⦿ CASE SUMMARY OF:
Chief Adedapo Adekeye & Ors. v. Chief O. B. Akin-Olugbade (1987) – SC
- Authenticated copies of judgement;
- Amendment of pleadings;
- Chief Adedapo Adekeye;
- Alban Pharmacy Ltd.;
- Mrs. Claribel O. Oba Jimi;
- Mrs. Gloria O. Akinwale
Chief O. B. Akin-Olugbade
(1987) NWLR (Pt. 60);
(1987) 6 S.C 268;
⦿ LEAD JUDGEMENT DELIVERED BY:
- FOR THE APPELLANT
- Otunba J. Olu Awopeju;
- Chief F.R.A. Williams, SAN.
- FOR THE RESPONDENT
- Mr. M. I. Igbokwe.
⦿ FACT (as relating to the issues)
The present Respondent as Plaintiff sued two Defendants in the Lagos High Court namely Chief Adedapo Adekeye and Alban Pharmacy Limited claiming:
(a) An account of the Partnership business of “Excelsior Building Society” from the period 24th March 1959 to date;
(b) An Order restraining 1st Defendant from continuing to waste and mismanage the Partnership property or alienating same in any way;
(c) Arrears of rent from 2nd Defendant from 24th March, 1959 to date;
(d) Fifty thousand Naira (N50,000.00) damages from 1st and/or 2nd Defendant for negligence in managing the partnership business without authority;
(e) Payment in equal shares of all rents and profits accruing from the partnership business.
The statement of claim was later amended as:
Whereof the plaintiff claims against the Defendant jointly and severally as follows:
(a) A declaration that the property at the junction of Broad Street and Ports Novo Market Street (now renamed Abibu Oki Street) and comprised in Title No. LO.3158 is held by the second defendant subject to equitable interests and trusts in favour of the Plaintiff, the estate of G.O. Obajimi deceased and the two defendants.
(b) An order that the defendants do jointly and severally render an account of profits and income accruing to them or which reasonably ought to have accrued to them from the land and premises comprised in Title No. LO.3158.
(c) An Order for payment over to the Plaintiff of whatever sum or sums that may be found due and payable to the plaintiff after taking such account.
(d) An Order for partition or sale of the aforesaid land and premises in Title No. LO.3158.
(e) Such further or other orders as this Honourable Court may consider appropriate.
The trial judge found that there was indeed a partnership between the plaintiff and the respondent. But, In spite of the above formidable findings of fact the learned trial Judge dismissed the Plaintiffs claims. His reasons for dismissing the Plaintiffs case were partly because on the death of G.O. Obajimi the partnership as it were also died legally, partly also because of the way the Plaintiffs claims were framed and partly because the claims were caught by the Limitation Law of Lagos State.
The Plaintiff then appealed to the Court of Appeal Lagos Division.
That Court, on the 2nd May, 1985, in a very well considered judgment, allowed the Plaintiffs appeal and set aside the judgment and orders of Dosunmu, J. (as he then was) and in its place entered judgment for the Plaintiff/ Appellant in terms of his Amended Claim which I set out earlier on in this judgment.
The 1st and 2nd Defendants have now appealed to this Court against the unanimous judgment of the Court of Appeal.
- The learned justices of appeal were wrong in law to have allowed the amendment of Claim made in the Second Schedule of the Appellant’s Motion paper dated 28th February 1985 when these were substantially and utterly divergent to the reliefs sought in the Lower Court and on the basis of which the issues were fought and judgment delivered by Dosunmu, J. (as he then was) wherefore they came to a wrong decision to the prejudice and damnification of the Respondents who opposed the said application.
- That the amendment made by the Court of Appeal was in respect of Claims which “were substantially and utterly divergent to the reliefs sought in the lower Court and on the basis of which issues were fought and judgment delivered by Dosunmu, J.
- The learned Justices of Appeal were in error to have held that Limitation Law did not avail the Respondents against the Plaintiff as the property in issue was a trust property when the finding of fact of the Lower Court was to the contrary and in spite of the reasons given in Respondent’s Brief as to why the property was the exclusive property of the 2nd Respondent.
- This ground deals with the equitable defences of Laches, Stale Claims, Standing by, Acquiescence, etc.
- The judgment delivered by the Justices of Appeal on 2nd May 1985 was not made available to the parties on the same day to wit 2nd May, 1985 or immediately subsequently thereafter or even as at 13th May 1985 … is invalid null and void and of no legal effect as being in flagrant violation of Section 258(1) of the Constitution of the Federal Republic of Nigeria 1979.
