Chief G. U. Edoigiawerie V. Mrs. Atiti Aideyan (2002)

LawGlobal-Hub Lead Judgment Report

AMINA ADAMU AUGIE, J.C.A. 

This is an application for an order granting the respondent/applicant leave to further amend his further amended statement of defence filed and used in the trial High Court. The grounds for the application are as follows:-

(1) The plaintiff/appellant/respondent testified in this case on 15/2/2001. While she was being cross-examined, she said as follows:-

‘..It is not true that my husband PW2 applied for parcels of land using the name of the wives and children to cover up…’

These facts of the evidence elicited under cross-examination were not pleaded in the statement of defence.

(2) On 22/3/2001 the defendant/respondent/applicant gave evidence in his defence and part of what he said in his testimony is as follows:-

… I eventually bought the land. They were many people the day I paid for the land. I was taken to the land by Omosefe Osazee in the presence of the people who were present when I paid for the land … I was told that the land was my property having paid for it …”

The fact of this piece of evidence by the defendant was also not specifically pleaded in the statement of defence.

No application was brought either before judgment was delivered in this case to amend the statement of defence so as to plead these facts.

(3) The purpose of this application therefore is to amend the statement of defence and plead these facts so as to bring the pleading of the applicant in line with the evidence given in court which evidence is in the record of appeal (proceedings in the lower court)

(4) That when these pieces of evidence were given in court they were not objected to by counsel to the plaintiff/appellant/respondent.

The application is supported by an 11-paragraph affidavit deposed to by Samuel Iredia Osifo, legal practitioner, wherein he averred as follows:-

3. That I conducted this case for and on behalf of the defendant/applicant in the lower court.
4. That I was aware during the hearing of this case in the lower court that I elicited certain answers during cross-examination from the plaintiff/respondent the facts of which were not specifically pleaded.
5. That I also knew as a fact that a piece of evidence given by the applicant in his evidence-in-chief about what happened when he bought the land in dispute in this case from the original owner of the land was not specifically pleaded.
6. That the pieces of evidence formed part of the record of proceedings in the lower court, as they were not objected to by counsel to the plaintiff/appellant/respondent.
7. That after the close of evidence in the lower court I forgot to apply to amend the statement of defence of the applicant so as to plead the facts of the pieces of evidence by the plaintiff and the defendant.
8. That the purpose of this application therefore is to amend the said statement of defence of the defendant and plead the facts of the evidence given in the court below.
9. That the amendment sought to be made is set out and underlined in the 1st further amended statement of defence attached herewith and marked as exhibit’ A’.
10. That in the interest of justice this application should be granted.

In opposing the application, the respondent filed an 8-paragraph counter-affidavit, wherein Osakpanwan Ogieriakhi, legal practitioner, deposed thus:-

3. Appellant/respondent’s case at all times is that the land in dispute belongs to her under Benin customary law being the beneficiary of an Oba’s approval in her name in respect of the said land.
4. I am informed by K. O. Longe, Esq., and I verily believe that this issue was exhaustively argued and canvassed on both sides before the lower court.
5. That the amendment the applicant seeks to make touches one of the issues canvassed by the appellant in this appeal.
6. I verily believe that the application is overreaching and not made in good faith.
7. I verily believe that the grant of this application will be prejudicial to the appellant/respondent.
8. I swear to this affidavit bona fide – believing the contents to be true…

Due to the contentious nature of this application, briefs of arguments were ordered, filed and exchanged by the parties, and in the applicant’s brief prepared by S. Iredia Osifo, Esq., it was submitted that the sole issue in this application, is whether this court can grant the application and allow the applicant to further amend his statement of defence so as to bring his pleadings in line with the evidence already given in the lower court. Citing Section 16 of the Court of Appeal Act 1976, Order 1 rule 19(1) & Order 3 rule 3(1) of the Court of Appeal Rules, and Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214, it was submitted that the jurisdiction of this court to grant the prayers sought in this application are undoubted; that the amendment sought is to bring the statement of defence in line with the evidence in court, which though not specifically pleaded was not objected to by counsel for the respondent, quoting the observation of Madarikan JSC, in Ojah Ojah & Ors. v. Eyo Ogboni & Ors. (1976) 1All NLR (Pt.1) 346 at 355-356; and that the evidence already led in this case by the defendant is important for the determination of this appeal just as it was for the determination of the suit in the court below, citing Oguntimehin v. Gubere (1964) 1 All NLR 176 at 180, where the Supreme Court held as follows:-