Alhaji Folorunsho Iyanda Kanubi & Anor V. Chief Sunday Olagunju & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA G. MBABA, J.C.A, (Delivering the Leading Judgment)

The learned trial Judge, S. M. Akanbi J. of Kwara State High Court, Offa Judicial Division, had, on 14/12/2010, refused the application by the Defendants (now Appellants), filed on 21/4/2010, seeking for an order of the trial Court to amend the Defendants’ Statement of defence, to incorporate some facts and materials which they (Defendants) claimed to have been inadvertently omitted in the original statement of defence. This appeal is against that Ruling of the learned trial judge.

The main Suit before the lower Court, (Suit No. KWS/OF/14/2010) was initiated by writ of summons, and the claims, as per Statement of Claim, filed by the plaintiff, were:

“(1) A Declaration that the 2nd Defendants purported appointment of the 1st Defendant as the Onikotun of Ijagbo a high Chief and Kingmaker, is contrary to the tradition, native law and custom of Ijagbo and consequently null and void.

(2) A Declaration that it is incompetent for the 2nd Defendant to recognize any person as Onikotun of Ijagbo outside the Claimants’ family of Onikotun Oke in Ijagbo.

(3) A Declaration that the 1st Claimant was validly appointed as Onikotun of Ijagbo, a Kingmaker by the Onikotun Oke family whose duty it is under native law, custom and tradition of Ijagbo, to appoint, since 26th December, 2002.

(4) An Order of perpetual injunction restraining the 1st Defendant from acting purporting to act or parading himself as Onikotun of Ijagbo for whatever purpose and at any gathering whatsoever.

(5) An Order of perpetual injunction restraining the 1st Defendant from dealing with, recognizing or treating the 1st Defendant for whatever purpose and at any gathering whatsoever as Onikotun of Ijagbo, a high Chief and a kingmaker.” (Page 11 of the Record of Appeal).

The Defendants had filed their statement of defence to the claim, but on 21/4/2010, they filed the said motion to amend their pleading. They also prayed for an Order “granting leave to Defendants/Applicants to substitute new witnesses statements on Oath in line with the proposed amendment with the old written statement on oath accompanying the original statement of Defence.”

The grounds for bringing the application were:

(i) The Defendants/Applicants had before now filed a joint statement of Defence.;

(ii) There are relevant and material facts which were inadvertently omitted in the original statement of Defence;

(iii) The Suit cannot be effectively and effectually determined without the relevant and material facts omitted.

(iv) There is the need to substitute new written statement on Oath for the existing ones so as to correct and reflect a proper piece of evidence;