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: DISMISSED WITH N600 COST]
- GROUND 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. I do not see how what had already been found as a fact by the learned trial Judge could possibly prejudice, injure, surprise, over-reach or embarrass or work an injustice against the 2nd Defendant or any of the Defendants for that matter. I am very sure that if the amendment granted by the Court of Appeal were applied for in the trial Court, it would also have been granted. Section 16 of the Court of Appeal Act No. 43 of 1976 allows the Court of Appeal to … “have full jurisdiction over the whole proceedings as if the proceedings have been instituted in the Court of Appeal as a Court of first instance …” Any Court of first instance would grant this innocuous amendment. The Court below was right in holding that “it would be a travesty of justice to hold that the Appellant must lose this appeal if the errors made by his Solicitors in the formulation of his Claims in the Court of trial … were left uncorrected when it is clear that no question of surprise or embarrassment or prejudice or attempt to over-reach arises.” I am in full agreement with the above dictum of Nnaemeka-Agu, J.C.A. in his lead judgment.
- GROUND 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The Court should allow all amendments that are required for the purpose of using already available evidence and what is more using the findings of fact of the trial Court. The Court does not set a time limit to do justice and in the same vein it does not or perhaps also cannot set a time limit to grant an amendment designed to achieve justice between the parties.
ii. In William Rainy v. Alexander Bravo (1872) L.R. 4 P.C.a. 287 the application to amend was made when the Judge was reading his judgment. It was refused by the trial Judge but it was ultimately granted by the Privy Council. The main concern of the Court in granting or refusing to grant an amendment is the interest of justice. All amendments ought to be granted if thereby justice is done between the contending parties.
- GROUND 3 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The 1st and 2nd Defendants had been managing or mismanaging the said trust property since 1958 without accounting to any of the beneficiaries. Now when called upon to account they plead the Limitation Law of Lagos State. The Court of Appeal, rightly in my view, rejected the defence of limitation of actions as that defence does not by Section 32(4) of the same Limitation Law of Lagos State Cap 70 of 1973 apply to claims founded on “any fraudulent breach of trust to which the trustee was a party or privy” nor does it apply to recover trust property or the proceeds thereof still retained by the trustee and converted to his own use.
ii. The trial Judge was wrong in not drawing the inference of an implied trust from his devastating findings of fact against the Alban Pharmacy the 2nd Defendant. The Court of Appeal was right in rejecting the defence of limitation of action.
- GROUND 4 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. How clean are the hands of the 1st and 2nd Defendants who had converted partnership property into their personal use and are still managing or mismanaging same? The rights to be protected in this action are the beneficial rights of the other members of the Partnership against the illegal and inequitable conduct of the 1st and 2nd Defendants/Appellants. Can it be ever said that it has become dishonest and unconscionable on the part of the beneficiaries of the property at No.128 Broad Street Lagos to claim their legal entitlement as such beneficiaries? If the answer is No as it is bound to be then the equitable defence of laches and acquaintance cannot avail the present Appellants. He who comes to equity must first do equity and also come with clean hands. The hands of the 1st and 2nd Defendants are so soiled that equity will close her eyes and her gates on them and refuse them any of her special protection or relief.
- GROUND 5 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The Supreme Court does hand over to the parties copies of its judgments on the very day they are delivered. It is however very difficult to see other Courts plagued by lack of funds, inadequacy of supporting staff and materials being able to provide parties with copies of judgment “on the day of delivery thereof.” Our attention was not drawn either in the Briefs or in the oral argument to any definitive authority of this Court on the effect of failure of the Court delivering the judgment to “furnish all parties with duly authenticated copies.”
Section 32(4) of the Limitation Law, Cap. 70 Vol. IV, Laws of the Lagos State of Nigeria, 1973 provides that: “(4) No period of limitation fixed by this Law shall apply to an action against a trustee or any person claiming through him where – (a) the claim is founded on any fraud or fraudulent breach of trust to which the trustee was party or privy, or (b) the claim is to recover trust property or the proceeds thereof still retained by the trustee and converted to his own use.”
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
In William Rainy v. Alexander Bravo (1872) L.R. 4 P.C.a. 287 the application to amend was made when the Judge was reading his judgment. It was refused by the trial Judge but it was ultimately granted by the Privy Council. The main concern of the Court in granting or refusing to grant an amendment is the interest of justice. All amendments ought to be granted if thereby justice is done between the contending parties.
