MRS. OLUFUNMILAYO W. TOMORI & ORS v. PROFESSOR OLUGBENGA OSOBA & ORS (2016)

MRS. OLUFUNMILAYO W. TOMORI & ORS v. PROFESSOR OLUGBENGA OSOBA & ORS

(2016)LCN/8405(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 23rd day of March, 2016

CA/I/29/2006

RATIO

COURT: RULE OF PLEADINGS IN NIGERIA; SITUATIONS WHEN FURTHER AND BETTER PARTICULARS IS REQUIRED AND THE FUNCTION OF PARTICULARS
On the rule of pleadings in Nigeria and more importantly on when further and better particulars is required, the Supreme Court gave this picturesque exposition in the case of Atiku Abubakar GCON and 2 ors. vs. Alhaji Umaru Musa Yar? Adua and 5 Ors. (2008) 4 NWLR (pt. 1078) 546.
‘A party asks for further and better particulars where, in his view the pleadings are not only generic and omnibus but vague, nebulous and lacking specificity. In such a situation, the party asks for further and better particulars to make the pleadings more exact or precise. The purpose of further and better particulars is not to amend or rewrite the pleadings. The purpose is to explain them so that they can sound more exact and precise. See Nwobodo vs Onoh (1984) 7 SCNLR I.” Per Niki Tobi JSC at page 503 para E-H (Underlined for emphasis)
Another object is to limit the generality of the pleadings. They prevent surprise at the trial and limit inquiry at the trial to matters set out in the particulars: they tend to narrow issues. See ATIKU ABUBAKAR, GCON & 2 ORS. V ALHAJI UMARU MUSA’YAR ADUA & 5 ORS (supra).
It is also said that the main function of particulars are that they appraise the party asking for them more specifically of the case he has to meet at the trial and limit the generality of pleadings thus delimiting more clearly the issues. Emmanuel Taiwo Ayeni vs. William Abiodun (1992) S SC 60 at 67 Sowemimo; Yorkshire Provident Life Assurance Co vs. Gilbert and Ravinton (1895)2 QB, 148. See also Civil Procedure in Nigeria by Nwadialo at page 409 where the learned author explained the rationale thus:
“Where, however, a pleading states the facts in general, broad or vague terms or does not contain supplemental facts necessary for reasonably narrowing the issues, a party served with it, may apply for further and better particulars. If he does not, he may be handicapped. Ibid at 409.
According to Nwadialo at page 413 of his book op cit, “Particulars are pleadings and therefore subject to the rule that evidence should not be pleaded. Accordingly particulars of evidence or names of witnesses will not be ordered by the Court but if the particulars are of material facts, it is not objectionable that in the process of pleading them, some portion of evidence to be relied on by the pleader is incidentally. disclosed.” for which the case of Bishop vs. Bishop (1901) P, 325 was given. In this case, the respondents in paragraph 7 of their statement of defence pleaded facts relating to certain disposition of part or portions of the property of Chief Samuel Taiwo Osoba at Maryland Lagos. The Paragraph is herewith reproduced:
That further to paragraph 6 above, the Defendants avers that the late Chief Samuel Taiwo Osoba subsequently subdivided the land into smaller parcels of land and he transferred and conveyed his interest to third parties including
i. Mr. Muraina Aderibigbe Osoba (nephew of the deceased) by a registered Deed No.54/54/655 dated 12th July, 1963 and registered at lbadan (now in Lagos).
ii. Chief (Mrs) Simisola Osoba (wife of the deceased) which interest was also registered and the Defendants shall found on the deed of conveyance at the trial of this suit.
iii. Madam Towolawi which interest was also registered in the 1960s.
iv. The 2nd Defendant (son of the deceased) whose interest was also registered.
v. Premier Tyre Retreading company Limited whose interest was also registered by a Deed of Conveyance dated 8th September, 1964 as No 57 at page 57 in volume 767 of the Land Registry Office at lbadan (now in Lagos).
vi. The deceased Chief S. T. Osoba made similar grant of plots of land to other children Nephews and nieces at (Idi-Ishin) Ibadan and (Imoru Road) Ijebu-ode in his lifetime. It will be observed that essential particulars of the disposition of part or portion of the Maryland Property were given including registration particulars or names of beneficiaries or time of disposition. Anyone interested or disputing the validity or regularity of the dispositions may investigate the facts in the pleadings given with a view to either acceding to the facts or disputing such facts. In respect of paragraph 11 of the statement of defence, 2nd respondent allege in that pleading that he acquired interest in Land belonging to Premier Tyre Retreading Co. Ltd through the deceased before the company folded up. The nature of the acquisition was not given as was done in Paragraph 7 (v) of the statement of defence where the conveyance to Premier Tyre Retreating Co. Ltd was given with particulars of registration. One wonders why, in a case where the ownership of the Maryland property is in serious dispute, the particulars of any acquisition of part would not be given for investigation or verification by a party interested. The trial Judge tried to justify his refusal to order particulars on the ground that it would amount to pleading evidence which the rules of pleadings prohibit. With due respect to the Learned trial Judge, there is a very, very thin line, indeed tenuous line between fact and evidence, sometime, the line does not exist. As was stated in Bishop vs. Bishop (1901) P.325, if the particulars are of material facts, it is not objectionable that in the process of pleading them, some portions of evidence to be relied on by the pleader is incidentally disclosed. On this basis, I think the Learned trial Judge was in error to have refused to order better particulars of paragraph 11 of the statement of defence. PER. NONYEREM OKORONKWO, J.C.A.

