Sunday Ologun V. Johnson Fatayo (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO, KEKERE-EKUN, J.C.A, (Delivering the Leading Judgment)

By his statement of claim dated 28/11/97 filed before the High Court of Ondo State, Akure Judicial Division, the respondent herein, as plaintiff, sought the following reliefs against the appellant as defendant:

1. “For the recovery of the sum of N500,000.00 as general damages for trespass committed and it is still being committed on the plaintiffs piece or parcel of land situate and being along Agunla Street, Iju, Ondo State and which is particularly described and verged RED on Survey Plan No. AB/OD/92/808.
2. Perpetual injunction restraining the defendant, his servants and or agents from committing further acts of trespass on the said piece or parcel of land.”

The parties duly filed and exchanged pleadings. The respondent testified on his own behalf and called one other witness. He tendered exhibits and closed his case on 27/5/03. The case was then adjourned for defence. The court could not sit on the adjourned date (2/7/03) on account of a nationwide industrial action, Thereafter the suit was adjourned several times at the instance of the appellant. By a motion on notice dated 4/11/03 and filed on 5/11/03, the appellant sought leave to amend the statement of defence as shown in the schedule of amendment attached to the supporting affidavit. The averments in the supporting affidavit deposed to by one OLADIMEJI TAIWO are reproduced hereunder:

“1. That I am the Litigation officer in the chambers of the defendant’s/applicant’s counsel.

2. That by virtue of my duties I am conversant with the facts of this case.
3. That I have the consent and authority of the defendant/applicant to depose to this affidavit.
4. That the Statement of Defence was originally filed by the defendant’s former Solicitors, A.A, Akintunde & Co.
5. That the plaintiff has just made available to our chambers some new material facts which were not in the statement of defence.
6. That I was informed by Tope Adedipe of counsel, and I verily believe him that in view of the new material facts, it is necessary to amend the statement of defence and that leave of this Honourable Court is required.
7. That the proposed amended statement of defence is herewith attached as Exhibit A.
8. That the amendment will enable the court to determine the real questions in issue between the parties once and for all.
9. That the plaintiff will not in any way be prejudiced by this application.
10. That it is in the interest of justice to grant this application.
11. That I depose to this affidavit in good faith, in accordance with the Oaths Act.”

The respondent filed a counter affidavit wherein he averred inter alia that Wale Omotosho Esq., had been appearing as counsel for the appellant as far back as 30/10/2001; that some paragraphs of the proposed amendment seek to deny averments already admitted and also that paragraph 3 of the proposed amendment sets up a new issue.

The learned trial Judge listened to the submissions of the respective counsel and in a considered ruling delivered on 24/3/04 dismissed the application. Being dissatisfied with the decision, the appellant filed a notice of appeal dated 2/4/04 containing two grounds of appeal.

In compliance with the Court of Appeal Rules, the parties filed and exchanged their respective briefs of argument. At the hearing of the appeal on 17/5/2012, F. OMOTOSHO ESQ.,leading MISS O. EDREMODA adopted and relied on the appellant’s brief dated 7/6/05 and filed on 8/6/05. It was deemed properly filed and served on 8/6/05. He urged the court to allow the appeal.

We were satisfied from the court’s record that the respondent was duly served with hearing notice through his counsel on 23/2/2012. Having regard to the brief of argument dated and filed on 23/11/05 settled on his behalf by CHIEF A.O. FESOBI, he is deemed to have argued the appeal pursuant to Order 18 Rule 9(4) of the Court of Appeal Rules 2011.

The appellant formulated a single issue for determination from the two grounds of appeal as follows:

“Whether the learned trial Judge was right in refusing the appellant’s application for leave to amend his statement of defence after the respondent had closed his case but before the appellant had opened his own defence.”

The respondent distilled two issues from the grounds of appeal thus:

1. Whether the proposed amendment will introduce new material issues prejudicial to the case already presented before the court.
2. Whether failure of the appellant to disclose when the alleged new facts were discovered is fatal to the merit of the application to amend the statement of defence.

I shall determine the appeal on the single issue formulated by the appellant.

In support of the appeal, learned counsel for the appellant submitted that the grant of an application of this nature is discretionary and the court has a duty to give the matter a holistic consideration in its bid to do justice. He referred to the following finding of the learned trial Judge at page 32 of the record:

“A careful perusal of the statement of defence shows that the defendant admitted paragraphs 4 and 16 of the statement of claim. Paragraph 2 of the proposed amended statement of defence now denies paragraphs 4 and 16 of the statement of claim. Already the plaintiff has closed his case. If the application is allowed, there is no way the plaintiff can prosecute the case without suffering some injustice. ”