INYANG & ORS v. INYANG & ORS
(2022)LCN/16875(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Friday, March 18, 2022
CA/C/401/2018
Before Our Lordships:
Raphael Chikwe Agbo Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Between
1. ELDER MATTHEW ASUQUO INYANG 2. MRS. FLORENCE INYANG OBRI 3. MRS. IMELDA ETIM SAMUEL APPELANT(S)
And
1. ORBON PIUS AWOR INYANG 2. ORBON ALEX AWOR ANAMAN 3. MS HELEN FRANCIS 4. ABANG ANAMAN 5. JOSEPH INYANG EWON 6. LAWRENCE EKPE NKWOI RESPONDENT(S)
RATIO
THE ESSENCE OF GRANTING AN APPLICATION FOR AMENDMENT TO A PARTY
An amendment will ordinarily be granted to a party to enable him present his case and bring to the fore the real issues in controversy between the parties unless the application for amendment is brought mala fide. In YUSUF V. MOBIL OIL (NIGERIA) PLC (2019) 13 NWLR (prt.1689) 374 at 393, the Supreme Court opined that although Courts of law are always willing to grant an amendment in order to aid the justice of a case, an amendment will not be granted if it is to overreach and/or prejudice the other party. Thus, the essence of amendment is generally to prevent the justice of the case from being defeated or delayed by formal slips, which may arise from inadvertence of counsel.
The bone of contention here is that the appellants having closed their case, the amendment granted to the respondents was capable of overreaching them. In AKANINWO & ORS V. NSIRIM & ORS(2008) LPELR – 321 (SC), it was held per MOHAMMED, JSC at pp22 paras B that the fact that the defendants’ application was made after the cross-examination of the second witness to the plaintiff was not enough reason to refuse the application because such application by the defendant may be granted even after the close of the case of the plaintiffs. It was similarly held in EZEAKABEKWE V. EMENIKE (1998) 9 – 10 SC 80 at 95 that even at the stage of appeal in the Supreme Court the plaintiff could still have moved the Court to amend his pleadings and same would be granted if it was satisfied that to do so would bring the pleadings in line with the evidence or would do substantial justice among the parties. PER SHUAIBU, J.C.A.
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): In the High Court of Cross River State, sitting in the Akamkpa Judicial Division, the claimants who are now the appellants instituted an action jointly and severally against the respondents, claiming as follows:-
(a) A declaration that the claimants are entitled to the customary right of occupancy in respect of the land lying and situate in Ekong Anaku village bounded in the north by Government Primary School Ekong Anaku, West by the farmlands of Bokum Eto, late Orbon Inyang Anor, Motor and late Akwai Offiong Ewon. East by farmlands of Bokom family and Orbon Inyang Inyang Akon and in the south by Ikot Okpo Stream.
(b) An order of perpetual injunction restraining the defendants by themselves, agents, assigns or servants from further trespass upon or dealing with the claimants’ land in any manner whatsoever without the consent of the claimants.
(c) An order for account and return of monies collected over the wrongful lease of claimants’ land by the defendants.
(d) N5 Million damages for trespass.
Pleadings were ordered in the suit and were duly settled, filed and exchanged. The matter went to trial and upon the close of the claimants’ case, the defendants filed a motion on 11/6/2018 seeking leave to amend their joint statement of defence which was vehemently opposed by the claimants.
After taking arguments from the respective parties on the said motion and in a reserved ruling delivered on 23/7/2018, learned trial judge granted leave to the defendants to amend their pleadings on pages 218 – 279 of the record thus:
“From the above analysis, the amendments sought are not during pre-trial but during the trial and not up to two times. Finally, the defendants have not closed their case. In my humble view and applying the provisions of Order 26 (1) of Rules, the Applicants never violated the provisions of our Rules and I hold that the application is proper before the Court.”
He continued:
“On the instruction of new facts, it seems to me that the only issue before the Court is the introduction of counter-claim which from the respondents counter-claim to the defence is an amendment and I have gone through the case of the respondents, it was only one witness that testified and they closed their case. The respondents still has an opportunity to defend the counter-claim and as a result, this application is granted to enable the parties consider all issues and document in this case, though the respondents will have to rearrange themselves and on that note, the applicants shall settle the cost of this process which I assess at N10,000.00 (Ten Thousand Naira) payable to the respondents.”
It is against the said Ruling that the appellants appealed to this Court through a notice of appeal filed on 31/7/2018 containing a lone ground. The lone ground of appeal, shorn of its particulars is reproduced hereunder as follows:-
“The learned trial judge erred in law where he relied on Order 26 (1) of the High Court of Cross-River State (Civil Procedure) Rules 2008 granted an amendment of the joint statement of defence when the claimants had before then closed their case.”
On 9th February, 2022 when this appeal was heard, learned counsel for the appellants, Emmanuel David Esq., identified and adopted their brief of argument filed on 12/11/2018 together with appellants’ reply brief of 1/3/2019 wherein a sole issue was formulated from the lone ground of appeal for determination of this appeal. The lone issue reads:
Whether by reliance on Order 26 Rule 1 of the High Court of Cross River State (Civil Procedure) Rules 2008 it was proper for the trial Court to grant leave to amend the respondents’ joint statement of defence.
