H.I. Iyamabor V. Mr. Mavis Omoruyi (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivered the Leading Judgment)

This is an appeal against the ruling of the High court of Edo State (hereinafter called the lower court) Holden in Benin city, delivered by E.F. Ikponmwen J., on the 14th day of April, 2008.

At the lower court, the Respondent herein is the plaintiff, while the Appellant is the defendant. Sometime in March, 2006, the Respondent claimed against the Appellant as per his writ of Summons and statement of Claim as follows:

1. A declaration that the plaintiff is the rightful/bonafide owner and the person legally entitled to apply and be granted a Statutory Right of Occupancy in respect of all piece/parcel of land measuring 107.32 feet by 200 feet situate at Ward 36A Ugbor Village Benin City bounded by Ward beacons Nos. 1212A, 1213A,1214A and 1215A covered by an application dated 10th January, 1972 for the said plot/land by one E.A. Igbinoba.
2. A Declaration that the act of the Defendant in entering/interfering with any form of building and erecting or selling or transfer of the whole or part of the aforesaid land of the Plaintiff by him, his servants, agents, his representatives or his assigns or privies as described in relief one (1) above therein without the plaintiffs consent or authority is trespassory; unlawful and thus actionable.
3. A declaration that the act of the Defendant, his agents, servants, privies and/or associates of uttering, destructing damaging and removing the survey and ward beacons, demarcations and marks of the aforesaid land of the plaintiff is malicious, vexatious and actionable.
4. A declaration that the act of the Defendant, his agents, servants, privies and/or associates destroying, uprooting, removing economic crops belonging to the plaintiff in the aforesaid parcel or piece of land is malicious, vexatious and actionable.
5. An order of court commanding the Defendant, his servants, his agents and/or privies to give up possession to the plaintiff of the parcel/piece of land measuring 107.32 feet by 200 feet described in relief (one) above which parcel or piece of land belongs to the plaintiff.
6. The Defendant or his agent or any person(s) who on his behalf removed and used the Plaintiffs 2000 cement blocks is illegal and criminal.
7. A perpetual injunction restraining the Defendant, his agents, his servants, his associates, privies and/or any other person from further act of trespass on the aforesaid land of the plaintiff.

The sum of N5,000,000.00 (Five Million Naira) only being damages.

Pleadings were exchanged by the parties. However, by his motion on notice dated and filed on 10th April, 2007, the Respondent was granted leave by the lower court to take his surveyor to the property in dispute to carry our litigation survey thereon, see pages 15 to 18 of the record of appeal. After that exercise the Respondent yet approached the lower court vide his motion on notice dated and filed on the 22nd November, 2007 for leave to amend his existing Writ of Summons and Statement of Claim.

In the said motion, the Respondent prayed for the following orders viz:

(a) An order granting leave to the Plaintiff/Applicant to amend his Statement of Claim in the manner underlined in red in the proposed amended Statement of Claim attached and marked Exhibit B and to rely on the litigation survey plan attached to the Amended Statement of Claim and marked Exhibit C.

(b) An order granting leave to the Plaintiff/Applicant to amend the Writ of Summons in the manner underlined in red in the proposed Amended Writ of Summons attached and marked Exhibit A.

(c) An order deeming the said proposed Amended Statement of Claim together with the Litigation Survey plan and amended Writ of Summons as properly filed and served, the appropriate filing fees having been paid.

(d) AND for such further order or other orders as this court may deem fit to make in the circumstance.

The said application was opposed by the Appellant, see pages 19 to 28 and 31 to 44 of the record of appeal.

After hearing the arguments of learned counsel for parties for and against the application, the lower court in its said ruling granted the said application and held inter alia as follows:

I have examined thoroughly the application before this Court and the counter affidavit thereto. The whole counter affidavit seeks to discredit the claim of the Plaintiff/Applicant and I think am of the view that at this stage, it is rather premature. The Court can not stop a claimant from making whatever claims he seeks so long it is not an abuse of Courts process and he has the requisite locus standi. Pleadings and writ of summons can be amended at any stage before judgment is delivered in order to resolve the issue in controversy between the parties.

The purpose of amendment is to eliminate error and defect in the proceedings and to resolve the issue in controversy. The plaintiffs claim that there were some errors arising from the litigation survey carried out and the defendant’s position that these are no errors can be shown by evidence. I do not agree that the plaintiff should be stopped from carrying out the amendment sought since evidence is yet to be led. In the circumstance the objection taken is refused and it is dismissed. The amendment sought is granted.