This appeal relates to the validity of the Will of one Joseph Eyo Ita, a retired Principal Land Officer who died on 7th April 1993 leaving as his survivors a widow, a son (1st appellant) and a daughter (2nd appellant). At the time of his death, the deceased had landed properties, one of which is a leasehold property at No.50 Mayne Avenue, Calabar. By the aforesaid Will made on 24th March 1992 the respondent and one other now dead were named as the executors of the Will. At the Calabar High Court, the two appellants sued the respondent claiming a declaration that the "pretended' will of the deceased was invalid, an order to set it aside and an injunction. The respondent denied the claim contending that the Will was valid.

The appellants had in paragraph 23 of their statement of claim pleaded that the persons who purportedly witnessed the Will did not all sign in the presence of each other and the testator. The respondent did not specifically traverse that averment. However, in the course of trial, the respondent called witnesses to give evidence of the due execution of the Will. At the final addresses of counsel, learned counsel for the appellants urged that the evidence of the respondent's witnesses concerning the due execution of the will be expunged from the record as they relate to unpleaded facts.

It was in consequence of this that counsel for the respondent made an informal application for the amendment of his statement of defence by adding to paragraph 33 therefore: "the Will was duly executed in accordance with law". The application was opposed, but in its ruling which was incorporated in the judgment, the trial court granted the amendment. It found in favour of the respondent and dismissed the appellants' claims.

Being dissatisfied with the judgment of the trial court, the appellants appealed to the Court of Appeal which, in determining the appeal, considered the following provisions of the High Court of Cross River State (Civil Procedure) Rules, 1987:

Order 8 Rule 2(1):

“where by this Rules any application is authorized to be made to the Court or Judge in Chambers or a Registrar, such application may be made by motion”

Order 23, rule 1:

“The Court or a Judge in Chambers may at any time and on such term as to costs or otherwise as the Court or Judge may think just, amend any defect or error in any proceedings and all necessary amendment shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings.”

“Order 26, rules 1, 2 & 3: