The plaintiff/respondent at the Abeokuta High Court claimed from the defendants/appellants the sum of £25 as damages for trespass allegedly committed by the defendants/appellants on the plaintiff's/respondent's land at Abeokuta, between November and December, 1963, and also possession of the said land. The defendants/appellants denied trespassing on the said land and claimed to be owners of the land.

At the close of the case, Counsel for the defendants/appellants applied to amend paragraph 1 of the Statement of Defence by striking "and 4" out of it to show that paragraph 4 of the Statement of claim was not admitted. The trial Judge refused the application saying, inter alia, that: "I cannot, therefore, grant any amendment of the Statement of Defence in order to bolster up an incredible defence."

He then gave judgment for the plaintiff/respondent in trespass and awarded £25 damages but refused the claim for possession.

The defendants/appellants appealed to the Court of Appeal on the following grounds:-

1.      "That the learned trial Judge was wrong in law to have held that the defendants were liable in trespass after it was shown that they were in effective possession of the land.

2.      That the learned trial Judge erred in law to have held that the defendants admitted that the land belonged to Oshiele Sowumo by their Statement of Defence after he had wrongly refused to allow the defence to amend its paragraph 1 of the Statement of Defence by deleting "and 4" from it.

3.      That the learned trial Judge was wrong in law by relying on exhibit B. and the sale by Oshiele Sowumi to Ayandiran as root of plaintiff's title without considering whether or not the land is a family property.

4.      That the whole decision is unwarranted, unreasonable and cannot be supported, having regard to the weight of evidence."

On Appeal:-

HELD:

(1)     Order XIV of the High Court (Civil Procedure) Rules allows amendment at any time of the proceedings provided no prejudice will be occasioned to the opposing party and the amendment will assist in settling the controversy.

(2)     What the trial Judge should have done was to consider whether or not the amendment will assist in settling the matters in controversy and whether it would lead to re-opening the case if amendment was allowed. Instead, he proceeded to consider the whole issue including credibility of witnesses that were irrelevant to the consideration of the issue of amendment. The trial Judge was in error to have refused the amendment.

(3)     On the issue of trespass, if the plaintiff/respondent was the owner of the land and she was ousted wrongly by the defendants/appellants, the defendants/appellants would be trespassers as they could not by their illegal act defeat the plaintiff's/respondent's legitimate claim.

(4)     In the view of the court, satisfactory title had not been proved on behalf of the plaintiff/respondent; nor was there any cogent evidence to show that she was in effective possession of the land before the alleged trespass. Consequently the lower court was clearly wrong in holding the defendants/appellants liable in damages.

(5)     The trial Judge had largely dwelt on the criticisms of the conduct of the case for the defence without adverting his mind to the principle that the plaintiff/respondent must rely on the strength of her case and not on the weakness of that of the defendants/appellants in proving her title.

Appeal allowed: Judgment of lower court set aside: Order of dismissal substituted.

Cases referred to:

England v. Palmer 14 W.A.C.A. 659

Ajoke v. Yesufa Oba (1963) 1 ALL N.L.R. 73.

Thompson v. Park (1944) 1 K.B. 408

Browne v. Dawson (1840) 12 Ad & E1 624.

Standford v. Hurlstone (1873) 9 Ch. 16.

Abotche Kpomuglo & ors. v. Adja Kodaja 2 W.A.C.A. 24

Awooner Renner v. J.E. Annan & 2 ors. 2 W.A.C.A. 258

Oluyole & anor. v. Latunji Ajimoti Olofa SC. 428/1965 delivered on 17/3/67./

Owoola Abeje & anor. v. Oni Amope CAW/27/69. delivered on 16/12/69

Edict referred to:

Court of Appeal Edict 1967 Section18

APPEAL from High Court

Lalude, for the Defendants/Appellants

Kolawole, for the Plaintiff/Respondent

Akinkugbe, J.A.:-The respondent at the Abeokuta High Court (Adewale Thompson, J.) claimed from the two appellants the sum of £25 (Twenty-Five Pounds) damages consequent upon trespass allegedly committed by the appellants on the respondent's land at Lafenwa Abeokuta between November and December, 1963. In addition respondent claim for possession of the said land.

The respondents and appellants will hereinafter in this judgment be referred to as plaintiff and defendant, respectively.

The facts deposed to by the plaintiff at the lower court are these: One Ayandiran who gave evidence as plaintiff's second witness bought a piece of land edged red in exhibit A-the plan tendered in evidence-in the year 1928 from one Oshiele Sowumi. He was in possession of this land until 1945 when he sold it to the plaintiff's father Egunjobi Bello. Egunjobi Bello plaintiff's father was in possession of the land undisturbed until 1963 when he died.

On the death of Egunjobi Bello in 1963, there were four children including the plaintiff surviving him. The other three were Liadi, Ramoni and Akano. The plaintiff was in possession of the land with her brothers. Between November and December, 1963, the defendants "broke and entered" the land and took possession of same without plaintiff's authority. The 1st defendant had his carpenter's shed on the land whilst 2nd defendant had a brothel there. Although she protested against their possession of the land they did not heed her protest. She tendered exhibit B a statement of account of sale of the land by Messrs A.W. Thomas & Co. a firm of Auctioneers.

Both defendants in line with their statement of Defence denied trespassing on the said laid particularly the area edged blue in exhibit A alleged to be the area in dispute. They both claimed to be owners of the land, that the land was acquired from Oshiele family and that it never belonged to Oshiele Sowumi a member of Oshiele Family.

They called two members of Oshiele Family who testified that the land originally did not belong to Oshiele Sowumi but that it belonged to Oshiele Family that sold it to the defendants.

