Appeal Court. 24 April, 1936. Appeal from Supreme Court

. Suit for order- to set aside a conveyance and a mortgage deed-Claim not substantiated by evidence-Application to amend refused.

Held (Petrides, C.]., dissenting): If substantial justice can be secured by an amendment of pleadings, such amendment should be allowed. Case remitted to trial Court for amendment of claim and further trial.

The facts are sufficiently set out in the judgment. J. C. Zizer for Appellants.

A. L. Johnson (with him S. A. Thomas) for Respondents.

The following judgments were delivered :-

KINGDON, C.J., NIGERIA.

In this case the plaintiffs suing for and on behalf of themselves and other members of the family of Jinadu Shomade (deceased) sought an order

" setting aside the registered conveyance dated the 4th day of June, 1931, made between the first defendant and the second and third defendants and the registered deeds of mortgage dated the 22nd day of July, 1931, and the 14th day of September, 1932, respectively, made between the second and third defendants of the one part and the fourth defendant of the other part, in respect of the property situate at and being No. 51 Church Street, Lagos, in the colony of Nigeria."

It is common ground that on the 4th June, 1931, the first defendant executed a conveyance of the property in dispute purporting to convey it in fee simple to the second and third defendants who are her own children, and that subsequently the second and third de­fendants mortgaged the property to fourth defendant, who is now seeking to foreclose.

The plaintiffs seek to stop the foreclosure and get the deeds of conveyance and mortgage set aside, on the ground that the property is theirs. The case they sought to establish by their pleadings is that the property was the property of their father Jinadu Shomade, half brother of first defendant, and has descended on his decease to themselves and his other children on whose behalf they sue, and it never was the property of first defendant, she being merely allowed to occupy a portion of it and being handed the title deeds for safe custody. The defendants, on the other hand, contended by their pleadings that the property belonged to Ayisatu Ajayi, mother both of first defendant and of Jinadu Shomade, and that Ayisatu Ajayi gave it during her lifetime to first defendant and another of her children named Folasheke, so that on Folasheke's death the property .­became the absolute property of first defendant who alienated it  accordingly ...

Neither party's case is borne out by the evidence so far given in the Court below. The plaintiff clearly failed to prove his story; and, realising this, his Counsel in the Court below asked leave to amend his claim" to set up a claim as co-owner with first defendant as descen­dants of Ayisatu." The learned trial Judge refused to allow the amendment on the ground that it would be in direct conflict with the evidence which had been given and, without calling upon the defen­dants gave them judgment with a total of 24 guineas costs. The question of allowing an amendment is one entirely for the discretion of the Judge, and it is difficult to say that he was wrong in refusing it; and clearly, failing amendment, there was no case for defendant to answer.

But it does seem to me that the Judge's refusal to grant an amendment has resulted in the Court failing in its primary object, which is to do substantial justice between the parties. It is possible to allow the claim to be amended so that the claim as co-owner through Ayisatu is in the alternative and not in substitution of the original claim, and it is not necessary to allow the plaintiffs to give evidence contradicting their previous evidence and so perjuring themselves. This curious position arises because during the plaintiffs' case evidence was given by leave of the Court on behalf of the de­fence. The first defendant's former solicitor produced the conveyance (Exhibit "B") which he swears he prepared on her instructions. It is the recitals in this deed which are material. It recites that Ayisatu Ajayi acquired the fee simple of the property and then that Ayisatu died intestate" leaving one Folasheke Ogunbiyi (now deceased) and the Grantor (i.e. first defendant) her only children her surviving." It further recites that Ayisatu Ajayi remained in uninterrupted possession until her death when according to the recitation, the property passed to Folasheke and first defendant jointly and on Folasheke's death to the first defendant alone.

This recital is admittedly untrue in a vital particular, namely as to which of Ayisatu's children survived her. It is now admitted by the pleadings that Folasheke predeceased Ayisatu and that Shango­muyiwa and Jinadu Shomade were alive at her death in addition to first defendant. This being so, if the other recitals in Exhibit "B" are true, namely that Ayisatu acquired the property and remained in un­disturbed possession until her death intestate, it follows that Jinadu Shomade had a joint interest which has passed to his children, the present plaintiffs, and that in consequence they would be entitled to the relief which they seek.

      If therefore the amendment to the claim had been allowed in the alternative, it would have been competent to plaintiffs' Counsel, without calling any further evidence, to submit to the Court that even though their story should be rejected they were entitled to succeed on their alternative claim on the evidence already before the Court. It would then have been necessary for the defendants to be given an opportunity of showing that this alternative claim ought not to succeed, if they could do so either by argument or by fresh evidence.

In my view substantial justice can only be secured in this case by allowing this course to be followed. I am therefore of opinion that this appeal should be allowed and that the judgment for the defen­dants should be set aside and that the case should be remitted to the lower Court with directions that the plaintiffs should be allowed to amend their claim by setting up as an alternative to their original claim a claim as co-owners with first defendant as descendants of Ayisatu, and that the defendants should then be called upon for their defence.

But in view of the fact that plaintiffs have been rightly held to fail completely on their original claim I consider that the order of the lower Court as to costs should stand, whilst further costs in the lower Court should abide the ultimate issue, and further that each party should bear their own costs in this Court.

WEBBER, C.J., SIERRA LEONE ..

I concur.

PETRIDES, C.J., GOLD COAST.

I regret I am unable to concur with the judgment just read by the learned President as it grants a new trial on grounds not raised by appellant in his grounds of appeal and in consequence not argued by either side at the hearing of this appeal.

In the judgment just read it is pointed out" that the question of allowing an amendment is one entirely for the discretion of the Judge. and it is difficult to say that he was wrong in refusing it; and clearly failing amendment, there was no case for the defendant to answer." Finding myself in entire agreement with that pronouncement I con­sider that the appeal should be dismissed on the ground that appel­lant has failed to establish either of the grounds of appeal on which he relied.

I am of the opinion that when it became evident that appellant could not succeed in the Court below on the facts set forth in his statement of Claim, and that the trial Judge would not grant him leave to amend it, he should have bowed to the inevitable and com­menced a fresh action, basing his claim to relief on the ground that he was, on respondents' admissions, part owner of the property in dispute.