The respondents’ brief which was settled by Eno Edet, Esq., filed on 4/2/2019, learned counsel adopt the sole issue distilled by the appellants. In addition, he raised a preliminary objection to the competence of the appeal on the following grounds:-
1. The record of appeal served on the respondents’ counsel is incompetent as it was not transmitted to this Honourable Court before it was served on counsel on the 5/10/2018.
2. The notice of appeal upon which this appeal is predicated was not and has never been served on the respondents.
Arguing the preliminary objection, counsel relied on Order 8 Rule 10 (1) and (3) of the Court of Appeal Rules 2016 to submit that the record of appeal not having been transmitted to this honourable Court before service of same is to that extent incompetent as it fails to the mandatory requirement of the rules of this Court. He referred to EKPEMUPOLO V. EDREMODA (2015) ALL FWLR (prt.805) 167 at 180 to the effect that where the appellants failed to discharge the onus of transmitting the record of appeal to the Court of Appeal, their appeal ought to be struck out.
He submitted further that the service of notice of appeal is a necessary requirement, a sine qua non to the competence of an appeal. Where the appellants as in this case failed to serve notice of appeal, the Court of Appeal will not have jurisdiction to hear the appeal. He referred to ONYEJEKWE V. ACHEBE (2009) ALL FWLR (prt.495) 1810 at 1816 – 1817 and NWAJIOBI V. ABIA SOUTH LOCAL GOVERNMENT (2009) ALL FWLR (prt.469) 518 at 530 to contend that failure to serve Court process on a party in a case, where service is required, is a fundamental flaw which tantamount to rendering the entire proceeding null and void and of no effect whatsoever.
In response, the appellants submit that compilation and transmission of records is the business of the Court’s registry and assuming but not conceding the fact that there was an error in compiling and transmission of the record, parties cannot be punished for the error of officials of the Court relying on the authority in the case of ADELEKE V. OYO STATE HOUSE OF ASSEMBLY (NO.1) (2006) 52 WRN 173.
The appellants’ contention regarding service of the notice of appeal is that except the affidavit of service of originating processes of the lower Court all other processes enjoyed the service from counsel to counsel and thus, the respondents’ counsel was served with the notice of appeal on 31/7/2018. Furthermore, there was service of notice of appeal from appellants’ counsel to the respondents’ counsel vide a motion on notice for stay of proceedings wherein same was annexed as Exhibit B. Counsel submit that by virtue of Order 2 Rule 1 (a) of the Court of Appeal Rules 2016, the fact that the notice of appeal was communicated to the respondents renders the preliminary objection otiose.
The provisions of Order 8 Rule 10 (1) of the Court of Appeal Rules 2016 which is also replicated in Order 10 Rule 1 (a) of the Court of Appeal Rule, 2021, the record of appeal shall be transmitted together with a certificate of service of the notice of appeal. Sub-rule (3) thereof prescribes that the registrar of the Court below or the appellant as the case may be, shall within seven (7 days) of the transmission of the record to the Court, cause to be served on all parties mentioned in the notice of appeal, a notice that the record has been transmitted to the registrar of the Court who shall in due course enter the appeal in the cause list.
The first arm of the respondents’ complaint is that the record of appeal served on them though compiled but was not transmitted to this Court as there was no stamp to show that it was so transmitted. This argument is to say the least, unsustainable because the record of this Court clearly shows that the record of appeal in this appeal was transmitted on 5/10/2018 and the appeal number boldly written as CA/C/401/2018.
It is elementary that the records of appeal before this Court and its contents are binding on the parties, counsel and the Court. Therefore, neither the parties nor the counsel or an appellate Court can read into the record what is not there and they cannot also read out of the record what is there. Thus, they must read the record in the exact content and read it – OGUNTAYO V. ADELAJA (2009) 15 NWLR (prt.1163) 150 and MUTAZU V. MAZOJI (2014) LPELR – 23071 (CA).
The second arm of the objection pertains service of the notice of appeal, which counsel to the respondents alleges that same was neither served on the respondents nor their counsel. The contention of the respondents here is that the compiled record of appeal has to be transmitted and received by the registrar of this Court who shall in turn cause the appeal to be entered before the service of the record. And that there is no evidence of service of the record of appeal on the respondents. The appellants’ contention on the other hand is that service of all processes are in line with their implied agreement, on counsel to counsel and thus the notice of appeal was served on the respondents through their counsel.
It is trite practice that, where service of process is effected, through the chambers of counsel of a party to a suit, where counsel has entered appearance for the party in Court, then the service is deemed to be made personally on the party. In other words, the step taken in furtherance to such service is deemed to have validated such service.