JUSTICES

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

Between

1. MRS. OLUFUNMILAYO W. TOMORI (FORMERLY MRS. OLUFUNMLAYO W. AJAYI)
2. MR. OSOTAYO ABIOLA OSOBA
3. MRS. OLUFOLAKE O. ADU
4. MR. OLUFOLAJIMI A. OSOBA
5. MR. ADELEKE BABALOLA OSOBA
6. MR. OLUMUYIWA OLAYINKA OSOBA
7. MR. ADENIYI FOLARIN OSOBA
8. MR. OLUSANYA GBOLADE OSOBA
9. MR. OLUFUNMILOLA OSOTADE OSOBA
10. MRS. FOLASADE OLUYEMISI OMOLE
11. MISS. BUNMI OSOBA
12. MR. BOLANLE ADEKUNLE OSOBA Appellant(s)

AND

PROFESSOR OLUGBENGA OSOBA
CHIEF (ENGR.) BABAFEMI O. OSOBA
RT. REVEREND JOSEPH AKIYELE OMOYAJOWO BISHOP OF IJEBU DIOCESE, CHURCH OF NIGERIA (ANGLICAN COMMUNION). Respondent(s)

NONYEREM OKORONKWO, J.C.A.(Delivering the Leading Judgment): The appellants in this appeal were plaintiffs in the High Court in suit No. HCJ/108/2005 wherein, as such plaintiffs they sued the respondents herein as defendants in that Court claiming as follows:
A DECLARATION against the first and second Defendants that the purported will of the Deceased dated the 7th August, 1996 and prepared by the firm of Ayoola Omolewu & co. is null and void on the grounds that the said will was not made by the Deceased or otherwise not made with the full knowledge and approval of the Deceased.
A DECLARATION against the first and second Defendants that the will dated 24th day of October, 1994 is the last known, valid and subsisting will of the Deceased and therefore qualified to be admitted to probate as against the 1996 Will.
A DECLARATION against all the Defendant that the gift of the Main House of the Deceased at No. 11, Oya Street, Imepe ljebu-Ode (now No. 7 Taiwo Osoba street, Imepe ljebu-ode) by the first and second Defendants to the church administered by the third Defendant is unlawful being contrary to the testamentary wishes of the Deceased.

ALTERNATIVELY to (3), A DECLARATION against all the Defendants that the license granted by the first and second Defendants to the church administered by the third Defendant for use of the said main House of the Deceased at Imepe, ljebu-ode as a church is unlawful being contrary to the testamentary wishes of the Deceased.
AN ORDER OF PERPETUAL INJUNCTION restraining the third Defendant, his vicars, Agents, privies whomsoever and by whatever Name called from any further acts of trespass upon the Main House of the Deceased at No. 7, Taiwo Osoba Street Imepe, Ijebu-Ode for the purpose of running a church thereon or for any purpose whatsoever.

