H.I. IYAMABOR v. MR. MAVIS OMORUYI
(2010)LCN/4102(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 8th day of December, 2010
CA/B/242/2009
RATIO
AMENDMENT OF PLEADINGS: CONDITION UNDER WHICH AN APPLICATION FOR AMENDMENT OF PLEADINGS WILL BE GRANTED
It is settled beyond per adventure, as it is the general rule that, an amendment of proceedings including pleadings will be granted if, it is for the purpose of determining in the existing suit the real question(s) controversy between the parties. The law is indeed very trite that, amendment of pleadings should be allowed at any stage of the proceedings, even on appeal unless it will entail injustice to the other side responding to the application. The application should also be granted unless the applicant is acting mala fide or by his blunder, the applicant has done some injury to the respondent which cannot be compensated in terms of costs or otherwise. See the cases of: (1) Tildesly v. Harper (1878) 10 Ch. D 393 at 396: (2) Cropper v. Smith (1884) 26 Ch. D 700 at 710; (3) Shoe Machinerv Co. v. Cutlan (1896) 1 Ch. 108 at 112 and (4) Amadi v. Thomas Aplin & Co. Ltd. (1972) 1 All NLR (Pt.1) 409. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
AMENDMENT OF PLEADINGS: FACTORS WHICH THE COURTS MUST TAKE INTO CONSIDERATION WHEN FACED WITH AN APPLICATION FOR AMENDMENT OF PLEADINGS
The Supreme Court has laid down the factors which the courts must take into consideration in an application for amendment of pleadings. Therefore, an amendment of existing pleadings will readily be granted upon the court satisfying itself that: 1. By the amendment, the other party will not be overreached; 2. The amendment will not occasion an injustice to the other party which cannot be compensated by costs; 3. The amendment will not have the effect of changing the case of the plaintiffs cause of action and 4. The amendment is not sought in bad faith. See the cases of: (1) Oguntimeyin v. Gubere & Anor. (1964) 1 All NLR p. 176 at 180; (2) Chief Adedapo Adekeye & Anor. v. Chief O.B. Akin-Olugbade (1987) 6 SC p. 268 at pgs. 280 – 281 and (3) Chief E.I. Akaninwo & Ors. v. Chief O.N. Nsirim & Ors. (2008) 9 NWLR (Pt. 1093) p.439. In the majority judgment of the apex court in the case of: Akaninwo v. Nsirim supra, the court’s position per Eso JSC, in the earlier case of Adekeye v. Akin-Oluebade supra, was restated by Mohammed, J.S.C, that: The aim of an amendment is usually to prevent the manifest justice of the cause from being defeated or delayed by formal slips which arise from the inadvertence of counsel. It will certainly be wrong to visit the advertence or mistake of counsel on the litigant. The courts have therefore through the years taken a stand that however negligent or careless may have been the slip, however late the proposed amendment, it ought to be allowed, if this can be done without injustice to the other side, for a step taken to ensure justice cannot at the same time and in the same breath be used to perpetuate an injustice on the opposite party. 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. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
AMENDMENT OF PLEADINGS : WHETHER AN APPLICATION FOR THE AMENDMENT OF PLEADINGS CAN BE ALLOWED AT ANY STAGE OF THE PROCEEDINGS
It will appear that both parties are ad idem, and rightly so, on the legal position that, an amendment of pleadings can be allowed at any stage of proceedings. In the case of: Laguro v. Toku (1992) 2 NWLR (Pt. 223) p. 278 Akpata, J.S.C, (of blessed memory) made the following pronouncement on the state of the law that: Justice demands that in order to determine the real matter in controversy pleadings may be amended at any stage of the proceedings, even in the Court of Appeal or this court (Supreme Court) to bring them in line with the evidence already adduced; provided the amendment is not intended to overreach and the other party is not taken by surprise and the claim or defence of the said other party would not have been different had the amendment been averred when the pleadings were first filed. Equally trite is the further position of the Appellant that, conversely, such an amendment can also be refused at any stage of proceedings and I agree that, a refusal will be inevitable, especially if it is designed to overreach or outmanoeuvre the adverse party with the aim of wining the victory at all costs. See the case of: Aina v. Jinadu (1992) 4 NWLR (Pt. 223) p. 91 at p. 105. wherein. Niki Tobi, J.C.A. (As he then was) said thus: A court of equity should never allow a cunning or crafty application to lord over an amendment sought mala fide, at the detriment of the adverse party. In order to ensure that justice is done to the parties, the court should open its eyes wide and with a meticulous and searching mind comb through the entire application. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
WHETHER THE GRANT OF LEAVE TO AMEND PLEADINGS IS AT THE DISCRETION OF THE COURT TO WHICH THE APPLICATION IS MADE
The Respondent’s position is quite trite as well, that, the grant of leave to amend pleadings is at the discretion of the court to which the application is made and just like other discretionary powers of court, the exercise of the discretion must be shown to have been judicial and judicious having regard to the presented facts and circumstances of each particular case, the main effect of which is, to do substantial justice. See the cases of: (1) Gen. & Aviation Services Ltd. v. Captain Paul M. Thahal (2004) 10 NWLR (pt.880) p.50 and (2) Ebe v. C.O.P. (2008) 4 NWLR (Pt. 1076) p. 189. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
AN APPLICATION FOR AMENDMENT OF PLEADING IS A RIGHT OF THE PARTIES
An application for amendment is a right of the parties to enable them present their case in the way it……appears best to them once it does not occasion injustice to the other party. See the following cases: U.B.N. Ltd. v. Dafiaga (2000) 1 NWLR (Pt. 640) at 175; Stanley Aigbe & Anor. v. Lucky Erhabor & Anor. (1998) 7 NWLR (Pt. 557) Page 255. The above stated position of fact was uncontroverted by the Appellant. See the cases of: (1) Buhari & Ors. V. Obasanjo & Ors. (2003) 17 NWLR (Pt.850) p.587; (2) Egbuna v. Egbuna (1989) 2 NWLR (Pt.106) pt.773; (3) Agu v. NICON Ins. Plc. (2000) 11 NWLR (pt.677) p. 187 and (4) United Bank of Kuwait Plc. v. Rhodes (2000) 2 NWLR (Pt.645) p.457. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
Between
H.I. IYAMABOR Appellant(s)
AND
MR. MAVIS OMORUYI
(Suing by his lawful Attorney Elfreda Omoruyi) Respondent(s)
OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivered the Leading Judgment): This is an appeal against the ruling of the High court of Edo State (hereinafter called the lower court) Holden in Benin city, delivered by E.F. Ikponmwen J., on the 14th day of April, 2008.
At the lower court, the Respondent herein is the plaintiff, while the Appellant is the defendant. Sometime in March, 2006, the Respondent claimed against the Appellant as per his writ of Summons and statement of Claim as follows:
1. A declaration that the plaintiff is the rightful/bonafide owner and the person legally entitled to apply and be granted a Statutory Right of Occupancy in respect of all piece/parcel of land measuring 107.32 feet by 200 feet situate at Ward 36A Ugbor Village Benin City bounded by Ward beacons Nos. 1212A, 1213A,1214A and 1215A covered by an application dated 10th January, 1972 for the said plot/land by one E.A. Igbinoba.
2. A Declaration that the act of the Defendant in entering/interfering with any form of building and erecting or selling or transfer of the whole or part of the aforesaid land of the Plaintiff by him, his servants, agents, his representatives or his assigns or privies as described in relief one (1) above therein without the plaintiffs consent or authority is trespassory; unlawful and thus actionable.
3. A declaration that the act of the Defendant, his agents, servants, privies and/or associates of uttering, destructing damaging and removing the survey and ward beacons, demarcations and marks of the aforesaid land of the plaintiff is malicious, vexatious and actionable.
4. A declaration that the act of the Defendant, his agents, servants, privies and/or associates destroying, uprooting, removing economic crops belonging to the plaintiff in the aforesaid parcel or piece of land is malicious, vexatious and actionable.
