OGUNTIMEYIN V. GUBERE & ORS

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NIGERIAN SUPREME COURT CASES

[1964] N.S.C.C.

OGUNTIMEYIN V. GUBERE & ORS

JAMES OGUNTIMEYIN

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APPELLANT

V

1.

KPEKPE GUBERE

2.

NAMIGIN RHORAYE

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RESPONDENTS

(for themselves and on behalf of the

ORIA family of Aladja)

SUIT NO. FSC 46/1963

SUPREME COURT OF NIGERIA

BRETT,

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J.S.C.

TAYLOR,

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J.S.C.

BAIRAMIAN,

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J.S.C.

24th April, 1964

Practice and Procedure - Amendment of pleadings for plaintiff after close of

evidence - Judgment - Declaration of title to land not in dispute.

ISSUE:

1. Whether a trial court should grant a plaintiff leave to amend his pleadings after

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close of evidence.

FACTS:

It was common ground that the defendant owned two enclaves within the plain-

tiffs' tract of land and their plan showed them verged pink. The defendant had

trespassed beyond his western enclave, so the plaintiffs claimed by their pleading

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a declaration of title to their tract, and an injunction to restrain the defendant from

going beyond the enclaves verged pink. The defendant had a plan showing his

claim: one enclave as on the plaintiffs' plan, the other extending further; in his

defence he said he joined issue only on the land he claimed according to his plan.

The plaintiffs withdrew their first plan and had a second plan made showing

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this time the enclaves they conceded verged green, and the portion in dispute

verged pink. They should have amended their pleading to claim a declaration to

the land verged blue less the enclaves verged green, and an injunction to restrain

trespass on the portion verged pink in their new plan. They did not so amend; but

at the outset of the trial they called their surveyor - and the defendant called his

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next - and they both agreed that the plaintiffs' new plan showed the defendant's

claim correctly and the portion in dispute verged pink; and each side called its wit-

nesses. In his closing address counsel for the defendant began by arguing that

on the pleadings he was entitled to judgment; whereupon counsel for the plaintiffs

asked for leave to amend and bring his pleading into line with the new colourings

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on their plan, and later applied in writing. After argument the court below gave

leave. Counsel for the defendant then put in some court proceedings as evidence

and addressed; the other side addressed too. Judgment was for the plaintiffs.

On appeal the main argument for the defendant was that it was wrong to allow

such an amendment at a stage prejudicial to the defence; that the defendant might

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have wished to call more evidence, and that in any case the declaration (in error,

as the other side agreed) included the enclaves conceded to the defendant and

also extended beyond the portion in dispute.

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