In the endorsed statement of claim, the plaintiff averred that they and the 1st and 2nd defendants/respondents were children of Chief Samuel Taiwo Osoba who died on 5th July, and who lived at No. 7, Oya street now Taiwo Osoba street. The said deceased had 18 children including the parties stated.

The deceased Samuel Taiwo Osoba, the appellants pleaded, had real property in Ibadan Oyo State, Ijebu-Ode in Ogun State and Maryland in Lagos State. The Lagos property was situate at Ajose Street Maryland Lagos.<br< p=””

</br<

The deceased Samuel Taiwo Osoba had made a Will dated 24th October, 1994 and deposited in the probate Registry of the High Court of Lagos State.

The deceased, it was pleaded also deposited a copy of the said Will with his kindred relative Pa Olushado for safe keeping. The said Pa Olushado died on the 6th of July – a day after the death of Samuel Taiwo Osoba. A search for the will in the box where the deceased Olushado kept valuables revealed nothing.

Further inquiry led plaintiffs to the Probate Registry Lagos where the will of late Samuel Taiwo Osoba was read. No sooner was this done that appellants received a letter from the firm of Ayoola Omolewu & Co. informing applicants that the deceased Samuel Taiwo Osoba had instructed them to make a will in 1996 which was deposited in the probate Registry.

Appellants plead that the 1996 will was doubtful as opposed to the 1994 will of which appellants pleaded thus at paragraph 22 and 23 of the statement of claim thus:
The Plaintiffs plead that while the 1994 will of the Deceased made an equitable distribution of the Maryland property amongst the children of the Deceased, the purported 1996

will declared that the Deceased had sold the said property to the second Defendant during the lifetime of the Deceased.
The first and second Defendants who without the grant of probate of any will of the Deceased have been acting as Executors of the estate of the Deceased failed to take cognizance of the Maryland property as part of the estate of the Deceased and have thus evinced the intention to execute or keep executing the questionable and purported 1996 will of the Deceased.

The appellants assert that the Maryland property at Ajose street Maryland Lagos belonged to their father until his death. It was further contended at paragraph of the defence page 30 thus:
The 1st and 2nd Defendants in answer to paragraphs 31 & 32 of the statement of claim deny having any authority or influence on the Deceased in respect of preparation of the will dated 7th August, 1996 and that the Deceased at the time of his death had no vested interest that he could transfer to anybody in the landed property at Ajose street, Mende village, Maryland in Lagos State of Nigeria but:
a. The 2nd Defendant exercised all rights of ownership by building on the land

unchallenged.
b. The building of the houses were not without the knowledge or consent of the Deceased who had ceased to be the owner as back as 1964; and
c. The 1st plaintiff like all other children of the Deceased were privy to the purchase of the land by the 2nd Defendant from the PREMIER TYRE RETREADING COMPANY LIMITED who were from 1964 the legal owners of the land.

Appellant contend that the genuine will of their late father was the 1994 and not the 1996.

In the statement of defence of the defendants and particularly in respect of averments of the appellants concerning the property at Ajose Street Maryland Lagos, the respondents pleaded thus at paragraph 5,6,7 and 9 as follows:
The Defendants deny paragraph 7 of the statement of claim and aver that the deceased had divested himself of the ownership of the parcel of land at Ajose Street, Mende village Maryland in the Lagos State of Nigeria.
In further answer to paragraph 7, 8-13 (both paragraphs inclusive), the late chief Samuel Taiwo Osoba acquired a vested interest in the parcel of land at Ajose street, Mende Maryland in the Lagos State of Nigeria which was registered by a

Deed of Conveyance registered as No. 42 at page 42 in volume 515 at the land Registry office in lbadan (now in Lagos) and dated 19th October, 1961.
That further to paragraph 6 above, the Defendants avers that the late Chief Samuel Taiwo Osoba subsequently subdivided the land into smaller parcels of land and he transferred and conveyed his interest to third parties including:
The Defendants aver that the deceased Chief S.T. Osoba had no testamentary capacity to transfer any interest by will or otherwise in any of the parcels of land referred to in paragraphs 7 (i) to (v) above.