Ifezue v. Mbadugha & Anor. (1984) 5 S.C. 79, Per Obaseki, J.S.C: The second arm of Section 258(1) which deals with furnishing of authenticated copies of the decision on the date of delivery does not affect the validity of the decision. The decision of the Court has to be delivered before authenticated copies of it are made available. An authenticated copy produced on days subsequent to the date of delivery do not lose their validity as authenticated copies because they were not furnished on the day the decision was delivered by the Court. As the failure to furnish authenticated copies of the decision to all parties to the cause on the date of delivery does not affect the genuineness of the authenticated copies, although a breach of the Constitutional provision for which the officers of the Court could be disciplined, that part of the provision of Section 258(1) of the 1979 Constitution is, in my view, directory.”
⦿ NOTABLE DICTA
The test as to whether a proposed amendment should be allowed is therefore whether or not the party applying to amend can do so without placing the opposite party in such a position which cannot be redressed by that panacea which heals every sore in litigation namely costs. – Oputa JSC. Adekeye v. Olugbade (1987)
It is only where the application to amend is made mala fide or if the proposed amendment would cause unnecessary delay or will in any way unfairly prejudice the other and opposite party, or where the amendment sought is quite irrelevant or useless, or would only and merely raise technical issues that leave to amend may be refused by a Court. – Oputa JSC. Adekeye v. Olugbade (1987)
The raison d’etre of the court trying a case is to do justice between parties. In our own background, apart from obeying the law, justice implies in a litiguous matter the settling of dispute between parties. Anything short of this can be dangerous to the integrity of the Court and impede confidence in trying issues. On many occasions, due to wrong briefing through ignorance of litigants or through the manifest errors of counsel, issues are not properly placed before the Court before hearing. At hearing, new matters do appear, relevant to material extent, but because they are either not pleaded and given in evidence whereby procedurally they are inadmissible, or pleaded and evidence is available but inadvertently left out in which case they are unproved. In such cases the issues between the parties are not properly put before the Court for determination. Without allowing amendment of pleadings to accommodate the patently relevant matters being brought to issue, or without allowing evidence inadvertently left out though pleaded, being put before the Court, the real dispute between the parties will be unsettled. In such cases justice would have failed due to adherence to inflexible legalism. – Belgore JSC. Adekeye v. Olugbade (1987)
Pleadings are technical weapons of practice but they are a shield and not a sword. The errors in pleadings which could be corrected in good time should be allowed to be corrected; so are omissions. They should be corrected at the earliest time they are discovered so that the other side will have ample opportunity to counter that amendment if it is so desired. The golden rule is that if the other side will not be embarrassed or placed in serious jeopardy as to amount to injustice, amendment of pleadings should be allowed. – Belgore JSC. Adekeye v. Olugbade (1987)
The object of Courts is to decide the rights of the parties and not to punish them for mistakes they may make in the conduct of their cases by deciding otherwise than in accordance with their rights. There is no kind of mistake or error which if not fraudulent or intended to over-reach, the Courts cannot correct, if this can be done without injustice, to the other party. Blunders may occur and nowadays they do occur with disturbing regularity, but all the same the Courts should not be stampeded into chasing the shadows of these blunders rather than facing the substance of the justice of the case. – Oputa JSC. Adekeye v. Olugbade (1987)
It will certainly be wrong to visit the inadvertence or mistake of counsel on the litigant. – Oputa JSC. Adekeye v. Olugbade (1987)
In the case now on appeal the central issue in controversy is Was the 2nd Defendant the Alban Pharmacy Ltd. a partner in the firm of Excelsior Building Society? If yes (as found by the trial Court) then comes the next question Was the building at No. 128 Broad Street erected with the money contributed by the Partnership? If the answer is yes (as was found by the learned trial Judge) then one legal consequence will be that the Alban Pharmacy Ltd is an implied trustee for the Partnership in respect of that property. – Oputa JSC. Adekeye v. Olugbade (1987)
A trust can be expressed or implied. When a trust is created intentionally by the act of the Settlor it is called an express trust. But where the legal title to property is in one person and the equitable right to the beneficial enjoyment of the same property is in, another, a Court of equity will from those circumstances infer an implied trust. Also a person incapable of being an express trustee may well be a trustee of an implied, resulting on constructive trust. – Oputa JSC. Adekeye v. Olugbade (1987)
It will be a sad day for our law of property if the doctrine of implied trust is brushed aside and any person who holds the property of another is allowed to set up the statute of limitation against the beneficial owner. One only hopes that that day may never dawn. – Oputa JSC. Adekeye v. Olugbade (1987)