(2018) LPELR-44671(CA)

Transcription

1 OBISIKE & ANOR v. HANOTU & ORS CITATION: In the Court of Appeal In the Port Harcourt Judicial Division Holden at Port Harcourt ON FRIDAY, 18TH MAY, 2018 Suit No: CA/PH/311/2015 ALI ABUBAKAR BABANDI GUMEL ISAIAH OLUFEMI AKEJU CORDELIA IFEOMA JOMBO-OFO Before Their Lordships: Between 1. ELDER CLEMENT OBISIKE 2. MR. JOHNBULL OBISIKE (For themselves and as representing the Rumuoluwada Community Rukpokwu, Obalga, Rivers State) 1. MR. CHIMA HANOTU 2. ELDER JACKSON HANOTU 1st Set of Respondent AND And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) 1. ELDER KINGSLEY EYINDA 2. ELDER LAWSON WANYANWU 3. ELDER DANIEL AMADI 4. ELDER IBEKWE AARON 5. CHIEF PRIEST FELIX WANYAWU 6. MR. FELIX HANOTU 7. MR. INNOCENT WOKEH 8. AZUNDAH AARON 9. MR. THANKGOD NLERUM (For themselves and as representing Mgbuchi Community Rukpokwu Town Obio/Akpor LGA) - Respondent(s)

2 RATIO DECIDENDI 1. PRACTICE AND PROCEDURE - AMENDMENT OF COURT PROCESSES/PLEADINGS: Principles guiding the discretionary power of Court to grant or refuse an application for amendment of pleadings/court processes "It is trite that much as a party has the right to amend his process before the Court, yet that right is not open ended. In an application for amendment of pleadings as has transpired in the instant case, the applicant must by his affidavit evidence disclose sufficient facts establishing his entitlement to the prayer sought. The appellants sought principally in their proposed amendment to vary their claims by including the following new relief (a) to their existing two reliefs: a. A declaration that title to the land the subject matter of this suit described in survey plan No. EEI/RV/2008/005LD dated 09/09/2008 filed in this suit vests in the claimants and the claimants are the persons entitled to the right of occupancy over and in respect of the said piece or parcel of land. In their earlier claims, the appellants had only sought for the following two reliefs: a) N50,000,000 damages for trespass in that on or about 2002 the defendants without any colour of right whatsoever or the authority, leave or license of the claimants entered the Ohia Oboi farmland of the claimants, cleared the same preparatory for building thereby altering the character and user of the portion of land. b) A perpetual injunction against the defendants from committing further trespass on the said portion of Ohia Oboi of the claimants. (Underlining mine for emphasis). I must note that by seeking a restraining order against the defendants from committing further trespass on the said portion of Ohia Oboi of the claimants, it implies that the appellants are claiming title/ownership of the Ohia Oboi the subject matter of their claim. The catch phrase in this relief is "... of the claimants." Claim of entitlement is quite intrinsic in and under pins the appellants' said injunctive relief for trespass. In the case of Olohunde vs. Adeyoju (2000) LPELR-2586(SC), (2000) 10 NWLR Pt6. 676, pg. 562, the revered Iguh, JSC., had enjoined thus: It is an elementary principle of law that whenever a claim for trespass is coupled with a claim for an injunction, the title of the parties is automatically put in issue. See further Akintola vs. Lasupo (1991) 3 NWLR Pt. 180, Pg. 508 at 515; Abotche Kponuglo vs. Kodadja (1933) 2 WACA 24; Okorie vs. Udom (1960) 5 FSC. 162, (1960) SCNLR 326; The Registered Trustees of the Apostolic Church vs. Olowoleni (1990) 6 NWLR Pt. 58, pg. 514; Ndukwe vs. Acha (1998) 6 NWLR Pt. 552, pg. 25; and Nureni Carpenter vs. Bello Lanuwun (1970) All NLR 455. In the appellants' existing prayers for damages in trespass as well as an injunctive relief, the issue of title to the land concerned is inevitably put in issue. Since the claim for trespass and injunction afford an automatic pedestal to stand and seek entitlement to land, the appellants' by applying to formally amend their pleadings by adding a relief for declaration of title, cannot be seen to change the original nature of their action. Perhaps if the appellants' original statement of claim had only prayed for damages for trespass to the land in question, then their subsequent application to amend by seeking declaration of title might bring in a new dimension to their cause of action. This is because proof of claim for trespass simplicita, is basically anchored on proof by the claimant of exclusivity of ownership or possession of the land as at the time the cause of action arose. It is the finding and holding of this Court in the case of Irepodun-Ifelodun Local Government vs. Balemo (2007) LPELR-8439(CA), that: Where an amendment incorporates a cause of action which has been anticipated at the time the original writ of summons was issued or that the cause of action sought to be incorporated by way of amendment arose out of the same set of facts or transaction, it would be desirous to incorporate it to the original suit so as to be tried and issues in controversy determined at once. In other words, a trial Court could be within its powers to grant an amendment even if to do so would be to add to the existing cause of action or substitute therefor a new cause, provided that the additional or the new cause arises out of the same facts or substantially the same facts as a cause of action in respect of which the plaintiff has already claimed reliefs. As it is, the application to amend by seeking declaration of title to my mind, would neither overreach nor wreak injustice on the respondents, more so as the opportunity for them to consequentially amend their respective statement of defence/counter claim if so desired, is not foreclosed. The new facts as sought to be introduced into the pleadings by the appellants are substantially in tune with the facts in the original statement of claim. Not to allow the appellants plead and argue their claim and relief on declaration to title will obviously work injustice on the appellants and may throw up another litigation. By granting the amendment the parties shall have been afforded the chance to conclusively set out their respective issues and conceived rights and have them determined once and for all. This will accord with the decision inbank of Baroda vs. Iyalabani Co. Ltd. (2002) 13 NWLR (Pt. 785), pg. 551 at 579, wherein the apex Court in its wisdom enjoined as follows: It is a well established principle that the object of the Court is to decide the rights of the parties and not to punish them for mistakes they made in the conduct of their case by deciding otherwise than in accordance with their rights. I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. I do agree entirely with the submission of the learned counsel for the appellants that the amendment sought by the appellants to claim in expressed terms what was an implied claim in the action, cannot be said to be overreaching in that the new claim was anticipated when the writ of summons was issued and the respondents pleaded facts in their statement of defence which substantially addressed the impending claim. Moreover, the respondents' window to consequential amendment is wide open to them. The lower Court therefore, wrongly exercised its discretion by refusing the application of the appellants which by its very nature would not change the nature of the claim endorsed in both the Writ of Summons and the Statement of Claim. To this end and given all that I have said above, I resolve the lone issue in favour of the appellant and against the respondents. The appeal in the main succeeds. Accordingly, the ruling/decision of the lower Court delivered 3rd February, 2009 in suit No. PHC/2156/2003 is hereby set aside. Consequent upon this and taking cognizance of the provisions of Section 15 of the Court Appeal Act, 2004, this Court hereby grants the applicants/appellants' motion on notice filed 22nd October, 2008 in the following terms: 1. The applicants/appellants are granted leave to amend their Statement of Claim in suit No. PHC/2156/2003 in accordance with the Memorandum of Proposed Amendment annexed thereto. 2. The Amended Statement of Claim and the additional Witness Deposition annexed thereto are deemed properly filed and served today. I make no order for costs."per JOMBO-OFO, J.C.A. (Pp , Paras. B-D) - read in context