And in particular at paragraph 11 of the statement of defence, the respondents pleaded thus:
The 2nd Defendant further to paragraphs 8, 9, 22 and 23 above aver that he acquired interest in the land belonging to the PREMIER TYRE RETREADING COMPANY LIMITED through the deceased before the company folded up. The deceased and Chief (Mrs.) Simisola Osoba were at all material times some of the Directors of the company along with others such as Chief Dosunmu. Chief (Mrs.) Dosunmu and Chief Dina.

In addition to paragraph 11 of the statement of defence, there were also

specific pleadings in paragraph 18, 26, 28 and 30 by the respondents which are herewith reproduced.
The Defendants in answer to paragraphs 14, 15 and 16 of the statement of claim aver that sometime in August, 1996 the Deceased sent one of the 2nd Plaintiff?s drivers by name Jude Obiliki, ASP to collect his will from Pa Olushado but the later refused to oblige.
The 1st and 2nd Defendants aver in answer to paragraphs 22, 23 and 24 of the Statement of Claim that the 1st Plaintiff has frustrated the grant of probate and inability of the trustee to administer the estate and take care of the younger members of the family whereupon the 1st and 2nd Defendants have been shouldering the responsibility of meeting their needs on demand or request.
The 1st and 2nd Defendants in answer to paragraphs 29 and 30 of the Statement of Claim aver that the Will dated 7th August 1996 was drafted by a Solicitor with instruction from the deceased executed by the deceased in compliance with the law and in the presence of two witnesses.
The 1st and 2nd Defendants in answer to paragraphs 31 & 31 of the statement of claim deny having any authority or influence on

the deceased in respect of preparation of the will dated 7th August, 1996 and that the deceased at the time of his death had no vested interest that he could transfer to anybody in the landed property at Ajose street, Mende village, Maryland in Lagos State of Nigeria but:
a. The 2nd Defendant exercised all rights of ownership by building on the land unchallenged
b. The building of the houses were not without the knowledge or consent of the deceased who had ceased to be the owner as far back as 1964; and
c. The 1st plaintiff like all other children of the deceased were privy to the purchase of the land by the 2nd Defendant from the PREMIER TYRE RETREADING COMPANY LIMITED who were from 1964 the legal owners of the land.

By letter dated 25/10/2005, Exhibit ?C? the appellants requested the respondents for further and better particulars at paragraphs 11, 18, 26,28 and 30 of the Statement of Defence. As appellants were not obliged in their request, they (appellants) brought an application under Order 25 Rule 7 (1) of the Ogun State High Court (Civil Procedure) Rules for an Order directing respondents to give further and better

particulars of paragraphs 11,18,26,28 and 30 of the Statement of Defence.

The application was heard by the learned trial Court and on 17th January, 2006, the Court per Hon. Justice Agbelu refused the application for further and better particulars in respect of paragraphs 11, 18, 28 and 30 and granted the order only in respect of paragraph 26.

Dissatisfied with the ruling, appellant lodged this appeal by Notice of Appeal filed 31/1/06 which raise the following grounds of appeal with particulars which I would like to reproduce.
GROUNDS OF APPEAL
1. ERROR OF LAW
The Learned Trial Judge erred in Law when he held that “I am of the view that the said paragraph 11 (of the Statement of Defence) constitutes sufficient pleadings containing material facts needed to deny paragraphs 8,9,22 and 23 (of the statement of claim) as to the extent and nature of the interest which the plaintiffs/Applicants needed to know and that they will not be taken by surprise as regards evidence on the property in issue. The further and better particulars being demanded constitutes evidence to be led at the trial while Plaintiffs/Applicants’ counsel through