5. An order of court commanding the Defendant, his servants, his agents and/or privies to give up possession to the plaintiff of the parcel/piece of land measuring 107.32 feet by 200 feet described in relief (one) above which parcel or piece of land belongs to the plaintiff.
6. The Defendant or his agent or any person(s) who on his behalf removed and used the Plaintiffs 2000 cement blocks is illegal and criminal.
7. A perpetual injunction restraining the Defendant, his agents, his servants, his associates, privies and/or any other person from further act of trespass on the aforesaid land of the plaintiff.
The sum of N5,000,000.00 (Five Million Naira) only being damages.
Pleadings were exchanged by the parties. However, by his motion on notice dated and filed on 10th April, 2007, the Respondent was granted leave by the lower court to take his surveyor to the property in dispute to carry our litigation survey thereon, see pages 15 to 18 of the record of appeal. After that exercise the Respondent yet approached the lower court vide his motion on notice dated and filed on the 22nd November, 2007 for leave to amend his existing Writ of Summons and Statement of Claim.
In the said motion, the Respondent prayed for the following orders viz:
(a) An order granting leave to the Plaintiff/Applicant to amend his Statement of Claim in the manner underlined in red in the proposed amended Statement of Claim attached and marked Exhibit B and to rely on the litigation survey plan attached to the Amended Statement of Claim and marked Exhibit C.
(b) An order granting leave to the Plaintiff/Applicant to amend the Writ of Summons in the manner underlined in red in the proposed Amended Writ of Summons attached and marked Exhibit A.
(c) An order deeming the said proposed Amended Statement of Claim together with the Litigation Survey plan and amended Writ of Summons as properly filed and served, the appropriate filing fees having been paid.
(d) AND for such further order or other orders as this court may deem fit to make in the circumstance.
The said application was opposed by the Appellant, see pages 19 to 28 and 31 to 44 of the record of appeal.
After hearing the arguments of learned counsel for parties for and against the application, the lower court in its said ruling granted the said application and held inter alia as follows:
I have examined thoroughly the application before this Court and the counter affidavit thereto. The whole counter affidavit seeks to discredit the claim of the Plaintiff/Applicant and I think am of the view that at this stage, it is rather premature. The Court can not stop a claimant from making whatever claims he seeks so long it is not an abuse of Courts process and he has the requisite locus standi. Pleadings and writ of summons can be amended at any stage before judgment is delivered in order to resolve the issue in controversy between the parties.
The purpose of amendment is to eliminate error and defect in the proceedings and to resolve the issue in controversy. The plaintiffs claim that there were some errors arising from the litigation survey carried out and the defendant’s position that these are no errors can be shown by evidence. I do not agree that the plaintiff should be stopped from carrying out the amendment sought since evidence is yet to be led. In the circumstance the objection taken is refused and it is dismissed. The amendment sought is granted.
The Defendant/Respondent shall have 21 days to make consequential amendment to his pleading.
The endorsement on the Amended writ of Summons and Statement of Claim reads thus:
(a) A declaration that the plaintiff is the owner and person entitled to possession and grant of a Certificate of Occupancy in respect of all that piece or parcel of land measuring 150ft x 150ft situate at Ward 36A. Ugbor Village, Benin City which piece or parcel of land forms part of a larger parcel of land measuring 300ft x 400ft and bounded by beacon Nos. 1212A, 1213A, 1214A and 1215A originally owned by Mr. E.A. Igbinoba (now late) as delineated in Litigation survey plan No. KS/ED/L/05/2007, dated 28/06/2007.
(b) A declaration that the entry upon and erection of a building and continuous use and occupation of the said building plot by the Defendant without the consent and authority of the plaintiff amount to trespass.
(c) A perpetual injunction retraining the Defendant, his heirs, servants, agents and or privies from further occupying, using, entering or trespassing on or interfering in any manner whatsoever with the Plaintiff or his successors in title in respect of the parcel of land.
(d) Two Hundred Thousand Naira (N200,000.00) special damages being cost of the 2000 cement blocks converted by the defendant which blocks costs N100 each as at 2005.
(e) Three Hundred Thousand Naira (N300,000.00) General Damages for the Defendant’s acts of trespass.
