CORAM
PARTIES
CHIEF EMMANUEL EYO ETAMISS AGNES EYO ITA APPELLANTS
ELDER CHIEF OKON H. A. DAZIE
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The appellant sought a declaration that the will of the deceased was invalid and as such should be set aside for want of due execution. In the course of the trial learned counsel for the respondent realized that he did not expressly deny paragraph 23 of the statement of claim nor did he plead due execution of the will in his statement of defence. He made an oral application to amend same in line with evidence on record and this was opposed to by learned counsel for the appellant arguing that there should be a formal application to enable the appellants react. He said the application at such late stage would bring untold hardship to the appellants. The Trial Court dismissed his contention and allowed the amendment and this was upheld by the Court of Appeal. Thus a further appeal to the Supreme Court.
HELD
Appeal dismissed
ISSUES
1. Was it right for the court below to affirm the decision of the trial court granting the oral application to amend the statement of Defence in line with evidence led?
2. Was it right for the Court of Appeal to reverse a finding of fact by the Trial Court which was not appealed against by the respondent?
RATIONES DECIDENDI
PROPRIETY OR OTHERWISE OF AN AMENDMENT
“On the propriety vel non of the amendment granted at the time it was sought, the law is that no kind of error or mistake, which if not fraudulent or intended to overreach the Court cannot correct if it can be done without injustice to the other party. See Amadi v. Thomas Aplin & Co. Ltd (1972) 1 All NLR (Pt. 1) 409; Shell BP Petroleum Development Company v. Johnmal Eng. Ltd (1974) 4 SC 33. Amendment will be allowed if by so doing the real issue in dispute can be raised and resolved” – – Per N. S NGWUTA JSC
“The traditional role of learned counsel for the respondent, in contradistinction to that of learned counsel for the appellant, is to support the judgment appealed against. Where, however, learned counsel for the respondent cannot, in good conscience, support the judgment appealed against, he should make his position known to his client with a view to either conceding the issues raised by the appellant or withdrawing from the appeal if his client persists in his pursuit of same” – Per N. S NGWUTA JSC
ROLE OF RESPONDENT COUNSEL IN AN APPEAL
“The traditional role of learned counsel for the respondent, in contradistinction to that of learned counsel for the appellant, is to support the judgment appealed against. Where, however, learned counsel for the respondent cannot, in good conscience, support the judgment appealed against, he should make his position known to his client with a view to either conceding the issues raised by the appellant or withdrawing from the appeal if his client persists in his pursuit of same” – Per N. S NGWUTA JSC
CASES CITED
See Amadi v. Thomas Aplin & Co. Ltd (1972) 1 All NLR (Pt. 1) 409;Shell BP Petroleum Development Company v. Johnmal Eng. Ltd (1974) 4 SC 33Engr. Samuel Melifeonwu v. Egbunike (2001) 1 NWLR (pt. 4) 271
STATUTES REFERRED TO
NONE