cross-examination can extract the nature and the extent of the interest of the Defendants in the property. It is a fundamental rule of pleadings that only material facts are to be pleaded and not evidence. Although a demand for further and better particulars of any pleadings is aimed at promoting a fair trial so that the other side is not taken by surprise, this however, does not mean that parties should plead evidence.?
PARTICULARS OF ERROR
I. The second Defendant?s averment in the said paragraph 11 that “he acquired interest in the land…,” which all the parties agreed originally belonged to their Deceased father was a vague reply and insufficient pleadings upon the issue.
ii. The second Defendant is obliged by law to furnish the particulars of the transaction/agreement by which he acquired the alleged interest.
iii. The undoubted rule that a party is not required to plead evidence cannot be applied to a request for further and better particulars which particulars may infact consist of evidence.
iv. The fact that a party can extract the subject of the further and better particulars by cross examination will not deny him

of the request if indeed, the pleadings on the issue in question are vague as in this instance.
2. ERROR OF LAW
The Learned Trial Judge erred in law when he refused to order further and better particulars of paragraph 18 of the Statement of Defence as requested by the plaintiffs on the grounds “that the further and better particulars requested are unnecessary in that the nature of the instruction given to ASP Obiliki will constitute evidence at the trial. What is more paragraphs 19 of the statement of Defence specifically revealed that the Deceased himself traveled to ljebu-Ode to retrieve the will from Pa Olushado.?
PARTICULARS OF ERROR
i. Answer to a request for further and better particulars may infact, consist of evidence and this is not a justifiable ground to refuse the request.
ii. There is a word of difference between requiring a party to furnish evidence by way of further and better particulars of his pleadings and asking the same party to plead the evidence in his pleadings.
3. ERROR OF LAW
The Learned Trial Judge erred in law when he refused to order further and better particulars of paragraph 28 of the

statement of Defence as requested by the plaintiffs on the grounds that the request for these particulars are not necessary and that it is ridiculous in that the identity of the solicitors have been disclosed and that the solicitor is a potential witness. Any question pertaining to his instructions can be put to him during trial. Besides, the solicitor can be subpoenaed if not call(ed) as a witness by the Defendants.?
PARTICULARS OF ERROR
i. The further and better particulars REQUESTED WILL ENABLE THE plaintiffs to know the evidence which the Defendant have on this “instruction” especially when it is the case of the plaintiffs that the Deceased did not make the 1996 Will, a fortiori instructing any Solicitor to make one.
ii. The identity of the Solicitor is not the same as the evidence that he will give and there is no way the Plaintiffs can properly prepare their case on this point if they have to wait for the Solicitor to appear or be subpoenaed at the trial.
iii. The direct conflict between the cases of the parties on the delicate issue of whether or not the Deceased made the 1996 Will ought to have weighed on the mind of the

Learned Judge for him to consider it necessary to order for the particulars requested.
4. ERROR OF LAW
The Learned Trial Judge erred in law when he refused to order further and better particulars of paragraph 30 of the Statement of Defence as requested by the Plaintiffs when he held that “….all the questions raised in Exhibit “C” regarding the particulars to be furnished are subordinate facts to prove the allegations raised in paragraphs 30 & 31 of the Statement of Claim (sic) (Statement of Defence). These facts will reveal the evidence of the transaction in connection with the date and time of the purchase of premier Tyre Retreading Co. Ltd. In OKAFOR vs. UBN PLC (2000) NWLR (pt. 647) 42 at 47 it was held that it is not necessary to state in the pleadings the subordinate facts which a party intend to use in proving the material facts and that pleadings should contain material facts in issue between the parties.”
PARTICULARS OF ERROR
i. The further and better particulars of paragraph 30 of the Statement of defence requested by the plaintiffs are germane to the plea of “purchase? by the defendants and without them the

plaintiffs will not be able to prepare to meet the Defendants on this issue at the trial.
II. Since the Defendants imputed knowledge of the “purchase” to the plaintiffs, the Defendants are obliged to furnish particulars of the knowledge.
iii. The 2nd Defendant having pleaded a “purchase? without more, he is obliged by law to furnish particulars of the transaction, including consideration there for, as requested by the Plaintiffs.
iv. The Defendants are not required at this stage to plead (which they have done as per their Statement of Defence) but to furnish further and better particulars of their pleadings. The rule against the plea of subordinate facts is therefore not applicable to the question before the Trial Court.