3 CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading judgment): This is an appeal against the ruling/decision of the High Court of Rivers State (hereinafter to be known as the trial/lower Court), coram Hon. Justice J. M. Kobani, J., delivered 2nd February, STATEMENT OF FACTS The appellants who at the lower Court were the claimants had by their writ of summons issued 19th December, 2003 commenced this suit claiming the following 2 reliefs: 1. N50,000,000 damages for trespass in that on or about 2002 the defendants without any colour of right whatsoever or the authority, leave or license of the claimants entered the Ohia Oboi farmland of the claimants, cleared the same preparatory for building thereby altering the character and user of the portion of land. 2. A perpetual injunction against the defendants from committing further trespass on the said portion of Ohia Oboi of the claimants. (See page 2 of the record of appeal). The 1st set of defendants who are herein the 1st set of respondents filed a statement of defense on 13th May, (See pages 9 14 of the record of appeal). 1

4 The 2nd set of defendants (2nd set of respondents) later joined as parties in April, 2006 and filed their statement of defence in October, 2006 whereby they entered a defense of title and further counter- claimed as follows against the claimants: a) A Declaration that the 2nd set of defendants are the bona fide owners of the piece and parcel of land known as OHIA OKPORO MGBUCHI lying and situate in Mgbuchi, Rukpokwu, Obio/Akpor Local Government Area, Rivers State which land is particularly described and verged red in Survey Plan No. ENL/RV 074/96 dated 21/11/96 and prepared by E. N. Lawson registered Surveyor. b) An order validating the sale of the said land by Mgbuchi Community by an Agreement dated 12th March, 1996 to the 1st set of defendants. c) An order of perpetual injunction restraining the claimants whether by themselves, their servants, agents or privies from in any manner howsoever entering or dealing with the said land or interfering with the possessory rights of the 1st set of defendants. d) The sum of N50,000, (Fifty Million Naira) only as general damages. 2

5 e) The cost of N1,000, (One Million Naira). (See pages of the record of appeal). Sequel to the parties compliance with the new Rivers State High Court Rules that came into in same 2006, the suit proceeded to trial. The CW1 testified in chief and was duly cross-examined by both sets of defendants. The claimants subsequently filed a motion on notice on 22nd November, 2008 seeking the leave of the lower Court to amend their statement of claim in accordance with the Memorandum of Proposed Amendment thereto annexed as well as an order deeming the Amended Statement of Claim and the additional Witness Depositions also annexed thereto as properly filed and served, the appropriate filing fees having been paid. The motion was supported by an affidavit of 12 paragraphs with 2 exhibits annexed and marked as Exhibits A and B respectively. (See pages of the record of appeal). In a considered ruling delivered 2nd February, 2009, the learned trial Judge refused to grant the application. Aggrieved by the ruling, the claimants sought for and obtained the leave of this Court on 12th May, 2014, to 3

6 file their Notice and Grounds of Appeal out of time. (See pages of the record of appeal). Pursuant to the rules and practice of this Court the parties filed and exchanged their respective briefs of argument. The appellants brief of argument dated 4th April, 2016 and filed 6th April, 2016 was settled by S. D. James, Esq. The 1st set of respondents brief dated and filed 26th September, 2016, but deemed properly filed and served 9th January, 2017, was settled by E. N. Ovunwo, Esq. The 2nd set of respondents brief dated and filed 29th June, 2016 and was equally deemed properly filed and served on 9th January, 2017, was settled by Wori N. Wori, Esq. The appellants formulated the following 3 (three) issues from the 6 (six) grounds of appeal: 1. Whether in an application for amendment it is permissible for the claimant/applicant to alter, add to or abandon some of his claims or reliefs in the action. (Distilled from Grounds 2 and 4). 2. Whether the trial Judge was right in refusing the appellants application on the ground that the amendment sought completely alters the nature and 4

7 scope of the claim. (Distilled from Grounds 3 and 6). 3. Whether the trial Judge was right in refusing the appellants application on the ground that the amendment sought is overreaching. (Distilled from Ground 1). The 1st set of respondents donated the following 4 (four) issues for determination: a) Whether the amendment sought by the claimants/appellants raised new issues for the first time? b) Whether the claimants/appellants can either change the nature of the claim or add to the scope of the case in which they have not already claimed the reliefs sought? c) Whether the affidavit evidence of the claimants/appellants motion for amendment culminating to this appeal has revealed all the necessary facts, particulars and ingredients that would have enabled the Court to exercise its discretion in favour of the said motion and whether the affidavit evidence ought not to be struck out, it being worthless and afflicted by false hood? d) Whether an appellate Court can grant reliefs not claimed by a party at the trial? On the side of the 2nd set of respondents they posited the following sole issue: 5

8 Whether the Court below rightly exercised its discretion by refusing the application by the appellants which by its very nature was intended to change the nature of the claim endorsed in both the Writ of Summons and the Statement of Claim by introducing for the first time a claim for declaration of title. I need to first of all observe that no issue was formulated out of ground 5 of the Notice and Grounds of Appeal. Ground 5 (five) is consequent upon that struck out. Having carefully considered the foregoing issues donated by the respective parties, I think that the sole issue of the 2nd set of respondents is consummate enough to sustain the appeal. Premised on this I shall adopt and it is so adopted, the sole issue of the 2nd set of respondents for the determination of this appeal. SOLE ISSUE FOR DETERMINATION Whether the Court below rightly exercised its discretion by refusing the application by the appellants which by its very nature was intended to change the nature of the claim endorsed in both the Writ of Summons and the Statement of Claim by introducing for the first time a claim for declaration of title. 6

9 The appellants in their submission are saying that the amendment sought by them is within the ambit allowed by law. They canvassed that a party is in law permitted to alter, add to or abandon some of his claim/relief in an action provided he does not thereby change the cause of action or bring a cause of action completely different from that in respect of which relief has already been claimed in the action or which was not in any way contemplated by the facts as the original cause of action. See Arabambi vs. Advance Beverages Ind. Ltd. (2005) 19 NWLR Pt. 959, pg. 32; Oguma Associated Co. Ltd. vs. IBWA (1988) 1 NWLR 658; Gowon vs. Ike Okongwu (2003) 6 NWLR Pt. 815, pg. 38; The Registered Trustees of Int l Sec. Schl., Orlu vs. Bicoz Oil Co. Nig. Ltd. (2014) LPELR-22836(CA), 34; Amakor vs. Obiefuna (1974) LPELR-452(SC), 13; and Ufomba vs. Ahuchaogu (2003) 8 NWLR Pt. 821, pg. 130 around which the appellants built their case in this appeal. The appellants finally urged on us to hold that the addition of a relief/claim of title by the appellants by their proposed amendment is permissible and does not alter the nature and scope of the claim, same having arisen from the same 7

10 set of facts as the cause of action in respect of which relief has already been claimed as the action. On the part of the 1st set of respondents their contention is that the amendment sought by the appellants raises new issue for the first time, and seeks to change the nature of the claim and add to the scope of the case by bringing into existence what never existed in the suit before. See F.B.N. Plc. vs. Akinyosoye (2005) 5 NWLR Pt. 918, pg. 340, 355; World Gate Ltd. vs. Senbanjo (2000) 4 NWLR Pt. 654, pg. 669, 670; and Kolapo vs. Alade (1985) 3 NWLR Pt. 12, pg Learned counsel for the 1st set of respondents argued that paragraph 6 of the appellants Statement of Claim was fraudulently substituted with an incongruous traditional history of dishonest intention to switch the searchlight of the Court from showing that the cause of action arose in He canvassed that the appellants again somersaulted by saying that the cause of action accrued in Relying on the case of Biode Pharmaceutical Ltd. vs. Adsell Ltd. (1986) 5 NWLR Pt. 46, pg. 1071, they urged on us not to allow the appellants abandon what they had admitted. See also 8

