Alhaji Azeez Layi Olagunju V. Alhaji Yusuf Adeniran (2001)

LawGlobal-Hub Lead Judgment Report

MURITALA AREMU OKUNOLA, J.C.A.

This is an appeal against the judgment of the High Court of Kwara State holden at Ilorin presided over by Ibiwoye J. The judgment of the court was delivered on 23rd of September, 1998 in favour of the plaintiff as per his amended writ of summons and statement of claim.

The facts of this case briefly put were as follows:
The plaintiff’s claim as per his amended writ of summons and statement of claim at page 99 of the record were:
(a) A declaration that the deed of transfer relating to the house bought by the plaintiff from the defendant and lying and being at opposite Vehicle Inspection Office (behind Federal Housing Estates) Kulende, Ilorin, Kwara State dated 11th of April, 1991 between the plaintiff and defendant is valid with legal effect.
(b) An order of specific performance against the defendant for a contracted agreement of sale on the building situate, lying and being at opposite Vehicle Inspection Office (behind Federal Housing Estate) Kulende, Ilorin.
(c) A perpetual injunction restraining the defendant and or his agents, assigns, or privies from entering or living in the house and from collecting rents on the house and to refund the money so collected from April, 1991 on the house lying and being at opposite Vehicle Inspection Office (behind Federal Housing Estate) Kulende, Ilorin.

The plaintiff/respondent’s writ of summons was filed on 13/7/92. The defendant/appellant, too, filed a separate writ of summons on 7/8/92 claiming three different reliefs.

Each of the writ was supported by pleadings. After a while, parties through their counsel resolved to continue the present suit at hand (i.e. KWS/156/92). While the defendant/appellant claimed 3 reliefs, the plaintiff/respondent claimed the 1st and 3rd reliefs in his writ. It is upon these 2 relief claims in the writ of summons and the statement of claim that the plaintiff/respondent commenced the hearing of his action by giving evidence in support of some averments in his pleadings and he equally called other four witnesses who testified in his favour. The defendant also testified in person and called two other witnesses. The plaintiff/respondent in the course of his testimony before the trial court finally urged the court to grant his claim. (See page 146 of the record of proceedings). As at the time of asking the trial court to grant his claims, the much talked about deed of transfer in the respondent’s amended statement of claim had been rejected while the other claim remaining, was a consequential order which was dependent on the survival of the first claim in the writ and amended statement of claim. It was after the defence started calling evidence that the plaintiff/respondent brought an application for further amendment of his amended statement of claim so as to bring in a new relief and also amend the said consequential reliefs, as couched. This move was opposed and at the end, the trial Judge, by his ruling upheld the amendment. The defence equally filed a further amended statement of defence.

However, the case of the parties at the trial briefly was that sometimes on the 11th day of April, 1991 he bought an uncompleted storey building situate, lying and being at opposite Vehicle Inspection Office (behind Federal Housing Estate) Kulende, Ilorin from the defendant/appellant for a total sum of N70,000.00 commission inclusive. A deed of transfer was prepared and executed in respect thereof by the parties, though the said deed of transfer was rejected at the trial. Oral and other documentary evidence were led at the trial showing that the sale of the building had been concluded before the appellant turned round, after the 4th month that he was no more interested in the sale of the building based on Exhibits 6 and 6a. This was after the respondent had commenced development on the building and developed the house up to the roofing level of the 1st storey.

At the end of trial, the learned trial Judge validated the deed of transfer dated 11/4/91 earlier on rejected in evidence and made his award in favour of the plaintiff/respondent thereby granting the plaintiff/respondent an equitable remedy of specific performance and the injunctive remedy as claimed.

Dissatisfied with this judgment of the trial lower court, the defendant/ appellant (hereinafter referred to as the appellant) appealed to this court on six grounds.

From the six grounds of appeal, the appellant has formulated the following four issues for determination in this appeal, viz:

1. Whether the court can make a declaratory order validating a deed of transfer dated 11th April, 1991 which it had earlier on rejected in evidence and so marked.
2. Whether or not the grant to the plaintiff/respondent by the trial Judge of an equitable remedy or relief of specific performance and the 3rd relief as claimed in his pleading and upon available evidence, is well founded in law.
3. Whether or not the learned trial Judge properly evaluated the evidence at his disposal in this case so much so that he can be adjudged to have reached correct finding or decision in law.
4. Whether the leave granted to the plaintiff to amend his writ of summons and amended statement of claim was proper in law.

Learned counsel to the respondent also formulated three issues for determination in this appeal which for the language and style used boil down to the four issues formulated by the appellant. These are:-

1. Whether despite the rejection of deed of transfer, the trial court can still validate sale of the building agreement between the parties based on oral and other documentary evidence presented before the court. Ground 1.
2. Issue No.2 formulated by the appellant’s counsel in his brief is hereby adopted, Grounds 2 & 3.
3. Whether having regard to the amendment granted the plaintiff amending his writ and statement of claim as at the time the trial court granted the amendment the grant to the respondent of a specific performance is wrong in law. Grounds 4, 5 and 6.

On 10/5/01, when this appeal came before us on the application of the respondent/Applicant’s counsel, leave was granted to the parties to argue both the motion and the appeal together. Consequent upon this learned counsel to both parties argued both the motion and the appeal. I shall be here concerned with the argument in respect of the application for purposes of this ruling.

Learned counsel to the respondent/applicant MR. O. J. Adeseko referred to the motion which was filed on 30/3/01. He said it was brought pursuant to Order 30 rule 20(ii), S.16 of the Court of Appeal Act and Section 6(6)(a) of the 1999 Constitution for the prayers for further amendment of statement of claim contained in the motion paper. He contended that the motion is supported by an affidavit of 4 paragraphs. He relied on all the paragraphs of the affidavit along with the attached Exhibits. Learned counsel to the respondent/applicant submitted that court can grant the amendment. We are not over reaching our case in any way.