In arguing the appeal, the appellants at paragraph 3.04 and 3.05 at the appellants’ brief argued thus:
In view of the vagueness or evasiveness of the pleadings of the Defendants on the “interest” and “purchase” alluded to in paragraphs 11 and 30 of the statement of Defence and otherwise incomplete pleadings made in paragraphs 18, 26 and 28 of the said Defence, the appellants’ counsel by a letter dated 25/10/05

(p. 28 of record) requested for further and better particulars from the Defendants.
Their counsel refused to furnish same voluntarily. Consequently, the Appellant’s counsel applied to the Court for an order to compel the Defendants to furnish the particulars (p. 14-30)
In its Ruling of 17/1/2006, the Lower Court ordered the Defendants to furnish further and better particulars of paragraph 26 only, but dismissed the application of the Appellants as regards paragraphs 11, 18, 28 & 30 of the Statement of defence.

Citing Order 25 Rule 7 of the High Court of Ogun State (Civil Procedure Rules), appellants list the purpose of the rule relating to provision of better and further particulars as follows:
1. To inform the other party of the nature of the case he has to meet
2. To prevent the other party from being taken by surprise
3. To enable the other party to know the evidence to be prepared for and to prepare for trial.
4. To limit the generality of the pleadings or of the claim or evidence.
5. To limit and define the issues to be tried, and as to which discovery is required.
6. To tie the hands of the party so that he

cannot without leave go outside the matters included in his answer.

Counsel also cites the Supreme Court Practice (England ) 1997 Vol. para, Expounding the issue, the appellants contend that in paragraphs 8, 9, 22 and 23 of the Statement of Claim, appellant had pleaded that the Maryland Property at Lagos belonged to their deceased father and was part of the subject of their deceased fathers 1994 Will. On the contrary, the respondents’ appellants argue, pleaded that the deceased had by a 1996 will renounced ownership of the Maryland property and that the 2nd respondent had acquired interest in the land belonging to PREMIER TYRE RETREADING COMPANY LIMITED through the deceased father of the parties.

Appellants contend that the pleading in paragraph 11 of the statement of Defence is vague and evasive and there was need for better clarity.

Appellants further contend that while they (appellants) insist on family ownership of the Maryland property, the respondents by paragraph 30 of the statement of defence allege that appellant “were privy to the purchase of the property by 2nd defendant i.e. 2nd respondent.”

?This appellant again contends is vague

and misleading and that the nature of the acquisition and the knowledge imputed to them should be clarified.

Furthermore, in paragraph 30 of their statement of claim, appellant had alleged that the only legitimate will of their deceased father was the 1994 Will but on the contrary, respondents contend by paragraph 18 and 28 of the defence that there was a 1996 Will which overrode the 1994 Will, was made by a named solicitor on the instruction of the deceased. Appellants apply for particulars of the instruction given to the said solicitor by way of further and better particulars.

The appellants? counsel rationalized the appellants’ quest for further and better particulars in the argument put up in paragraph 4.07 at their brief thus:
We submit that trial is not a hide and seek game, but a fact finding process with the Judge as the “fact-finder”. The overriding principle enshrined in the rule for further particulars is that litigation between the parties should be conducted fairly, openly, without surprise and as far as possible so as to minimize cost. See AGWUNEDU vs. ONWUMERE (1994) 1 NWLR pt 321, 375 @ 385D. The request for particulars of

paragraphs 18 and 28 aforesaid is intended to enable us know what evidence to prepare for, avoid being taken by surprise, limit the generality of the pleadings of the Respondent and otherwise place the Appellants in a position to make such discovery as may be necessary before trial. The sole reason why the Learned Trail Judge refused to order particulars of paragraph 11 was that the answer will constitute evidence which a party is not required to plead. We submit with respect, that this is a misconception as particulars may, in fact, be evidence which is necessary for a party to prepare his case.

For the respondents, it is important at the outset to note that the respondents filed no counter affidavit at the trial stage at the Court below in opposition to the application for particulars predicated on vagueness of the certain portions of the statement of defence and fair trial of the case. The respondents as it were opposed the application on points of law as the trial Court said.

