Mrs. C. I. Adetutu & Ors. V. Mrs. W.o. Aderohunmu & Ors (1984)

LawGlobal-Hub Lead Judgment Report

BELLO, J.S.C.

The appellant was the defendant in the High Court of Lagos State holden at Ikeja wherein judgment was entered for the plaintiffs, now respondents, against the defendant for the sum of N500 being general damages for trespass committed by the defendant on the parcel of land situate and being at Onipetesi Agege in the Ikeja district known as plots Nos. 29 and 30 in Block B in plaintiffs’ approved layout No. TPAO 352 and an injunction restraining the defendant by herself, her servant or agents or otherwise howsoever from remaining on or continuing in occupation of the said parcel of land, hereinafter referred to as the land in dispute.

Not satisfied with that decision, the defendant appealed to the Court of Appeal which dismissed her appeal and affirmed the judgment of the High Court. The defendant has further appealed to this Court.

From the pleadings of the parties when the case went on trial in the High Court, it was not in dispute that the plaintiffs had inherited the land in dispute which forms part of a large parcel of land from their deceased uncle, Ebenezer Adeniran Sule, in 1950; that the plaintiffs caused the said large parcel of land to be laid out into plots which layout was approved by the Ikeja Town Planning Authority as No. TPAO 352 and that the defendant had been the tenant of the plaintiffs in respect of plots 4 and 5 in Block C of the said layouts which two plots were subsequently acquired by the Federal Government for road construction.

It appears the acquisition of plots 4 and 5 precipitated the dispute. The plaintiffs averred in paras. 8, 9, 10 and 11 of the statement of 5 claim as follows:

“8. The plaintiff (sic) will aver that the defendant on learning of the said acquisition wrongfully and unilaterally jumped unto the land now in dispute in the purported exchange for the land falling within acquisition as stated above.

9. The plaintiff (sic) plead further that in spite of protests, the defendant on or about the 25th day of October, 1975 wrongfully entered the land in dispute and proceeded to erect a wall fence thereon and notwithstanding repeated requests by the plaintiffs and by the plaintiffs’ solicitor to vacate and deliver up possession the defendant has wrongfully failed or refused to do so.
10. The plaintiffs will rely at the trial on various letters of warning sent by their solicitor, Mr. Smart Omodunbi to the defendant and in particular the letters dated the 23rd day of October 1975 and 22nd January 1976.
11. The plaintiffs will contend at the trial that the defendant has no title or interest whatever in the land in dispute and that notwithstanding warnings she has recklessly continued and persisted in her acts of trespass.”

The gist of the defence on which the parties joined issue at the commencement of the trial was that the defendant had become a tenant of the plaintiffs in respect of the land in dispute in her capacity as the executrix of her late husband, Mubinu Akinola Falola, who had acquired a lease for 99 years over the land in dispute. Paragraphs 5,6, 7, 8 and 9 of the defence are germane to the issue:

“5. The defendant categorically denies paragraphs 8, 9, 10 and 11 of the statement of claim and puts the plaintiffs to the strictest proof thereof.

6. The defendant avers that on the 6th day of July, 1973, by the proof of probate of the last will and testament of MUBINU AKINOLA FALOLA, late of 17/1 Federal Road, Railway Compound, Ebute-Metta (deceased), who died on the 2nd day of December, 1972 at the University Teaching Hospital; the administration of all the estate which by law devolves to and vest (sic) in the personal representatives of the said deceased was granted to SERIOLA TAIWO and CHRISTIANA IYABO ALLEN of 25, Oroku Road, Ebute-Metta (otherwise known) as Mrs. C. I. Adetutu and the defendant herein as the EXECUTRICES.
7. The said probate is annexed hereunder and marked ANNEXURE A
8. The defendant further avers that the said plots 29 and 30 in Block B referred to in paragraph 3 of the statement of claim, were leased out to the late Mubinu Akinola Faiola in 1965 and (sic) tenant thereof for a term of 99 years as witness by a memorandum reference NO.AOA/9/66 and dated 4th day of February 1965 from J. A. Sule to M. A. Faiola annexed hereunder and marked ANNEXURE A1.
9. And the said Mr. Mubinu Akinola Faiola (deceased) duly paid his requisite annual rents in respect thereto for the years 1965, 1966, 1967, 1968, 1969, 1970, 1971, 1972, 1973 and 1974 respectively as shown by the plaintiffs’ family estate receipts No. 32/71 dated 29/9/71 and No.42/73 and dated 19/11/73 annexed hereunder or and marked ANNEXURE B & C.”

It was further averred that after the defendant had taken possession of the land in dispute she purchased the freehold reversion over the land in dispute from the 1st plaintiff and paid N3,000 to the latter but the amount was subsequently refunded to her by the 1st plaintiff.

In the course of the hearing in the trial court after the plaintiffs had led evidence and closed their case and the defendant had completed her evidence in-chief and was being cross-examined, the defendant applied for an order under Order 25 rule 1 of the High Court of Lagos State Civil Procedure Rules to amend the statement of defence. The proposed amended statement of defence consisted of 46 paragraphs of which paragraphs 16, 17, 18, 19, 20, 30 and 31 are pertinent to the 40 issue canvassed at the hearing of the appeal before us. The paragraphs read:

16. The defendant avers that she is the owner in possession of Plots 29B and 30B in Block B on Layout No. TPAO 352 under and by virtue of gift intervivos to her by the lessee of the said plots. (Sic) Late M. A. Faiola by his 45 memo dated the 16th day of June 1972 annexed hereunder and marked ANNEXURES E.
17. That by similar memoranda he donated much of his property to persons and organisations during his life time.

18.The defendant avers that she is defending this action in her own right as the owner of the said plots 29B and 30B.

19. The defendant denies that she is a trespasser as alleged in the statement of claim and states that she is a bonafide owner of the said plots 29B and 30B by virtue of the hereinbefore mentioned gift.
20. The defendant states that the late Mr. M. A. Faiola gave out some of his property in his life time, the property now in dispute was given out in like manner.
21. The defendant states that the plaintiffs are estopped from repudiating any transaction, acts or omission on the said land by their agent Mr. J. A. Sule.
22. The defendant states that the plaintiffs by their conduct lapse of time and or inactivity are estopped from denying the right and title of the defendant to the said plots 29B and 30B.”

10 In refusing to grant the amendment, Beckley, J. observed as follows:

“I wish to observe that this application has been brought to court after the plaintiffs had led evidence and closed their case. Secondly a perusal of the proposed amended statement of defence shows introduction of new matters which to my mind will put the plaintiffs case completely out of gear, if allowed.

The general rule is that the court will always allow amendment to enable matters in controversy between the parties to be completely adjudicated upon, and the issues between them settled once and for all. This rule however, is subject to consideration of the facts of each particular case. Amendment which will act prejudicially to the other side should not be granted, especially where a court is of the view that the other side cannot be compensated for the award of costs. I have also taken into consideration, from the affidavits sworn to in this matter, as well as from the evidence already led, that the facts upon which the proposed amendments are now being based were known to the defendant a long time ago. Amendment to change the nature of the case before the court will generally not be granted.