11 A.G Lagos State vs. Purification Techniques Nig. Ltd. (2003) NWLR Pt. 845, pg. (?); and Ude v. A-G., Rivers State (2002) 4 NWLR Pt. 756, pg. 66. He urged a dismissal of the appeal with substantial cost and uphold the decision of the lower Court not to grant the motion. The learned counsel for the 2nd set of respondents in their submission advanced the finding of the lower Court that there is a clear dichotomy or cleavage in our property law between the claim for declaration of title and that of trespass to land. That in the case of declaration of title, the plaintiff must prove ownership of land but not so in the case of trespass to land which is based on exclusive possession. That success on the tort of trespass is not always dependent on success on the claim for declaration of title. See Oyadare vs. Keji (2005) All FWLR Pt. 247, pg at 1599; Fagunwa vs. Adibi (2004) All FWLR Pt. 226, pg. 340 at 359; and Olagunju vs. Yahaya (2008) All FWLR Pt. 247, pg at The 2nd set of respondents further contended that the Court below rightly exercised its discretion by disallowing the application as allowing it would amount to changing 9

12 the nature of the claim endorsed in both the writ of summons and statement of claim, and thereby overreach the respondents. See Mamman vs. Salaudeen (2005) 18 NWLR Pt. 958, pg. 478 at , para. E-C; and Oluwi vs. Eniola (1967) NMLR 339, 340. They finally urged on us to dismiss this appeal as lacking merit. RESOLUTION OF THE LONE ISSUE It is trite that much as a party has the right to amend his process before the Court, yet that right is not open ended. In an application for amendment of pleadings as has transpired in the instant case, the applicant must by his affidavit evidence disclose sufficient facts establishing his entitlement to the prayer sought. The appellants sought principally in their proposed amendment to vary their claims by including the following new relief (a) to their existing two reliefs: a. A declaration that title to the land the subject matter of this suit described in survey plan No. EEI/RV/2008/005LD dated 09/09/2008 filed in this suit vests in the claimants and the claimants are the persons entitled to the right of occupancy over and in respect of the said piece or parcel of land. In their earlier claims, the appellants had only sought 10

13 sought for the following two reliefs: a) N50,000,000 damages for trespass in that on or about 2002 the defendants without any colour of right whatsoever or the authority, leave or license of the claimants entered the Ohia Oboi farmland of the claimants, cleared the same preparatory for building thereby altering the character and user of the portion of land. b) A perpetual injunction against the defendants from committing further trespass on the said portion of Ohia Oboi of the claimants. (Underlining mine for emphasis). I must note that by seeking a restraining order against the defendants from committing further trespass on the said portion of Ohia Oboi of the claimants, it implies that the appellants are claiming title/ownership of the Ohia Oboi the subject matter of their claim. The catch phrase in this relief is of the claimants. Claim of entitlement is quite intrinsic in and under pins the appellants said injunctive relief for trespass. In the case of Olohunde vs. Adeyoju (2000) LPELR-2586(SC), (2000) 10 NWLR Pt6. 676, pg. 562, the revered Iguh, JSC., had enjoined thus: It is an elementary principle of law that whenever a 11

14 claim for trespass is coupled with a claim for an injunction, the title of the parties is automatically put in issue. See further Akintola vs. Lasupo (1991) 3 NWLR Pt. 180, Pg. 508 at 515; Abotche Kponuglo vs. Kodadja (1933) 2 WACA 24; Okorie vs. Udom (1960) 5 FSC. 162, (1960) SCNLR 326; The Registered Trustees of the Apostolic Church vs. Olowoleni (1990) 6 NWLR Pt. 58, pg. 514; Ndukwe vs. Acha (1998) 6 NWLR Pt. 552, pg. 25; and Nureni Carpenter vs. Bello Lanuwun (1970) All NLR 455. In the appellants existing prayers for damages in trespass as well as an injunctive relief, the issue of title to the land concerned is inevitably put in issue. Since the claim for trespass and injunction afford an automatic pedestal to stand and seek entitlement to land, the appellants by applying to formally amend their pleadings by adding a relief for declaration of title, cannot be seen to change the original nature of their action. Perhaps if the appellants original statement of claim had only prayed for damages for trespass to the land in question, then their subsequent application to amend by seeking declaration of title 12