See pages 23 to 28 of the record of appeal.
The Appellant is displeased with the ruling and has appealed against same vide his notice and grounds of appeal dated 28th April, 2008, containing six grounds of appeal. The six grounds of appeal with their particulars are contained in pages 53 to 55 of the record of appeal.
In tune with the rules of practice and procedure of this Court, briefs of argument were exchanged by the parties herein and adopted by their respective counsel at the hearing of this appeal. In the brief of argument filed for the Appellant by his learned counsel, which was deemed properly filed and served on the 26th of October, 2009, six issues were identified for the determination of this appeal. These are as follows:
1. Whether the lower court was right in deciding that the fact deposed to in the counter-affidavit was premature?
2. Whether it is only where an application to amend amounts to an abuse of court process and where the applicant lacks locus that it is refused?
3. Whether an amendment to writ summons and statement of claim can refused before evidence is led?
4. Whether the lower court was competent to suo motu make a case for either or both parties?
5. Whether the failure of the lower court to consider the issues raised by the Appellant renders the ruling a nullity?
6. Whether considering the facts deposed to by parties the lower court was right in allowing the respondent to amend the writ of summons and statement of claim by changing the measurement of the land in dispute from 107.32 feet by 200 feet to 150 feet by 150 feet?
On the other part, in the brief of argument filed for the Respondent on 30ft October, 2009, his learned counsel formulated two issues for the determination of this appeal, which are:
1. Whether .the lower court was right in allowing the respondent to amend his Writ of Summons and Statement of claim by changing the measurement of the land in dispute in line with the Litigation Survey Plan?
2. Whether the lower court exercised its discretion judicially and judiciously and whether this appellate court can interfere with this exercise of discretion of the lower court?
To my mind, the crux of this appeal is, whether the lower Court properly exercised its discretion in granting the application of the Respondent to amend his writ of summons and statement of claim in the given circumstances of this matter?
On a cursory look, the issues formulated by the Appellant are an unnecessary proliferation, while those distilled by the Respondent are concise, apt and would suffice for the proper resolution of this simple and straightforward appeal. Therefore, as I am permitted by the rules of practice of this court, I shall adopt the two issues of the Respondent which I have reproduced above, albeit, I shall take them together because they are intertwined. See in this regard the cases of:
(1) Latunde & Anor. v. Bella Lajinfin (1989) 5 SC p.59 and
(2) Oleere (Nige) Ltd. v. v. Dormath Tradin Co. Ltd. (2009) 47 W.R.N. p. 56
I shall now proceed to review the submissions of the learned counsel for both parties regarding the gravamen of this appeal.
The learned counsel for the Appellant’s entire argument is centered, grounded and hinged on the fact that, the dimensions of the parcel of land in contention as stated in the original writ of summons/statement of claim and the Amended writ of Summons/Amended statement of claim of the Respondent, are at variance. That the amendment sought by the Respondent and granted by the lower court, amounts to an introduction of a new cause of action which is completely different from that described in the power of Attorney, exhibit HYI. Mr. P.O. Odiase, learned counsel for the Appellant is of the opinion that the amendment granted to the Respondent will certainly work injustice to the Appellant. He submits that the case being sought by the Respondent is new and inconsistent with exhibit HYI.
According to him, the measurement of the property in dispute is: 107.32 feet by 200 feet as stated in the Power of Attorney, exhibit HYI and the Respondent’s original writ of Summons/statement of claim, as opposed to 150 feet by 150 feet as stated in the Amended writ of Summons/Amended Statement of Claim.
On the principles guiding the court in exercising its discretion one way or the other in allowing a litigant to amend his pleading, he cites and relies on the case of: Okolo v. UBN (1999) 70 LRCN p.2095 at pgs. 2108 – 2110, where it was held that: The court must consider the materiality of the amendment sought. That the court will not allow an inconsistent or useless amendment or grant an amendment where it will create a new suit where none existed.