In the instant case, the respondents having filed their brief of argument, cannot claim that they have not seen the said record of appeal. At any rate, Order 2 of the Rules of this Court which stipulates personal service of notice of appeal also provides that if the Court is satisfied that the notice of appeal has infact been communicated to the respondent, no objection to the hearing of the appeal shall lie on the ground that the notice of appeal was not served personally.
In the result, the respondents’ preliminary objection is devoid of any merit and it is hereby overruled.
Having overruled the preliminary objection, I will now proceed to consider the arguments of counsel on the main appeal.
Proffering argument on his sole issue, learned counsel for the appellants submit that an application for amendment of pleadings will be refused where it is established that the adverse party will be overreached by the amendment sought by the applicant. Counsel contend that a party will be overreached where as in the present case, the amendment sought is at the stage when the appellants had already closed their case or where the adverse party will be required to recall his witness. He referred to OJAH V. OGBONI (1996) 6 NWLR (prt.454) 272 and EAGLE TRANSPORT COMPANY LTD V. ANYIA (2017) 27 WRN 60.
On their part, the respondents contend that the amendment sought by them was not overreaching to the appellants because they have not exhausted calling their witnesses. Thus, the appellants have all the opportunity to make a reply and defence to the amended joint statement of defence as no new issue was raised in the said joint statement of defence. In aid, counsel cited and relied on Order 26 Rule 1 of the High Court (Civil Procedure) Rules of Cross River State, 2008 and the case of UBA V. LAWAL (2012)6 NWLR (prt.1295) 186 at 196 to the effect that where the intention for amended is to clarify the issues in controversy between the parties or to remove any possible injustice in the case, an amendment should be granted.
An amendment will ordinarily be granted to a party to enable him present his case and bring to the fore the real issues in controversy between the parties unless the application for amendment is brought mala fide. In YUSUF V. MOBIL OIL (NIGERIA) PLC (2019) 13 NWLR (prt.1689) 374 at 393, the Supreme Court opined that although Courts of law are always willing to grant an amendment in order to aid the justice of a case, an amendment will not be granted if it is to overreach and/or prejudice the other party. Thus, the essence of amendment is generally to prevent the justice of the case from being defeated or delayed by formal slips, which may arise from inadvertence of counsel.
The bone of contention here is that the appellants having closed their case, the amendment granted to the respondents was capable of overreaching them. In AKANINWO & ORS V. NSIRIM & ORS(2008) LPELR – 321 (SC), it was held per MOHAMMED, JSC at pp22 paras B that the fact that the defendants’ application was made after the cross-examination of the second witness to the plaintiff was not enough reason to refuse the application because such application by the defendant may be granted even after the close of the case of the plaintiffs. It was similarly held in EZEAKABEKWE V. EMENIKE (1998) 9 – 10 SC 80 at 95 that even at the stage of appeal in the Supreme Court the plaintiff could still have moved the Court to amend his pleadings and same would be granted if it was satisfied that to do so would bring the pleadings in line with the evidence or would do substantial justice among the parties.
By virtue of Order 26 Rule 1 of the extant High Court (Civil Procedure) Rules of Cross River State, the Court may permit a party to amend his originating process and pleadings at any time before close of pre-trial conference and not more than twice during the trial but before closing his case.
In the instant case, it was the defendants (now respondents) that amended their joint statement of defence before opening their defence and the reason behind the amendment was to incorporate a counter-claim in their joint statement of defence. It was nowhere shown that incorporating a counter-claim to the respondents’ joint statement of defence was to outwit the appellants nor designed to defeat the object the appellants’ case. That being the case, I cannot but endorse the reasoning of the learned trial judge that since the appellants still have the opportunity to defend the counter-claim, the amendment was not meant to overreach and/or prejudice the appellants.
From all I have said above, it is crystal clear that there is no merit in this appeal. It is hereby dismissed with cost which I assessed at N60,000.00 in favour of the respondents and against the appellants.
RAPHAEL CHIKWE AGBO, J.C.A.: I was privileged to read in advance the lead judgment of my learned brother Shuaibu, JCA and I agree with him that there is complete want of merit in this appeal and that it should be dismissed.
BALKISU BELLO ALIYU, J.C.A.: I was privileged to read in draft form the judgment just delivered by my learned brother, M. L. Shuaibu, JCA. I am at one with him that the preliminary objection has no merit and I join him to also overrule it.
With regards to the main appeal, the Court’s discretion to grant leave to amend pleadings cannot be fettered because it is better to resolve all the issues in controversies in one judgment than piece meal. All that the law requires is that after amendment, the opponent is also given an opportunity to also amend his processes so as to answer to any new issue raised in the amendment.
In this case, the learned trial Judge exercised his discretion correctly in granting the application to amend and nothing has been placed before us to justify our interference with the decision reached.
I therefore agree with the reasoning and conclusion reached in the lead judgment that this appeal lacks merit. I too dismiss it.
I affirm the ruling of the High Court of Cross River State, sitting at Akamkpa, delivered on the 31st July, 2018 in Suit No: HK/17/2017.
Appearances:
Emmanuel David, Esq. For Appellant(s)
O. A. Ochi, Esq. For Respondent(s)
