BIYA & ORS v. BONET & ORS (2020)

BIYA & ORS v. BONET & ORS

(2020)LCN/14685(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, October 09, 2020

CA/K/396/2016

RATIO

APPLICATION: PRINCIPLES GUIDING THE GRANT OF AN APPLICATION FOR AMENDMENT TO CORRECT A MISTAKE

First, an application for amendment to correct a mistake or slip in the proceedings and designed to meet the end of justice shall be granted no matter at what stage in the proceedings the application was made. See: Ibe v. Onuorah (1988) 7 NWLR (Pt. 558) 383, 393.
Secondly, an application by a defendant to amend this pleadings can be granted even after the close of Plaintiffs’ case if the Plaintiff will not suffer any prejudice by such an amendment. See:Okolo v. Nwamu (1973) 2 SC 59.
Thirdly, an application to amend pleadings will not be granted which if granted will unduly delay hearing of the suit or unfairly prejudice either party to the suit. See: Alsthom S. A. v. Saraki (2000) 14 NWLR (Pt. 687) 415.
Fourthly, an application to amend will not be granted if the applicant is acting mala fide (in bad faith) or if it will cause injustice to the Respondent or cause him some injuries that cannot be compensated by cost or otherwise. See: Ojah v. Ogboni (1976) 4 SC 69.
Fifthly, when evidence in a case has been concluded, application to amend at that stage will not be granted except an amendment seeking to reflect on evidence already before the Court. See: Imonikhe v. Attorney General, Bendel State(1992) 3 SCNJ (Pt. 1) 197, 207; Anakwe v. Oladeji (2007) LPELR-3837 (CA).
Sixthly, amendment purely for the purpose of determining the real issue(s) in controversy between parties ought to be granted at any stage provided:
(i) The applicant is not acting mala fide or trying to overreach the other party. See: World Gate Ltd v. Senbajo (2000) 4 NWLR (Pt. 654) 681-682; Ogidi v. Egba (1999) 10 NWLR (Pt. 621) 42.
Seventhly, where an applicant is acting mala fide, his application to amend will be refused. Similarly, where the amendment sought will change the character or nature of the case, and consequently result to injustice, such will be refused. See: Are v. Saliu (2006) ALL FWLR (Pt. 327) 574, 597, Eke v. Akpu (2010) ALL FWLR (Pt. 510) 640, 657. PER HUSSAINI, J.C.A.

AMENDMENT: GENERAL RULE ON AMENDMENT

As mentioned before, an amendment purely for the purpose of determining the real issues in controversy will not be refused but an amendment made with a view to completely change the line of defence case, as in this instant case, is made in bad faith. Such an application for amendment ought to be refused. See Akaninwo v. Nsirim (2008) ALL FWLR (pt. 410) 610, 657, 658.
In the case of Compagnie Generalle DE GEOPHYSIQUE Nig Ltd v. Idorenyin (2015) ALL FWLR (Pt. 804) 2093, 2103, the Apex Court held:
“As a general rule, an amendment is seldom refused by the Court, however, where taking into consideration the prevailing circumstances of a particular case, the Court is of the view that the proposed amendment is fraudulent, intended to overreach or in bad faith would cause avoidable delay, take the plaintiff by surprise or introduce new matters and generally work injustice against one of the parties in the case. In short, when the trial Court comes to the conclusion that the application for amendment would occasion one of the negative consequences mentioned above as in the instant case where the trial Court came to the conclusion that to allow the amendment sought at the stage it was applied for, will be tantamount to overreach the plaintiff/Respondent and work injustice against him which all the authorities cited by both sides are opposed to.”
The grant and refusal of grant of an application for amendment is hinged on proper consideration and application of the rules and precepts which govern such procedures hence the refusal of grant of application does not necessarily translate to denial of fair hearing. PER HUSSAINI, J.C.A.

Before Our Lordships:

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

MR. YASHEN BIYA 2. MR. DELE AWAN BIYA 3. MR. MUSA BIYA 4. MR. JOEL BIYA (SUING FOR THEMSELVES AND ON BEHALF OF THE BISHUT FAMILY OF KAGORO) APPELANT(S)

And

HIS ROYAL HIGHNESS MR. UFUWAI BONET 2. THE GOVERNOR OF KADUNA STATE 3. THE COMMISSIONER, MINISTRY OF LANDS, SURVEY & COUNTRY PLANNING, KADUNA STATE 4. THE ATTORNEY GENERAL & COMMISSIONER OF JUSTICE, KADUNA STATE. RESPONDENT(S)

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): This appeal is against the interlocutory decision delivered at the High Court of Kaduna State on the 17th June, 2015 by which decision the Court granted Respondents’ application, the Motion on Notice, dated 17th June, 2014 and filed on the 23rd June, 2014 seeking as it were, leave to further amend the defendants’ statement of defence.