15 might bring in a new dimension to their cause of action. This is because proof of claim for trespass simplicita, is basically anchored on proof by the claimant of exclusivity of ownership or possession of the land as at the time the cause of action arose. It is the finding and holding of this Court in the case of Irepodun-Ifelodun Local Government vs. Balemo (2007) LPELR-8439(CA), that: Where an amendment incorporates a cause of action which has been anticipated at the time the original writ of summons was issued or that the cause of action sought to be incorporated by way of amendment arose out of the same set of facts or transaction, it would be desirous to incorporate it to the original suit so as to be tried and issues in controversy determined at once. In other words, a trial Court could be within its powers to grant an amendment even if to do so would be to add to the existing cause of action or substitute therefor a new cause, provided that the additional or the new cause arises out of the same facts or substantially the same facts as a cause of action in respect of which the plaintiff has already claimed reliefs. 13

16 As it is, the application to amend by seeking declaration of title to my mind, would neither overreach nor wreak injustice on the respondents, more so as the opportunity for them to consequentially amend their respective statement of defence/counter claim if so desired, is not foreclosed. The new facts as sought to be introduced into the pleadings by the appellants are substantially in tune with the facts in the original statement of claim. Not to allow the appellants plead and argue their claim and relief on declaration to title will obviously work injustice on the appellants and may throw up another litigation. By granting the amendment the parties shall have been afforded the chance to conclusively set out their respective issues and conceived rights and have them determined once and for all. This will accord with the decision in Bank of Baroda vs. Iyalabani Co. Ltd. (2002) 13 NWLR Pt. 785, pg. 551 at 579, wherein the apex Court in its wisdom enjoined as follows: It is a well established principle that the object of the Court is to decide the rights of the parties and not to punish them for mistakes they made in the conduct of their case by deciding otherwise than 14

17 in accordance with their rights. I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. I do agree entirely with the submission of the learned counsel for the appellants that the amendment sought by the appellants to claim in expressed terms what was an implied claim in the action, cannot be said to be overreaching in that the new claim was anticipated when the writ of summons was issued and the respondents pleaded facts in their statement of defence which substantially addressed the impending claim. Moreover, the respondents window to consequential amendment is wide open to them. The lower Court therefore, wrongly exercised its discretion by refusing the application of the appellants which by its very nature would not change the nature of the claim endorsed in both the Writ of Summons and the Statement of Claim. To this end and given all that I have said above, I resolve the lone issue in favour of the appellant and against the respondents. The appeal in the main succeeds. Accordingly, the 15

18 ruling/decision of the lower Court delivered 3rd February, 2009 in suit No. PHC/2156/2003 is hereby set aside. Consequent upon this and taking cognizance of the provisions of Section 15 of the Court Appeal Act, 2004, this Court hereby grants the applicants/appellants motion on notice filed 22nd October, 2008 in the following terms: 1. The applicants/appellants are granted leave to amend their Statement of Claim in suit No. PHC/2156/2003 in accordance with the Memorandum of Proposed Amendment annexed thereto. 2. The Amended Statement of Claim and the additional Witness Deposition annexed thereto are deemed properly filed and served today. I make no order for costs. ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have before now read the lead judgment of His Lordship, Jombo-Ofo, J.C.A. I agree with my learned brother that the lower Court unwarrantedly failed to exercise its discretion to allow for the amendment of the statement of claim of the Appellants. The approach of the learned trial was faulty and unsupportable in the circumstance. It was perverse and lacking in foundation. I too resolved the lone issue for 16

19 determination in this appeal. I abide by all the consequential order of my learned brother made in exercise or the powers of this Court under S.15 of the Court of Appeal Act, 2004, including the order on costs. ISAIAH OLUFEMI AKEJU, J.C.A.: I had the opportunity of reading the lead judgment of my learned brother, CORDELIA IFEOMA JOMBO-OFO, J.C.A before it was delivered. I agree that there is merit in the appeal and it is allowed. I abide by the consequential orders. 17

20 Appearances: S.D. James, Esq. For Appellant(s) E.N. Ovunwo, Esq. for 1st set of Respondents. Wori N. Wori, Esq. for 2nd set of Respondents For Respondent(s)