleadings may be allowed to be amended at any stage of the proceedings, provided the amendment does not change or alter the character of the dispute or introduce a new cause of action or over-reach and cause irreparable injustice to the opponent see The Shell Petroleum Development Co. (Nig.) Ltd. v. Ambah (1999) 3 NWLR (Pt.593) 1 at 10 per Wali, J.S.C. (as he was) as follows:
“The principle of law relating to the amendment of the pleadings is that it can be granted at any stage of the proceedings provided it does not introduce a new cause of action or will over-reach or is prejudicial to the other party. See Esshelby v. Federated European Bank (1932)1 K,B. 254;”
See also Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214.
Respondents’ learned counsel referred to the cases of Mobil Producing Nigeria Unlimited v. Umemedino (supra) and Otapo v. Sunmonu (supra) read with the relevant rules of the court below (supra) to contend, in the main, that the amendment granted was to accord with the evidence in the record. Respondents’ learned counsel would have been right if the amendment came after evidence was given. But in the present scenario, the amendment was granted before evidence on the amended matter was given by the 3rd PW. Nor was there any evidence in the record to cover the amendment. In effect, the amendment was granted to enable or facilitate the respondents to tender evidence on it. If it was otherwise amending to tally with the evidence already in the record – the cases cited on the issue by learned counsel to the respondents would have been relevant and in line with accepted practice and procedure of the courts relating to amendments. Accordingly, the said cases are not of assistance to the respondents.
The next issue is on the materiality of the amendment. Appellants had joined issues with respondents on paragraph 20 of the Statement of claim (supra) in their paragraph 11 of the statement of defence (see pages 45 – 46 of record) as follows:
“The defendants admit paragraphs 20 and 21 of the claim, only to the extent, that the plaintiffs have survey plan No. APAT/08/340/87 and not sure of the land surveyed, and that the principal Osolo family surveyed part of the family land in Survey Plan No. ALS/OG68/87, and further state that late Mutairu, father to the 1st defendant and head of his stock was ill and did not contribute to the cost of family survey hence, the stocks part of the land was abandoned. The above plans shall be founded upon.”
Paragraphs 1 and 7 of the reply to the statement of defence (see page 47 of the record) averred:
“1. The plaintiffs deny paragraphs 3, 4, 5, 6, 8, 10, 11, 12, 13, 14, 15, 16 and 17 of the statement of defence and put the Defendants to the strictest proof of the averments contained therein.
7. The plaintiffs hereby plead and put the Defendants on Notice to produce for the inspection of the plaintiffs as in as (sic) at the trial hereof all survey plans made by Osolo family in respect of their land at Ilogbo including and not limited to plan Nos. ALS/OG/68/87 and WLSOG/609/93 also pleaded at paragraph 12 of their statement of defence.”
It is undisputed from the above that the appellants and the respondents joined issue’s on Survey Plan No. APAT/08/340/87 charted or drawn by one A.B. Apatire (JNR) dated 23.11.1987, pleaded by respondents, and plan numbers ALS/OG/68/87 and WLSOG/609/93 pleaded by appellants. The oral amendment granted respondents brought in Plan Number KESH/G/ABB1460 drawn by surveyor Keshinro dated 18.2.84, to replace the already pleaded plan no. APAT/08/340/87. In my respectful view, the amendment was material or important as it had the effect of substituting a new survey plan drawn by a different surveyor on a different date for the one pleaded in paragraph 20 of the statement of claim and traversed in paragraph 11 of the statement of defence and replied to by respondents in paragraphs 1 and 7 of the reply to the statement of defence.
Nor was the amendment on clerical or typographical errors or accidental slip or casual/routine matters arising from the issues joined, on which appellants were expected to meet at the hearing of the case pursuant to the hearing notices served on them through their learned counsel, as to have justified entertaining it orally by the court below.
I think the amendment should not have been entertained on oral application. The appellants ought to have been put on notice of it. The situation would have been otherwise if the respondents had proceeded with the case on the pedestal of the issues joined on the pleadings at the time the appellants were served with the hearing notices through their learned counsel. The procedure adopted by the court which the Supreme Court approved in the case of Oguntimehin v. Gubere (supra) where an oral application for amendment of a survey plan for the area verged “pink” to read “blue” was ordered by the court to be made on motion on notice before it entertained the application, after the other side was given one week notice of it, should have been followed by the court below, in my view.
The oral application for amendment therefore deprived appellants of the opportunity to react to it and denied them their day in court in respect of that aspect of the proceedings which the hearing notices served on them did not anticipate or contemplate on the pleadings.Because, as held by this Court in Arojoye v. U.B.A. & Anor (1986) C.A. (Pt. 1) 234 at 246 (per Wali, Maidama and Akpata, J.J.C.A):
“In considering whether or not to grant an amendment to pleadings, the court must always be guided by the materiality of the amendment sought, the rules of audi alterem partem (fair hearing) and the genuineness of the amendment …” (my emphasis).