The said application was moved and argued at the said High Court amid opposition by the Plaintiffs, the Appellants herein, through their counsel.

The High Court in a considered Ruling delivered on the 17/6/2015 was however constrained to grant the application as it did so far as same was “brought to bring out the real issue in controversy before (sic) the parties for the fast (sic) determination of the substantive case”.

Piqued by that Ruling and Order, the Appellants by the Notice of Appeal dated 4/2/2016 and filed on 8/2/16 with leave obtained in this Court on 2/2/2016, have appealed on two (2) Grounds. See pages 260 – 268 of the record of appeal.

Briefs of argument were filed and

Exchanged between the parties and their counsel and same adopted and or deemed argued on the 8th July, 2020, when the appeal came up for hearing.

In the brief of argument filed for the Appellants, the only issue formulated for determination from the two (2) Grounds of appeal is:
“Whether considering the earlier defence put forth by the Respondents and the circumstances surrounding the further amendment, the new defence introduced by the further amendment is not designed to introduce a completely new defense (sic) and over reach the Appellants?” (Grounds 1 and 2).

Learned Appellants’ counsel proceeded in his brief to canvass this sole issue at pages 4 – 11 of the Appellants’ brief of argument. Respondents filed a joint Respondents’ Brief of argument filed or deemed filed on 18/3/2020 wherein the Respondents raised just one (1) issue from the two (2) grounds of appeal for determination as at page 5 of the brief thus:
“Whether the learned trial judge exercised his discretion judicially and judiciously when he granted the defendants’/Respondents’ Motion for amendment of their Amended

Statement of defence?”

Legal arguments or submissions on the sole issue for the Respondents are contained at pages 5-12 of the Respondents brief of argument. There is a Reply brief of argument filed on behalf of the Appellants on the 10th June, 2020 but deemed as field on the 17th June, 2020. The same is an attempt to respond to new points raised in the Respondents’ Brief of argument.

The two (2) sets of issues referred to above, no doubt, are directed on the question whether or not the High Court righty granted the application of the defendants seeking to further amend the amended statement of defence. The Appellants while conceding to the fact that amendments can be made to existing pleadings in the course of trial, it is argued for them that the circumstances under which the defendants/Respondents brought their application for amendment was meant or intended to hit the Appellants below the belt. That the said application fell foul from the accepted principles governing amendments of processes of Court, and in particular, pleadings. We were referred by the Appellants, to a number of decided cases on factors which the Court will

consider in the grant or refusal of an application for amendment, including the decisions in:
1. Akaninwo v. Nsirim (2008) ALL FWLR (Pt. 410) 610, 656;
2. Compagnie Generalle De Geophisique (Nig) Ltd v. Idorenyin (2015) ALL FWLR (Pt. 804) 2093, 2103;
3. Sanni v. Abdul-Salam (2010) ALL FWLR (Pt. 528) 966, 988 (CA);
4. Aina v. Jinadu (1992) 4 NWLR (Pt. 223) 91, 105;
5. Are v. Saliu (2006) ALL FWLR (Pt. 327) 574, 597;
6. Eke v. Akpu (2010) ALL FWLR (Pt. 510) 640, 657, (CA).

It was submitted that the Respondent acted malafide in their quest to further amend their defence when they presented reasons for seeking to further amend their defence but deviated from those reasons to introduce a completely new defence, changing its character. That the Respondents brought into their case, facts which are not only diametrically different from the ones relied upon by their previous defence but facts which were not in existence at the commencement of the case. Learned Appellant’s counsel in his brief referred us to the main claim of the Appellants as plaintiff to submit that the claim is that the property in dispute was founded by

their forefathers who settled there and that the property has been in possession of their family which they had developed and used as palace and eventually leased to the Respondents.

In reference to the amended statement of defence it was argued that the Respondents pleaded facts to show that the property in dispute was founded by a blind leper who lived in the palace and developed it as a hut.

After the Ruling granting a further amendment, the defendants/Respondents were alleged to introduce facts opposed to what was previously relied on when they now aver that the property was founded by one of the progenitors of Mugwap Clan. That the Respondents further raised the issue of a tradition which prohibits alienation of lands and the issue of their exclusive right to possession and use of the Monogamy trees found around the palace. We were urged to hold that the nature of the amendment sought was not in conformity with the reasons or purpose deposed to by the Respondents in their affidavit in support of the application for further amendment at paragraphs (h)-(i). We were urged to hold that the Respondents did not act in good faith but acted Malafide

with intent to overreach the Appellants.

