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Kode v. Yussuf

LASISI KODE

( Substituted by order of court for Lamidi Atanda, the deceased, for himself and on behalf of Odetunde Family)

V

ALHAJI SUARA YUSSUF

SUPREME COURT OF NIGERIA

ADOLPHUS GODWIN KARIBI-WHYTE, JSC ( Presided )

MICHAEL EKUNDAYO OGUNDARE, JSC

SYLVESTER UMARU ONU, JSC ( Read the Lead Judgment )

OKAY ACHIKE, JSC

SAMSON ODEMWINGIE UWAIFO, JSC

SC.239/1993

FRIDAY, 9TH FEBRUARY, 2001.

APPEAL - Amendment of pleadings in Court of Appeal - Appellant seeking to amend pleading in Court of Appeal - Where fact sought to be amended is radically at variance with the case presented in the trial court - Refusal of Court of Appeal to allow amendment - Propriety of

LAND LAW - Declaration of title - Claim by grant and by settlement Difference between - Nature of

PRACTICE AND PROCEDURE - Court of Appeal - Power of to grant amendment of pleading

PRACTICE AND PROCEDURE - Errors or mistakes in legal process Duty of court to award - Principle in Cropper vs. Smith (1884) 86 CH. D. 710, 711 considered and distinguished

PRACTICE AND PROCEDURE - Evidence lawfully on record - Right of parties to use with or without amendment

PRACTICE AND PROCEDURE - Pleadings - Amendment designed to lead to a new trial or render appeal useless - Need to refuse

PRACTICE AND PROCEDURE - Pleadings - Amendment of  - Purpose and nature of amendment

PRACTICE AND PROCEDURE - Pleadings - Amendment of - When will be refused

PRACTICE AND PROCEDURE - Pleadings - Amendment of - Where aimed to deprive a party of vested right - Duty of court to refuse

PRACTICE AND PROCEDURE - Pleadings - Amendment of - Where aimed to harmonise with evidence and findings of trial court - Duty of court to allow

PRACTICE AND PROCEDURE - Pleadings - Amendment of - Where intended to overreach or made mala fide - Attitude of court

PRACTICE AND PROCEDURE - Pleadings - Amendment of - Whether allowed at any time

PRACTICE AND PROCEDURE - Pleadings - Amendment of in Court of Appeal prompted by findings of trial Court - Where aim of to bring pleading in line with the judgment of trial court being challenged in the appellate Court - Duty of court to refuse

PRACTICE AND PROCEDURE - Pleadings - Amendment sought in appellate court - Where aimed at correcting error which is a mere misnomer - Duty of court to allow amendment

PRACTICE AND PROCEDURE - Pleadings - Binding force thereof on parties and courts

PRACTICE AND PROCEDURE - Pleadings - Evidence not based thereon -  Effect

WORDS AND PHRASES - Grant of land and settlement - Meaning of

Issue:

Whether the Court of Appeal was right in refusing the application of the appellant/applicant to amend his pleadings on the ground that it was aimed at altering the root of title to the disputed land  from one of grant to settlement and which basically conflicted with the appellant/applicant’s case as pleaded in the trial court.

Facts:

The plaintiffs/appellants in an action for declaration to a right of occupancy to a parcel of land pleaded their root of title to be a grant made by one Alesinloye to their ancestor, Odetunde, during the reign of Maye. The defendant/respondent denied this and pleaded his root of title to be by settlement by one Oderinde. The appellants, rather than lead evidence of grant by Alesinloye during the reign of Maye, gave evidence to the effect that Odetunde settled on the land and that Oba Oluyole was Olubadan at the time. That after Ibadan-Ijebu war, Odetunde settled there with his family and created a village there. Instead of expunging those pieces of evidence in the course of preparing his judgment, the trial  court did not, and, indeed entered judgment for the appellants. The respondent appealed to the Court of Appeal, and one of the grounds of appeal raised the issue of the variance between the evidence and the relevant averment in the statement of claim. It was at that stage that appellant applied to have the said averment in the statement of claim amended in order, inter alia “to bring the evidence in line with the pleadings.” The Court of Appeal refused to grant the amendment on the ground that it would constitute a different case from the one the appellant originally put forward at the trial court. The plaintiff ( respondent in the Court of Appeal) then appealed to the Supreme Court and filed an application for amendment in the manner of the relief sought in the Court of Appeal.