It was, in my view, inappropriate for the court below to have heard the respondents orally or off – the cuff in respect of the request for amendment of their pleadings which had the potential effect of disturbing the premise on which the parties had joined issue ;. Therefore, only a notice of motion served on appellants under the relevant Rules of the court below (supra) before the taking of the application by the court below would have met the justice of the case – see by analogy Ozigbe & Ors v. Aigbe & Ors (1981) 4 C.A. 281, where a similar application was heard on motion on notice. Be it, also, noted that after granting the amendment, the court below did not issue the consequential order, as it was expected or bound to do, allowing time for the filing and service of the amended statement of claim on the appellants for them to amend their pleadings, if they so desired, under Order 26 Rules 5 and 6 of the Rules of the court below (supra) before proceeding with the hearing of the action. See Ozigbe v. Aigbe (supra) at 285. In effect, issues were not joined on the amended statement of claim at the time the suit proceeded to trial and conclusion contrary to established procedure to the effect that room should be given for issues to be joined before a suit fought on pleadings should proceed on the merits – see by analogy Ogbechie & Ors. v. Onochie & Ors. (1980) 19 C.A. 28, Moses Sagay v. New Independence Rubber Co. Ltd. & Ors. (1977) 5 S.C. 143 at 147 – 148 and 159 read with Civil Procedure in Nigeria (Second Edition) by Fidelis Nwadialo at pages 476 – 477 citing in support the English cases of Derrick v. William (1939) 55 TLR S76 and Hyams v. Stuart King (1908) 2 KB 696 at 724.
Also, land matters are potentially volatile and deserve to be handled with moderate speed and delicate balance of time by trial courts, in order to ensure as much as permissible or possible that such matters are heard fully or on the merits from both sides of the contest – see Ntukidem v. Oko (1985) 5 NWLR (Pt.45) 909 and Nneji v. Chukwu (1988) 3 NWLR (Pt.81) 184. In my modest view, nothing would have been lost if the appellants were put on notice of at least two clear days of the request for amendment sought by respondents to plead a new survey plan. I would resolve the third issue in favour of the appellants on the tenacious arguments of their learned senior counsel, Mr. Oke. The resolution of the third issue should have been the end of the discourse, but for the fact that this is an intermediate court, the fourth issue shall be looked into. The foundation for the use of Exhibit A in evidence by the court below drew life partly from Exhibit B which should not have been admitted in evidence having been let in by oral amendment of the pleadings as earlier held under the third issue. Remove Exhibit B, the survey plan in Exhibit A becomes toothless or of negligible value. The use to which the court below put Exhibit B when it ought not to have admitted it in evidence in the first instance based on its incurably faulty foundation discussed before now under the third issue, rendered it an exercise in futility – see Ajayi v. Fisher (1956) 1 F.S.C. 90. The fourth issue is also resolved in favour of the appellants. The appeal has merit on the third and fourth issues only. It is hereby allowed. The judgment of the court below is set aside. A retrial of the suit is hereby ordered before another learned Judge of the High Court of Justice of Ogun State to be determined by the learned Chief Judge of Ogun State. The retrial shall be pursued expeditiously having regard to the sensitivity and importance of land in an agrarian society such as that of parties coupled with the age of the dispute which started in the court below in 1993, before Shoremi, J., (as he then was), then before Lokulo- Sodipe, J., (as he then was), and finally before Onamade, J. No order as to costs.
STANLEY SHENKO ALAGOA, JCA: I have had the opportunity of reading in advance the judgment of my learned brother J. S. Ikyegh, J.C.A. just delivered.
I agree with his reasoning and conclusion reached that the appeal be allowed in part, I allow same and abide by all the consequential orders made in the lead judgment including order on costs.
SIDI DAUDA BAGE, J.C.A: I had the privilege of reading before now the well considered judgment of my learned brother J.S. IKYEGH J.C.A. I agree entirely with his decision that the appeal has merit on the third and fourth issues, and thus should be allowed. I can only add a few words of my own on the imperativeness of fair hearing to any proceeding before a court of law.
First of all, where a party alleges a breach to his right to fair hearing in a case, he has to prove such breach, and he must do so in the light of the facts of the case. This is because the facts of the case and the facts alone denote non-compliance with the principle of fair hearing. See: – Maikyo vs. Itodo & 4 Ors. (2007) 3 SC (Pt. 11) 34; Akulega vs. Benue State Civil Service Commission, (2001) 53 WRN 83; Orugbo vs, Una (2002. 16 NWLR (Pt. 792) 175; Adeniyi vs. Gov. Council Yaba College of Technology. (1993) 7 S.C.N.J (Pt. 11) 307; Dantata and Sawoe Construction Co. Ltd. vs. Angulu Ibrahim (2003) 31 WRN 80; Ariori vs. Elemo (1983) ANLR 1; Lt. Col. A. Akinwale vs. Nigerian Army (2001) 16 NWLR (Pt.738) 109; Cassidy vs. Federal Republic of Nigeria (2002) 47 WRN 102; Ezeala Nnajiofor and Ors. vs. Linus Ukonu and Ors. (1985) A.N.L.R. 334.
The question of fairness of a proceeding is quite separate from the question of the merit of the Trial Court’s Decision. When a question of fairness of hearing arises in a case the only purpose that could have been served by the Appellate court considering albeit in a restricted manner, issues of the merits of the case, is to see whether the result of the case would have been the same even if the breach of the principles of fair hearing had not occurred. Whether, that exercise will serve any useful purpose will normally depend on the nature of the breach. Where it will be a matter of speculation whether the same decision would have been arrived at had a hearing not tainted by unfairness taken place, an enquiry into the merits is a futile exercise. See : Idakwo vs. Ejiga (2002) 7 S.C. (Pt.11) 168. From the above and all the detail reasonings contained in the lead judgment, I too allow the appeal on the third and fourth issues, set aside the judgment of the court below, and order a retrial of the suit, following the lead judgment, before another learned judge of the High Court of Justice Ogun State.
I also make no order as to costs.
Appearances
Mr. N.O.O. Oke, (S.A.N);
Mr Oladele). For Appellant
AND
Mr. O.O. Ojutalayo; For Respondent