The Respondents on their part, arguing per contra have contended that the application seeking as it were, to further amend their amended statement of defence was borne out of their desire to bring out the real issues or questions in controversy for a just determination of all the rights that accrue to the parties, which right it is argued, cannot be taken away. On this point he cited the decision in Honey Crown Products Ltd v. Shell Electric Manufacturing (2013) LPELR – 20077 (CA). The grant of an amendment to pleadings, it is argued, is discretionary hence the Court below rightly granted the application in the circumstance of the case for the purpose of submitting the real issues at the trial for determination and to correct certain errors or mistakes. He noted that the Court below was guided by the principle enunciated inOjah v. Ogboni (1976) 4 SC (Reprint) 84 Or (1976) 10 NSCC 244, 247 which quoted with approval, the dictum of Bowen L. J. in Crooper v. Smith (1884) 26 Ch.D 700, 710.

Learned Respondents’ counsel therefore debunked the suggestion that their application to

further amend their pleadings only put forward a new defence that was completely different from what was originally put forward. In reference to paragraphs 8, 10, 13 and 14 of the statement of claim, he argued that those paragraphs of the Statement of Claim were denied by the Respondents at their paragraphs 5, 6, 13 and 14 of the initial Statement of Defence and at paragraphs 4, 5, 7 and 8 of the amended statement of defence in that the defence of the Respondents has always been that the Appellants do not own the property in dispute neither are they entitled to the palace as their personal property. To this extant, the argument that the Respondents seek to introduce a new defence vide the further amended Statement of Defence was misconceived as what the Respondents sought to do vide their Motion on Notice of the 17th June, 2014 were consistent with what had been the defence of the Respondents from the commencement of the suit. It is argued that the Respondents only sought to bring in more facts to further buttress their averments that the property in dispute does not belong to the Appellants and this it is argued, did not translate to setting

up new defence. In reference to the Motion on Notice of the 17th June, 2014, it was argued that the Appellants did not file a counter-affidavit to challenge the facts necessitating the application as contained in the affidavit in support hence the Appellants are deemed to have accepted those facts in the affidavit in support and to that end they have failed to establish bad faith on the side of the Respondents who seek to further amend their pleadings.

It further argued that only a written address was filed by the Appellants in opposition to the Motion on Notice before the Court below. We were urged to resolve the sole issue in contention in favour of the Respondents and dismiss this appeal.

From the submission made by counsel on both sides, there appears to be a consensus between them that amendments can be made generally in deserving cases but the duo parted ways on the question whether or not the Court below was properly guided by the established principles when it granted leave to the Respondents to further amend their amended statement of defence in the manner it did.
For the avoidance of doubt a restatement of those established

principles will serve as a guide in addressing the issue on hand.
First, an application for amendment to correct a mistake or slip in the proceedings and designed to meet the end of justice shall be granted no matter at what stage in the proceedings the application was made. See: Ibe v. Onuorah (1988) 7 NWLR (Pt. 558) 383, 393.
Secondly, an application by a defendant to amend this pleadings can be granted even after the close of Plaintiffs’ case if the Plaintiff will not suffer any prejudice by such an amendment. See:Okolo v. Nwamu (1973) 2 SC 59.
Thirdly, an application to amend pleadings will not be granted which if granted will unduly delay hearing of the suit or unfairly prejudice either party to the suit. See: Alsthom S. A. v. Saraki (2000) 14 NWLR (Pt. 687) 415.
Fourthly, an application to amend will not be granted if the applicant is acting mala fide (in bad faith) or if it will cause injustice to the Respondent or cause him some injuries that cannot be compensated by cost or otherwise. See: Ojah v. Ogboni (1976) 4 SC 69.
Fifthly, when evidence in a case has been concluded, application to amend at

that stage will not be granted except an amendment seeking to reflect on evidence already before the Court. See: Imonikhe v. Attorney General, Bendel State(1992) 3 SCNJ (Pt. 1) 197, 207; Anakwe v. Oladeji (2007) LPELR-3837 (CA).
Sixthly, amendment purely for the purpose of determining the real issue(s) in controversy between parties ought to be granted at any stage provided:
(i) The applicant is not acting mala fide or trying to overreach the other party. See: World Gate Ltd v. Senbajo (2000) 4 NWLR (Pt. 654) 681-682; Ogidi v. Egba (1999) 10 NWLR (Pt. 621) 42.
Seventhly, where an applicant is acting mala fide, his application to amend will be refused. Similarly, where the amendment sought will change the character or nature of the case, and consequently result to injustice, such will be refused. See: Are v. Saliu (2006) ALL FWLR (Pt. 327) 574, 597, Eke v. Akpu (2010) ALL FWLR (Pt. 510) 640, 657.