It is the contention for the Appellant that, this action was instituted by the Respondent who is a donee of the power of Attorney, exhibit HYI, which authority defines and describes the subject-matter of the dispute as measuring 101 .32 feet by 200 feet. That by the said instrument, the donee, Elfreda Omoruyi has express authority in respect of that exact portion of land and not more. He relies on the case of: Abubakar v. Waziri (2008) Vol. 160 LRCN p. 72 at p. 95. The learned counsel agrees with the bit of the holding of the lower court in line with the settled position of the law that, pleadings, may be allowed to be amended by the court at any stage of proceedings. However, his proviso to that position is that, there are laid down justifiable grounds which must be in existence in order for the court to exercise that power in favour of an applicant. That is, the exercise of that power just like any other discretionary power must be exercised judicially and judiciously based upon the presented facts of each case. He rests his submission on the cases of;
(l) Maersk Line v. Addide Investment Ltd. (2002) 98 LRCN p. 1282 at p. 1306:
(2) World Gate Ltd. v. Senbanjo (2000) 4 NWLR (Pt. 654) p. 669 at p. 672 and
(3) Kode v. Yusuf (2001) 84 LRCN p.521 at p.547.
it is his argument that the Respondent failed to justify the variation in the dimension of the property in dispute. Hence, the amendment of the Respondent will overreach and work injustice to the Appellant.
The learned counsel for the Respondent, Mr. T.E. Ogbeide Inama on the other part, submits that, pleadings can be amended at any stage of proceedings before judgment. That basically the purpose of such an amendment must be such that is geared towards eliminating errors and defects in proceedings so as to make way for the proper resolution of the issues that are in controversy in an action. He cites in support of his submission the cases of:
(1) Awure v. Iledu (2007) 52 WRN p.27; (2) Nwike v. Ekwelem (2007) 35 WRN p. 181 and
(3) Eze v. Ene (2007) 11 WRN p. 106.
He further restates the legal principle that, an amendment can be granted to pleadings so long as it is not fraudulent and would not perpetrate injustice, overreach or embarrass the other side. He relies in this wise on the cases of:
(1) Unifam Idu Ltd. v. O.I.N. Ltd. (2007) 15 WRN p. 162:
(2) Nabsons Ltd. v. Mobil Oil Nig. Ltd. (1950) 31 LRCN p.183;
(3) Adekanye v. Grand Services Ltd. (2007) 26 WRN p. 128 and
(4) Igwe v. Kalu (2002) 97 LRCN p. 975.
The learned counsel argues for the Respondent that, the amendment under consideration in this matter is desirable for the purpose of ascertaining the actual dimension of the property in dispute. That when the initial writ of Summons was filed, there was no existing survey plan in respect of the property in dispute. Hence, the Respondent sought and obtained the leave of the lower Court to carry out a survey so as to know the exact size of the property. That the amendment was brought to the fore by the litigation survey. The amendment has to do with only the measurement of the disputed land and not introduced a new claim or changed the cause of action of the Respondent. The land is basically the same, save for the issue of the measurement and as such, the identity of the land in dispute is known to both parties. What is more, at the time the Power of Attorney, exhibit HYI and Deed of Transfer, exhibit HY2 were executed, there was no separate survey plan relating to the specific portion of land that is in dispute. He states that, there is no way the amendment would overreach or be prejudicial to the Appellant. This is because, at this stage of proceedings, the said survey plan is yet to be in evidence and really, pleadings have not closed. In all, he states that the amendment in question is material to the resolution of the Respondent’s cause of action.
It is the further submission for the Respondent that, the power to grant an amendment of a party’s pleading is an absolute discretion conferred on a trial court. This discretion according to law is unfettered and must be exercised judicially and judiciously. An appellate court would not, generally, question the exercise of the discretion of the trial court merely because the appellate court would have exercised this discretion in a different way if it had been in the position of the lower court. However, such discretion would be questioned if as a result of such exercise, injustice is meted out to either of the parties or the trial Judge gave insufficient weight or no weight at all to important considerations. He relies on this position on the case of: Solanke v. Ajibola (1968) All N.L.R. 46. He states further that, another ground where an appellate court would interfere with such a discretion is, where it is shown that the discretion was wrongly exercised.