In so opposing on points of law, respondent argue in paragraph 4.01 and 4.02 of the respondents brief thus:
My Lords, it is trite law that in pleadings, further and

better particulars refers to additional information required to provide sufficient accuracy with respect to a set of pleaded facts in an earlier document. The party who believes that the facts are insufficiently pleaded will issue a request for further and better particulars or a more particular statement of the relevant document. It is also the law that a grant of an order of further and better particulars is at the discretion of the Court. We refer your Lordships to the Supreme Court Practice (England) (‘white ?Book?) 1997 vol.1 paragraph 18/12/20 at page 318 and the case of Astrovolantis Campania Naviera S.A.Vs. Linard (1972)2 Q.B 611. (1972);2 All E. R. 647 C.A As in the instant appeal, counsel often confuses requests for further and better particulars to include the evidence to be used at the trial. However, the law is that requests for further and better particulars only relates to pleadings (which define the issues between parties to an action) and not evidence as rightfully held by the Learned Trial Judge (see particularly pages 38 of the Records of Appeal).

The main point of the argument of the respondent is that pleading must be

of facts in general terms and not evidence by which those facts can be established for which respondent gave the cases of Okagbu Vs. Romaiwe (1982) NSCC (Vol. 13) 130 and Okafor Vs. N.B.N. Plc (2000)3 NWLR (Pt 674) 42 at 47-48.

In this case, the respondent contend that the further and better particulars sought by the appellants are indeed matters of evidence which ought not to be given out at that stage.

Having considered the respective case of the parties, I find it convenient to evaluate this appeal by a review of some rational for the rule of further and better particulars as set out in Para 4.10 and 4.11 of the respondents brief where Respondents state:
On the rule of pleadings in Nigeria and more importantly on when further and better particulars is required, the Supreme Court gave this picturesque exposition in the case of Atiku Abubakar GCON and 2 ors. vs. Alhaji Umaru Musa Yar? Adua and 5 Ors. (2008) 4 NWLR (pt. 1078) 546.
‘A party asks for further and better particulars where, in his view the pleadings are not only generic and omnibus but vague, nebulous and lacking specificity. In such a situation, the party asks for further and

better particulars to make the pleadings more exact or precise. The purpose of further and better particulars is not to amend or rewrite the pleadings. The purpose is to explain them so that they can sound more exact and precise. See Nwobodo vs Onoh (1984) 7 SCNLR I.” Per Niki Tobi JSC at page 503 para E-H (Underlined for emphasis)
Another object is to limit the generality of the pleadings. They prevent surprise at the trial and limit inquiry at the trial to matters set out in the particulars: they tend to narrow issues. See ATIKU ABUBAKAR, GCON & 2 ORS. V ALHAJI UMARU MUSA’YAR ADUA & 5 ORS (supra).
It is also said that the main function of particulars are that they appraise the party asking for them more specifically of the case he has to meet at the trial and limit the generality of pleadings thus delimiting more clearly the issues. Emmanuel Taiwo Ayeni vs. William Abiodun (1992) S SC 60 at 67 Sowemimo; Yorkshire Provident Life Assurance Co vs. Gilbert and Ravinton (1895)2 QB, 148. See also Civil Procedure in Nigeria by Nwadialo at page 409 where the learned author explained the rationale thus:
“Where, however, a pleading states the

facts in general, broad or vague terms or does not contain supplemental facts necessary for reasonably narrowing the issues, a party served with it, may apply for further and better particulars. If he does not, he may be handicapped. Ibid at 409.
According to Nwadialo at page 413 of his book op cit, “Particulars are pleadings and therefore subject to the rule that evidence should not be pleaded. Accordingly particulars of evidence or names of witnesses will not be ordered by the Court but if the particulars are of material facts, it is not objectionable that in the process of pleading them, some portion of evidence to be relied on by the pleader is incidentally. disclosed.” for which the case of Bishop vs. Bishop (1901) P, 325 was given.