What we are saying is that judgment be given as per the evidence before the trial court. We are not calling any evidence nor are we introducing any new issue. Learned counsel relied for this submission on DR M.G.O. IWEKA v. SCOA NIG. LTD. 2000 SCQR Vol. 1 page 431 p.433. Learned counsel finally moved in terms of the motion paper.

By way of reply learned counsel to the appellant/respondent Mr T.O.S. Gbadeyan leading Mrs. Lara Aluko relied on the 7 paragraph counter-affidavit filed herein on 2/4/01. He urged the court to dismiss the application because the amendment is brought male fide and if granted it will entail injustice to the appellant. Learned counsel contended that the amendment is a means at rebuilding a case that has collapsed at the lower court. Learned counsel cited Osinupebi v. Saibu (1982) 7 SC 104 p.111, Laguro v. Toku & Ors (1992) 2 NWLR (Pt.223) 278; Adetutu v. Aderohunmu (1984) 1 SCNLR 515, (1984) 6 SC 92. He finally urged the court to dismiss the motion.

I have considered the submissions of both learned counsel to the parties on this application for further amendment of the statement of claim viz-a-viz the affidavit evidence and the prevailing law. The main issue for determination in this application is whether the amendment can be granted. Learned counsel to the respondent/applicant from his submission supra contended in summary that the application can be granted as they are not overreaching their case and all they are saying is that judgment be given as per the evidence before the trial court. He further contended that they were not calling any evidence nor were they introducing any new issue. By way of reply in summary learned counsel to the appellant/respondent submitted that the application should be dismissed as the amendment would amount, if granted, to a means of rebuilding a case that has collapsed at the lower court. This main issue has come for determination and consideration by the appellate courts in this country in many cases.

However, before examining these judicial authorities, it is pertinent to note the three prayers contained in the motion paper which are:

1. An order for leave of this honourable court to allow the respondent/appellant amend his statement of claim on page 116 of the record by adding the underlined paragraph 14(B) of Exhibit ‘A’.
2. An order deeming the proposed Exhibit ‘A’ as being amended in the record and deeming same as properly filed and served.
3. And for such further order (s) as the honourable court may deem fit to make in the circumstances.

I also copy hereunder paragraph 4 of the Affidavit in support dated 30/3/2001 which the respondent relied upon for this application. It goes thus: –

“4. That I am informed of the following facts in our office, 28 Sulu Gambari Road, Ilorin on the 28/3/2001 at about 12 noon by O.J. Adeseko of counsel and I verily believe:-
(a) That the case has been slated for judgment when an application was made by the appellant to set aside the proceeding of 12th February, 2001.
(b) That consequent upon that the record has to be perused again so as to file the counter affidavit.
(c) That it was after perusing the record that it was discovered that the addition of the underlined words in paragraph 14(b) of Exhibit ‘A’ is necessary for the just determination of the appeal.
(d) That the mistake for not adding underlined words in Exhibit ‘A’ is that of counsel, the proposed amendment is hereby marked as Exhibit ‘A’,
(e) That the appellant shall not be prejudiced if this application is granted.
(f) That it will be in the interest of justice to grant this application.
(g) That this honourable court has the power to order the said amendment as contained in the underlined words in paragraph 14 (b) of exhibit attached”.

The appellant’s objection to this application is predicated on paragraphs 4 – 6 of the counter-affidavit which run thus:-

(4) Further to the preceeding paragraph, the depositions in the supporting affidavit are not true because such an amendment sought will not engender just determination of the appeal rather, it would over reach the interest of the appellant/respondent before the court.
(5) That the proposed amendment is an attempt to further amend paragraph (14B) of the amended statement of claim whereas the initial amendment is a subject of appeal before the Court of Appeal.
(6) That the amendment sought is an attempt to rebuild what we termed a collapsed case in the appellant’s brief and it will engender miscarriage of Justice.

Having dealt with the prayers viz-a-viz the affidavit evidence supra the poser raised here is whether an amendment of statement of claim sought during the hearing of an appeal can be granted? I have considered the submissions of both learned counsel to the parties on this primary issue viz-a-viz the above highlighted affidavit evidence and the prevailing law.
I want to state here that this poser had come for consideration and determination by the apex court in this country in Ijebu Ode Local Government v. Adedeji Balogun & Company Limited (1991) 1 NWLR (pt.166) 136, (1991) 1 SCNJ 1 wherein the Supreme Court held that amendment of statement of claim sought during the hearing of appeal should be granted and same was granted in that case. This decision remains the same till today See also D.M.G.O. Iweka v. SCOA Nig Ltd (2000) 7 NWLR (Pt 664) 325, (2000) SCQR VOL. 1 Page 431 particularly at page 433 cited by learned counsel to the respondent/applicant’s counsel. I need to add that the fact that the mistake leading to this amendment as contained in the affidavit evidence is that of the applicant’s counsel strengthens further the need to grant this application since it is trite that the sin of the counsel should not be visited on the litigant. This is more so when courts are enjoined to allow amendments, as in the instant case, that are required for the purpose of using already available evidence and finding of fact of a trial court.
In the light of the foregoing, I hold that this application for leave to amend etc dated 29/3/01 and filed on 30/3/01 is meritorious and should be granted. Consequently, leave is hereby granted to the respondent/applicant to allow him amend his statement of claim on page 116 of the records by adding the underlined paragraph 14(B) of Exhibit ‘A’. The proposed Exhibit ‘A’ is deemed as being amended in the record. Same is deemed as properly filed and served. N1000.00 costs is awarded in favour of the respondent.

Other Citations: (2001)LCN/1028(CA)