The defendants said that the plaintiff never once disturbed them on the land since they have been there many years before she commenced her action.

At the close of the case, the learned Counsel for the defence applied to amend paragraph 1 of the Statement of Defence by striking "and 4" out of it to show that paragraph 4 of the Statement of Claim was not admitted. The learned trial Judge refused but said that he would give his reasons for refusal in his judgment.

In the judgment later delivered, the learned trial Judge devoted considerable time to considering the issue of amendment and finally rejected the application. He then found for the plaintiff in trespass and awarded £25 damages but refused the claim for possession.

The defendants who were not satisfied with the decision of the learned trial Judge appealed on eight grounds.

The eight grounds can be considered under four heads as under:-

1.      "That the learned trial Judge was wrong in law to have held that the defendants were liable in trespass after it was shown that they were in effective possession of the land.

2.      That the learned trial Judge erred in law to have held that the defendants admitted that the land belonged to Oshiele Sowumi by their Statement of Defence after he had wrongly refused to allow the defence to amend its paragraph 1 of the Statement of Defence by deleting "and four" from it.

3.      That the learned trial Judge was wrong in law by relying on exhibit B and the sale by Oshiele Sowumi to Ayandiran as root of plaintiff's title without considering whether or not the land is a family property.

4.      That the whole decision is unwarranted, unreasonable and cannot be supported, having regard to the weight of evidence."

We shall first deal with the issue of amendment of paragraph 1 of the Statement of Defence. Order XIV of the High Court Civil Procedure Rules allows amendment at any time of the proceedings provided no prejudice will be occasioned to the opposing party and the amendment will assist in settling the controversy.

In his consideration of the application the learned trial Judge referred to Ababio v. Quartey cited in England v. Palmer 14 W.A.C.A. 659 where the Privy Council said:-

"The court ought to have allowed all the necessary amendments that were required for the purpose of enabling the use of evidence that had been obtained for the purpose of settling the real controversy between the parties."

He also quoted the following passage from Ajoke v. Yesufu Oba (1962) 1 All N.L.R. 73 Part of the head note that reads:-

"An Appellate Court will not disturb the judgment of a trial Court on the grounds that the trial Judge in the course of his judgment of his own motion and without previously inviting the parties to address him, thereon amend the claim provided that the amendment did not raise any issues of fact not already pleaded by plaintiff and that the defendant had not suffered any actual prejudice from the course which was followed."

The learned trial Judge then said:-

"In my view the principle enunciated in Ajoke v. Oba is the correct interpretation of our Order XIV."

In spite of the above proper direction, the learned Judge regrettably deviated from it and proceeded to consider the whole issues including credibility of witnesses that are irrelevant to the consideration of the issue of an amendment within a larger issue of the substantive claim. He finally concluded by saying:-

"I cannot, therefore, grant any amendment of the Statement of Defence in order to bolster up an incredible defence."

With respect, what the learned trial Judge should have done was to consider whether or not the amendment will assist in settling the matters in controversy and whether it would lead to reopening the case if amendment was allowed.

Although paragraph 1 of the Statement of Defence admitted that Ashiele Sowumi owned the land, paragraph 4 denies it by saying that the land is Oshiele family's land. The evidence adduced by the defence witness is to the effect that the land belonged to Oshiele Family. It is clear that paragraph 1 and paragraphs 4(a) and (b) of the Statement of Defence cannot stand together when considering the issue as to whether the land belongs to Oshiele Sowumi or Oshiele Family. It is also clear from the evidence that the defence meant that the land belonged to Oshiele Family. The learned trial Judge was in error to have refused the amendment.

By virtue of section 18 of the Court of Appeal Edict, 1967, we amend paragraph 1 of the Statement of Defence by deleting "and 4" from it.

On the first ground of appeal concerning the issue of Trespass and possession, it is to be pointed out that if the plaintiff was the owner of the land and she was ousted wrongly by the defendants, the defendants would then be trespassers as they could not by their illegal act defeat plaintiff's legitimate claims.

In Thompson v. Park (1944) 1 K.B. 408 a licensee of a building who after the determination of his licence was ejected from the building after which he forcibly retook possession was held liable in trespass despite his possession of the building. An order of interim injunction was granted to restrain him from trespassing and continuing to trespass on the building. See also Browne v. Dawson (1840) 12 Ad & El 624 and Standford v. Hurlstone (1873), 9 Ch. App 16.

On the pleadings of the plaintiff, despite the fact that the defendants alleged that they were in possession, the claim is in order. Here we have to examine the evidence as to whether or not the plaintiff could be described as the owner of the land as it is relevant in determining whether or not the defendants are trespassers. See Abotche Kponuglo & ors. v. Adja Kodaja 2 W.A.C.A. 24 at p.25. If possession is in doubt it is in him that can prove better title. See Awooner Renner v. J.E. Annan & 2 ors. 2 W.A.C.A. p.258.

The plaintiff tendered exhibit B, statement of account of sale of the land to Egunjobi Bello by Ayandiran as alleged by the plaintiff. exhibit B, of course, does not convey any title to the plaintiff's father.

On the evidence adduced by the plaintiff she alleged that Oshiele Sowumi sold the land to Ayandiran but was denied in the Statement of Defence. It was also alleged in the Statement of Defence and given in evidence that the Oshiele Family had always exercised right of ownership and possession on the land.

Apart from the evidence of Ayandiran no witness was called to tell the court that the land was sold by Oshiele Sowumi to Ayandiran. One would have expected that a member of Oshiele Sowumi Family or Oshiele Family would come to give evidence in court to support the allegation of the plaintiff.