In this case, the respondents in paragraph 7 of their statement of defence pleaded facts relating to certain disposition of part or portions of the property of Chief Samuel Taiwo Osoba at Maryland Lagos. The Paragraph is herewith reproduced:
That further to paragraph 6 above, the Defendants avers that the late Chief Samuel Taiwo Osoba subsequently subdivided the land into smaller parcels of land and he transferred

and conveyed his interest to third parties including
i. Mr. Muraina Aderibigbe Osoba (nephew of the deceased) by a registered Deed No.54/54/655 dated 12th July, 1963 and registered at lbadan (now in Lagos).
ii. Chief (Mrs) Simisola Osoba (wife of the deceased) which interest was also registered and the Defendants shall found on the deed of conveyance at the trial of this suit.
iii. Madam Towolawi which interest was also registered in the 1960s.
iv. The 2nd Defendant (son of the deceased) whose interest was also registered.
v. Premier Tyre Retreading company Limited whose interest was also registered by a Deed of Conveyance dated 8th September, 1964 as No 57 at page 57 in volume 767 of the Land Registry Office at lbadan (now in Lagos).
vi. The deceased Chief S. T. Osoba made similar grant of plots of land to other children Nephews and nieces at (Idi-Ishin) Ibadan and (Imoru Road) Ijebu-ode in his lifetime.

It will be observed that essential particulars of the disposition of part or portion of the Maryland Property were given including registration particulars or names of beneficiaries or time of disposition.

?Anyone

interested or disputing the validity or regularity of the dispositions may investigate the facts in the pleadings given with a view to either acceding to the facts or disputing such facts.

In respect of paragraph 11 of the statement of defence, 2nd respondent allege in that pleading that he acquired interest in Land belonging to Premier Tyre Retreading Co. Ltd through the deceased before the company folded up.

The nature of the acquisition was not given as was done in Paragraph 7 (v) of the statement of defence where the conveyance to Premier Tyre Retreating Co. Ltd was given with particulars of registration.

One wonders why, in a case where the ownership of the Maryland property is in serious dispute, the particulars of any acquisition of part would not be given for investigation or verification by a party interested.

The trial Judge tried to justify his refusal to order particulars on the ground that it would amount to pleading evidence which the rules of pleadings prohibit. With due respect to the Learned trial Judge, there is a very, very thin line, indeed tenuous line between fact and evidence, sometime, the line does not exist. As was

stated in Bishop vs. Bishop (1901) P.325, ?if the particulars are of material facts, it is not objectionable that in the process of pleading them, some portions of evidence to be relied on by the pleader is incidentally disclosed. On this basis, I think the Learned trial Judge was in error to have refused to order better particulars of paragraph 11 of the statement of defence.

So, in addition to the order made by the trial Judge for paragraph 26 of the statement of claim, it is also ordered that the respondents do also give further and better particulars of paragraph 11 of the statement of defence.

The request for 18, 28 and 30 of the statement of defence do not fall in the same category as paragraph 11 already considered. Those paragraphs contain sufficient pleadings which can adequately be responded to by a diligent pleader. The application in respect thereof is discountenanced

In final analysis, save as regards paragraph 18, 28 and 30 of the statement of defence, this appeal succeeds and is allowed

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: My learned brother Nonyerem Okoronkwo JCA has adequately addressed the crux of this appeal.

It is indeed appalling that a trite issue such as providing further and better particulars in pleadings should delay the determination of this suit for over 10 years.

The application is not a strange one to law. The case of Fawehinmi v. Akilu (1994) 6 NWLR pt. 35 p387 @ 427 clearly stated the functions/purpose of applying for further and better particulars. (See also Joshua Olorunfemi v. Chief Joshua Akanbi Ojo (1993) 8 NWLR pt. 313 P542.

?It was unnecessary for this matter to drag on for so long on such issue.
I agree with and adopt all the orders made in the lead Judgment. It is hereby so ordered.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the benefit of a preview of the lead judgment delivered by my learned brother, Okoronkwo, JCA. I fully agree with his reasonings and conclusions. I too would allow this appeal in part.

Appearances

N,O. Olaiya Esq.For Appellant

AND

Olumide Sofowora Esq. SAN with Muyiwa Esan Esq.For Respondent