This now leads me to the Motion on Notice seeking to further amend Respondent’s Statement of defence at the Court below. It is supported by an affidavit of 5 paragraphs as at pages 114-130 of the record of appeal. Although no counter-affidavit

was filed against the said application, the Appellants nonetheless at the Court below filed a written address and tagged same as “Reply on points of law to Motion for amendment dated 17th June, 2014” wherein the Appellants as Respondents at that Court, raised two (2) issues, one of which is whether the application to further amend did not completely present a new defence outside or different from the one put forward initially. The other issue is whether the application if granted will not overreach the Appellants (as plaintiffs) See: pages 191-195 of the record of appeal.
After taking counsel’s argument on the application, the trial Court or the Court below granted Respondents’ request to further amend their Statement of Defence without first resolving the two issues raised by the Appellants in the written address submitted to it, but Courts are bound to consider and resolve all issues addressed in the Appellants’ written address in opposition. Issues addressed in the written address being of law hence, there was no obligation on their part to file a counter-affidavit to refute the claims contained in the supporting

affidavit to the application. The fact of Appellants’ failure to file any counter-affidavit as claimed does not necessarily mean that the Appellants had conceded to the application in the face of a written address on points of law in opposition.

In the further amended statement of defence granted with the leave of the Court below, are the averments at paragraphs 14, 15, 16, 17, 18, 19 and 20 among others of the amended statement of defence wherein the Respondents, in reference to the property in dispute averred that same was founded by one of the progenitors of Mugwap clan, one whose descendants gave the property to Appellants’ forefathers. The further amended statement of defence also raised the issue of Kagoro tradition which prohibits permanent alienation of lands and also the issue of Mahogamy trees and other trees which, it is alleged, the Respondents have exclusive right of possession. All these averments or defences, I must say, are neither contained in the initial statement of defence of the Respondents nor the amended statement of defence. See pages 28-31 and pages 41-43 of the record of appeal. Thus, they are new issues which to my

mind, changed the nature and character of defence case which if allowed to stand will prejudice the Appellants, who have at that point closed their case.
The reason the Respondents advanced in support of their application to further amend their pleadings was to “bring out the real controversy between the parties” and to correct some typographical errors in their amended statement of defence. See the affidavit in support of Motion, particularly paragraph 4(h)(i) at pages 116-117 of the record.
As mentioned before, an amendment purely for the purpose of determining the real issues in controversy will not be refused but an amendment made with a view to completely change the line of defence case, as in this instant case, is made in bad faith. Such an application for amendment ought to be refused. See Akaninwo v. Nsirim (2008) ALL FWLR (pt. 410) 610, 657, 658.
In the case of Compagnie Generalle DE GEOPHYSIQUE Nig Ltd v. Idorenyin (2015) ALL FWLR (Pt. 804) 2093, 2103, the Apex Court held:
“As a general rule, an amendment is seldom refused by the Court, however, where taking into consideration the prevailing circumstances of a

particular case, the Court is of the view that the proposed amendment is fraudulent, intended to overreach or in bad faith would cause avoidable delay, take the plaintiff by surprise or introduce new matters and generally work injustice against one of the parties in the case. In short, when the trial Court comes to the conclusion that the application for amendment would occasion one of the negative consequences mentioned above as in the instant case where the trial Court came to the conclusion that to allow the amendment sought at the stage it was applied for, will be tantamount to overreach the plaintiff/Respondent and work injustice against him which all the authorities cited by both sides are opposed to.”
The grant and refusal of grant of an application for amendment is hinged on proper consideration and application of the rules and precepts which govern such procedures hence the refusal of grant of application does not necessarily translate to denial of fair hearing. It is on this note I am inclined to resolve the sole issue for determination in favour of the Appellants hence the appeal is allowed.

The ruling granting the Respondents leave to

further amend their statement of defence is set aside and in its place is entered this judgment, dismissing the application at the Court below, seeking as it were, to further amend the amended statement of defence.
That is the Order and Judgment.

OBIETONEARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother SAIDU TANKO HUSAINI, JCA and I agree with the reasoning and conclusions of my lord in allowing the appeal. I do not have anything useful to add.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother SAIDU TANKO HUSAINI JCA, I also allow this appeal.

One of the factors to consider in an application for amendment is the time when the amendment is sought. See AKANINWO V. NSIRIM (2008) 9 NWLR part 1093 page 439 at 471 — 472 para H —A per Tobi JSC.
In this case the Appellants had closed their case when the new issues were brought in by the amendment. This clearly overreached the Appellants, rendering the grant of the amendment a wrongful exercise of the lower Court’s discretion.

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I accordingly hold this appeal meritorious and also allow it. The decision of the lower Court granting the further amendment of the Statement of Defence, is hereby set aside.

Appearances:

Abdullahi Bello, Esq. For Appellant(s)

M. Samson, Esq. For Respondent(s)