Chief Emmanuel Eyo Eta Vs Elder Chief Okon H. A. Dazie (2013)
LAWGLOBAL HUB Lead Judgment Report
HON. JUSTICE NWALI SYLVESTER NGWUTA, JS
This is an appeal against the judgment of the Court of Appeal, Calabar, delivered on 23 November, 1999. In the said judgment, the Court below dismissed the appellants appeal against the judgment of the High Court of Cross River State sitting at Calabar in which the trial Court dismissed the suit filed by the appellants as plaintiffs. In the High Court, the appellants then plaintiffs had claimed against the respondent (then defendant) as follows: ‘(1) A declaration that the pretended Will of the deceased is invalid. (2) An order setting aside the pretended will of the deceased for want of due execution and form and as being inconsistent and unconscionable and failing totally of its purpose and intention. (3) An injunction restraining the defendant from executing the said pretended Will.’ At the trial in the High Court each side called three witnesses and rested its case. The main addresses of learned Counsel for the parties were concluded on 29th October, 1997. On the application of learned Counsel for the defendant (now respondent), the case was adjourned to the next day 30/10/97 for rejoinder (see page 68 of the record.) PAGE| 2 In his rejoinder on points of law on 30/10/97, learned Counsel for the defendant (now respondent) realized that he did not expressly deny paragraph 23 of the statement of claim nor did he plead due execution of the Will In his Statement of Defence. Learned Counsel for the respondent then made an oral application to amend the Statement of Defence in line with the evidence on record by adding that ‘the Will was duly executed in accordance with the law’ to paragraph 33 of the Statement of Defence. Learned Counsel for the appellant opposed the oral application, arguing that there should be a formal application to enable the appellants react. He said that the application at the stage it was made would bring untold hardship to the appellants. The learned trial Judge did not rule on the application but rather adjourned the case with the consent of both Counsel to 8 December, 1997 for judgment. (See page 70 of the record.) In the judgment eventually delivered on the 28th day of January 1998, the learned trial Judge, after exhaustive review of the case, concluded thus: ‘Consequently, it is my considered opinion that the action be and is hereby dismissed for want of merit.’ Earlier in the judgment, the learned trial Judge had granted the application for amendment thus: ‘I do not think that the application ought to have been formal as proposed by learned Counsel for the plaintiffs. The facts are already before the Court. I am however of the opinion that the defendant be made to pay the cost of the application which is hereby granted as prayed with N2,000.00 costs to the plaintiffs.’ (See pages 98-99 of the record.) Aggrieved by the judgment, the plaintiffs (now appellants) challenged same at the Court of Appeal, Calabar Division. The lower Court found no merit in the appeal and accordingly dismissed it. The appellants further appealed to this Court on six grounds. In accordance with the rules and practice of the Court the parties through their Counsel, filed and exchanged briefs of argument. In his brief, as amended, learned Counsel for the appellants abandoned ground one in his Notice of Appeal (which is hereby struck out) and formulated five issues from his remaining five grounds of appeal. The five issues are: ‘1. Was the Court of Appeal right when it held that the evidence of the three witnesses called by the respondent was pleaded? 2. Is it the practice and in fact the Law that a party can bring an application to amend its pleadings in order to bring such pleadings in line with evidence already adduced by it but which was based (sic) upon un-pleaded facts? 3. Was the amendment sought by the respondent of such simple error or mistake that an application on notice was not necessary? 4. Was it right for the Court of Appeal to reverse a finding of fact by the trial Court which was not appealed against by the respondent 5. What is the standard of proof required from the appellants in view of fact that the respondent did not (sic) led evidence in support of his pleadings?’ In his brief of argument, learned Counsel for the respondent formulated the following three issues for determination by the Court: ‘1. Whether an oral application for amendment of pleadings irrespective of the nature and scope of such amendment is contemplated by the High Court (Civil Procedure) Rules 1988 and if it is, whether respondents pleadings as amended covered the evidence of respondents witnesses regarding due execution of the Will? 2. Whether the complaint that the Court of Appeal reversed portions of the decisions of the trial Court not appealed against is justified having regards to the totality and purport of the decision of the said trial Court. 3. Whether having regard to the evidence adduced by Appellant and respondent the Court of trial was justified in dismissing their claims in their entirety and the Court of Appeal correct in affirming the decision.’ I am constrained to comment on the briefs filed by learned Counsel for the parties. I will start with the respondents brief. An appeal is a resort to a superior Court to review the decision of an inferior Court and find out whether on the facts placed before it, and applying the relevant and applicable law the inferior Court came to a right or wrong decision. See Ponnamma v. Arumagun (1905) AC 390 applied by Oputa, JSC in AG of Oyo State & Anor v. Fairlakes Hotel Ltd SC.169/1986 delivered on 2nd December, 1988.) PAGE| 3 The traditional role of learned Counsel for the respondent, in contradistinction to that of learned Counsel for the appellant, is to support the judgment appealed against. Where, however, learned Counsel for the respondent cannot, in good conscience, support the judgment appealed against, he should make his position known to his client with a view to either conceding the issues raised by the appellant or withdrawing from the appeal if his client persists in his pursuit of same. Learned Counsel cannot indulge in ambivalence. In his brief of argument, learned Counsel for the respondent dwelt on a critique of the judgment of the trial Court and presented a thesis on the High Court (Civil Procedure) Rules of Cross River State to demonstrate that the Court of Appeal, in the judgment appealed against, misapplied the rules, an issue not raised by the appellant, and the respondent did not file a respondents notice. Moreover, of the three issues formulated by the respondent only the second issue can be traced to the appellants grounds of appeal. Issues one and three, particularly issue one, appear to have come from the blues. Any issue not distilled from the ground or grounds of appeal and argument thereon go to no issue in the appeal and are liable to be struck out. (See Ogunupebi v. Senilon (1982) 7 SC 164; Ali v. CBN (1997) 4NLCR(Pt. 498) 152). Issues 1 and 3 in the respondents brief are hereby struck out as irrelevant in the determination of the appeal. Learned Counsel for the appellant formulated five issues from his five grounds of appeal. This, by itself, has no adverse effect on the appeal though it is not a commendable practice. Issues are not formulated to coincide with the number of grounds of appeal. An issue is preferably framed from a combination of grounds of appeal. (See Nwudenyi & ors v. Aleke (1996) 4 NWLR (Pt. 442) 349; Labiyi v. Anretidea (1992) 10 SCNJ 1 at 2.) Shorn of its extravagant build up and reduced to its true dimensions, the main issue in the appeal is the propriety vel non of the order for amendment at the time it was sought and granted. There is also the alleged reversal of a finding by the trial Court against which there was no appeal. I will determine the appeal on the following two issues: (1) Was it right for the Court below to affirm the decision of the trial Court granting the oral application to amend the Statement of Defence in line with the evidence led? (2) Was it right for the Court of Appeal to reverse a finding of fact by the trial Court which was not appealed against by the respondent? All the other issues in the appellants brief are peripheral in the resolution of the two issues above. I will deal with the second issue first. Issue 2 (appellants issue 4): ‘Was it right for the Court of Appeal to reverse a finding of fact by the trial Court which was not appealed against by the Respondent?’ In his argument on the issue, learned Counsel for the appellant reproduced page 97 of the record of the trial Court: ‘It is trite law that it is the duty of the propounder of a Will to prove the validity of the Will. To do this he must plead the relevant facts. Equally related to the issue of burden of prove (sic) in probate matters is the trite law that he who alleges the positive must prove. It is therefore the considered opinion of this Court that the duty placed on the plaintiffs is to allege that the Will was not duly executed as required by law which they have discharged. Going through the pleading in this case, it is clear and this Court hereby finds and holds that the defendant failed to plead due execution of the Will despite the directive attach (sic) at it in paragraph 23 of the Statement of Claim…” On the face of it and read in isolation of the rest of the judgment of the trial Court, it does appear to be a finding of fact settling the question of whether or not the respondent, as the propounder of the Will, discharged the burden placed on him to plead and prove the due execution of the Will. The said finding was obliterated, or displaced or overtaken as it were, when the trial Court granted the respondents oral application to amend the Statement of Claim to bring the pleading in line with the evidence on record. The trial Court, on the oral application, held: ‘The facts are already before this Court. I am however of the opinion that the defendant be made to pay the cost of the application which is hereby granted as prayed with N2,000.00 costs to the plaintiffs…… I do not agree that there are any material contradictions in the evidence of DW1-3 as to due execution of Exhibit B. I believe their evidence and therefore find and hold that Exhibit B was duly executed as required by law.’ (See page 99 of the record). The Court below in its judgment, affirmed the finding on the due execution of the Will. It held at page 543 of the record: ‘There is no way that this finding can be faulted as there is overwhelming evidence to establish that the respondent has discharged its duty to prove that Exhibit B was made by a free and capable testator that it represents his intention and instructions and that it was duly executed in accordance with the law.’ In his argument that the lower Court reversed the finding of fact of the trial Court not appealed against, learned Counsel for the appellant did not appreciate that the finding of fact affirmed by the lower Court is the one made by the trial Court after it granted the oral application to amend the defendants pleading and not the one made before the amended pleadings. It is therefore not correct to say that the lower Court over-ruled the trial Courts finding of fact not appealed against. The operative finding of fact as to the due execution of the Will is the finding made after the oral application for amendment had been granted. The issue is resolved against the appellant. Issue 1 questions the propriety of the oral application to amend the Statement of Defence granted by the trial Court and endorsed by the Court below. In their Statement of Claim the appellants as plaintiffs, impugned the due execution of the Will. In paragraph 23 of the Statement of Claim, it was pleaded thus: ’23. The purported witnesses to the Will did not all sign in the presence of each other and the testator as required by law.’ PAGE| 4 In addition to the general traverse, the respondent, as the propounder of the Will, has a duty to plead and prove due execution of same. Respondent failed to discharge the burden in the pleadings. Be that as it may, the evidence of DW1-3 which the trial Court believed, showed that the Will was duly executed even though the evidence; as rightly argued by learned Counsel for the appellants, went to facts not pleaded at the time it was adduced. Tardy as he was, learned Counsel for the respondent woke up from slumber after learned Counsel for the appellants had addressed the trial Court, urging the Court to expunge the evidence of DW1-3 as going to no issue in the case. The record, at page 68, shows that learned Counsel for the plaintiffs (now appellants) concluded his address on 29/10/07 and the matter was adjourned to the next day 30/10/97 for rejoinder. It was at the stage of rejoinder that learned Counsel for the respondent orally applied to amend his Statement of Defence to bring the pleading in line with the evidence by adding: ‘The will was duly executed in accordance with the law’ to paragraph 33 of the Statement of Defence. The application was opposed. The trial Court did not rule one way or the other. The ruling was incorporated in the judgment. In fact, the judgment dismissing the case was predicated on the amendment granted to the respondents. I think that the ruling on the application to amend the Statement of Defence should have been made before the judgment. Also the amendment should have been reflected in the Statement of Defence. However, in my view, these are mere irregularities which do not affect the substance or validity of the order made or the proceedings in the matter. As strenuously argued by learned Counsel for the appellant, evidence led on facts not pleaded go to no issue and is liable to be expunged. Issues are joined on the pleadings, not on the evidence. See Bamgboye v. University of Ilorin (1999) 6 SCNJ 295 at 324. Failure to call evidence in support of averment denied means that the averment is abandoned. See Yusuf v. Oyetunde (1998) 10 SCNJ 1 at 18-19. Conversely, evidence led on unpleaded facts go to no issue in the case. See Ndoma-Egba v. Chukwuogor (2004) e KLR p.173 at 671. This was the position when the learned trial Judge started reading the judgment of the Court. The evidence of the DW1-3 relating to the due execution of the Will went to no issue in the matter as the due execution of the Will was not pleaded in the Statement of Defence. At this point the non-execution of the Will in accordance with the law was deemed admitted by the respondent who chose not to plead to the contrary. However, the scenario changed the moment the trial Court granted the oral application to amend the pleading by pleading due execution of the Will, though much later in the judgment, the amendment made in line with the evidence on record spoke from the date of the original Statement of Defence and the original Statement of Defence was discarded as it were. See Rotimi v. Macgregor (1974) 11 SC 133 at 152; Sneade v. Watherton (1904) 1 KB 295 at 297; Adewunmi v. AG Ekiti State (2002) 93 LRCN 43 at 64 & 65. Once the amendment was granted to bring the pleading in line with the evidence on record, the amended Statement of Defence superseded the writ or claim. See Ewarami v. ACB Ltd (1978) 4 SC 99 at 107. On the propriety vel non of the amendment granted at the time it was sought, the law is that no kind of error or mistake, which if not fraudulent or intended to overreach the Court cannot correct if it can be done without injustice to the other party. See Amadi v. Thomas Aplin & Co. Ltd (1972) 1 All NLR (Pt. 1) 409; Shell BP Petroleum Development Company v. Johnmal Eng. Ltd (1974) 4 SC 33. Amendment will be allowed if by so doing the real issue in dispute can be raised and resolved. See Engr. Samuel Melifeonwu v. Egbunike (2001) 1 NWLR (Pt. 4) 271. The grant of the application did not cause an undue delay in the proceedings nor is the amendment irrelevant or useless. There is no evidence that it was intended to overreach or ambush the appellant. The learned Counsel for the appellant cross-examined the witnesses who gave the evidence in line of which the respondent sought to amend the Statement of Defence. It is not enough to say that the application was brought in bad faith. I see no fact or facts which show bad faith or from which the inference of bad faith can be drawn. Though the amendment came extremely late at the trial, it did not introduce a new case. It was meant to, and did, bring into focus the main issue in contention between the parties – that is, whether or not the Will was duly executed in accordance with the law. And the appellant was compensated by order for costs. In Okafor v. Ikeanyi (1979) 3-4 SC 99 the Court held that amendment can be granted at any stage if it is in the interest of justice. In my considered view, the order for amendment was justified on the facts of the case at the time it was granted. An application for amendment calls for exercise of the Courts discretion and it has not been shown that the exercise was not judicial and judicious. (See Shell PB v. Jonmal (supra)). In my view, the appeal is devoid of merit and consequently it is hereby dismissed. Appellant to pay N100,000.00 costs to the respondent. MAHMUD MOHAMMED, JSC: This appeal is against the judgment of the Court of Appeal Calabar delivered on 23rd November, 1999. In that judgment, the Court of Appeal dismissed the Appellants appeal against the judgment of the trial High Court of Justice of Cross-River State dismissing the Plaintiffs/Appellants action challenging the validity of their fathers Will dated 24th March, 1992. Although at the hearing of this appeal on 11 December, 2012 the Appellants brief of argument upon which the appeal was heard had raised as many as 5 issues for the determination of the appeal, while in the Respondents brief of argument 3 issues were identified, all the issues formulated by the parties revolved around a central issue on the complaint of the Appellant on the validity of the amendment to the Defendant/Respondents statement of Defence by the trial Court on an oral application after the parties had closed their respective cases. The oral application for amendment was made pursuant to the provision of Order 23 Rule 1 of the High Court (Civil Procedure Rules) of Cross-Rivers State 1987. The guiding principles of cardinal importance which guides the Court in an application for leave to amend the Writ of Summons or pleadings is that such amendment is made for the purpose of enabling the Court to determine the real question in controversy between the parties or correcting any defect or error in the proceedings. See Amadi v. Thomas Applin & Co. Ltd. (1972) 1 All N.L.R. 409 and Alhaji Karim Laguro & Ors. v. Honsu Toku (Bale of Itoga) & Ors. (1992) 2 N.W.L.R. (Pt. 223) 278 at 287 and 290 – 291. Some of the guiding principles for granting amendments of pleadings include, the consideration of the Justice of the case and the rights of the parties before the Court, the duty of a Judge to see that everything is done to facilitate the hearing of any action pending before him and whenever it is possible to cure and correct an honest or unintentional blunder or mistake in the circumstances of the case and where such amendment will help to expedite the hearing of the action without injustice to the other party. Furthermore, amendments are more easily granted whenever the grant does not necessitate the calling of additional evidence or the changing of the character of the case, and in that aspect no prejudice or injustice can be said to result from such amendment. See Writ v. Wuche (1980) 1-2 S.C. 12; Afolabi v. Adekunle (1983) 2 S.C.N.LO.R 141; Akinkuowo v. Fafimoju (1965) N.M.L.R. 349; Oguntimeyin v. Gubere (1964) N.M.L.R. 55; Dominion Flour Mills Ltd v. George (1960) L.L.R 53; Adetutu v. Aderohunmu (1984) 1 S.C.N.L.R. 515; Amadi v. Thomas Applin & Co. Ltd (1972) 1 All N.L.R. (Pt. 1) 409; Adekeye v. Akin-olugbade (1987) 3 N.W.L.R. (Pt. 60) 214; Akoh v. Abuh (1988) 3 N.W.L.R. (Pt. 85) 696; England v. Palmer 14 W.A.C.A. 659; Metal Construction (W.A.) Ltd v. Migliore (1979) 6-9 S.C. 163. In the present case the Defendant now Respondent in this Court merely applied at the trial Court to amend paragraph 33 of his statement of defence by adding the sentence- ‘The Will was duly executed in accordance with the law.’ At this stage the application was made, the record shows there was enough evidence already led the Defendant/Respondents witnesses DW1 – DW3 who were also cross-examined by the Appellants Counsel as shown in the record in support of the fact that the Will of the deceased was properly executed and that the deceased had the required capacity to execute the same. It is quite clear therefore that the application to amend that paragraph of the statement of defence was made in order to bring the evidence that was already on the ground in line with the pleadings without calling additional evidence and without over-reaching the other parties being the Plaintiffs now Appellants. The amendment therefore, in my view, was merely made to cure an honest or unintentional blunder or mistake by the learned Counsel to the Defendant/Respondent and hence was rightly granted by the learned trial Judge and rightly affirmed by the Court below. For the above and fuller reasons in the leading judgment of my learned brother Ngwuta JSC which has just been delivered, I also dismiss this appeal and abide by the orders in the leading judgment including the order on costs.