He also cites the cases of
(1) Enekebe v. Enekebe (1964) 1 All N.L.R 102: (2) Kudoro v. Alaka (1956) 1 FSC 82: (3) Awani v. Erejuwa (1976) 11 SC 307 and (4) Omadide v. Adajeroh (1976) 12 SC 87.
The Respondent posits that, in the instant matter, the learned trial Judge exercised his discretionary power properly and justly.
The circumstances under which a court may grant or refuse leave to amend pleadings are clearly spelt out in Order 26 Rules 2 & 3 of the Bendel State (Civil Procedure) Rules 1988, as applicable in Edo State, under which the Respondent’s application was filed at the lower Court. Order 26 Rules 2 & 3 read thus:
Order 26
AMENDMENT
2. The Court or a Judge in chambers may, at any stage of the proceedings allow either party to alter or amend his indorsement or pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
3. Application for leave to amend may be made by either party to a Judge in chambers or to the Court at the trial, of the action, and such amendment may be allowed upon such terms as to costs or otherwise as may be just.
It is settled beyond per adventure, as it is the general rule that, an amendment of proceedings including pleadings will be granted if, it is for the purpose of determining in the existing suit the real question(s) controversy between the parties. The law is indeed very trite that, amendment of pleadings should be allowed at any stage of the proceedings, even on appeal unless it will entail injustice to the other side responding to the application. The application should also be granted unless the applicant is acting mala fide or by his blunder, the applicant has done some injury to the respondent which cannot be compensated in terms of costs or otherwise.
See the cases of:
(1) Tildesly v. Harper (1878) 10 Ch. D 393 at 396:
(2) Cropper v. Smith (1884) 26 Ch. D 700 at 710;
(3) Shoe Machinerv Co. v. Cutlan (1896) 1 Ch. 108 at 112 and
(4) Amadi v. Thomas Aplin & Co. Ltd. (1972) 1 All NLR (Pt.1) 409.
The Supreme Court has laid down the factors which the courts must take into consideration in an application for amendment of pleadings.
Therefore, an amendment of existing pleadings will readily be granted upon the court satisfying itself that:
1. By the amendment, the other party will not be overreached;
2. The amendment will not occasion an injustice to the other party which cannot be compensated by costs;
3. The amendment will not have the effect of changing the case of the plaintiffs cause of action and
4. The amendment is not sought in bad faith.
See the cases of:
(1) Oguntimeyin v. Gubere & Anor. (1964) 1 All NLR p. 176 at 180;
(2) Chief Adedapo Adekeye & Anor. v. Chief O.B. Akin-Olugbade (1987) 6 SC p. 268 at
pgs. 280 – 281 and (3) Chief E.I. Akaninwo & Ors. v. Chief O.N. Nsirim & Ors. (2008) 9 NWLR (Pt. 1093) p.439.
In the majority judgment of the apex court in the case of: Akaninwo v. Nsirim supra, the court’s position per Eso JSC, in the earlier case of Adekeye v. Akin-Oluebade supra, was restated by Mohammed, J.S.C, that:
The aim of an amendment is usually to prevent the manifest justice of the cause from being defeated or delayed by formal slips which arise from the inadvertence of counsel. It will certainly be wrong to visit the advertence or mistake of counsel on the litigant. The courts have therefore through the years taken a stand that however negligent or careless may have been the slip, however late the proposed amendment, it ought to be allowed, if this can be done without injustice to the other side, for a step taken to ensure justice cannot at the same time and in the same breath be used to perpetuate an injustice on the opposite party. 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.
Therefore, the above stated are the guiding principles in granting or refusing amendments to pleadings under the rules of practice of the various courts of record, which rules are basically the same.
The reason given by the learned trial Judge for granting the Respondent’s application to amend his Writ of Summons and Statement of Claim, which the Appellant is attacking on the premise that the litigation survey plan is fraught with errors, is that, such errors could only be resolved by evidence at trial. That reason can hardly be faulted and I agree with it.
It will appear that both parties are ad idem, and rightly so, on the legal position that, an amendment of pleadings can be allowed at any stage of proceedings. In the case of: Laguro v. Toku (1992) 2 NWLR (Pt. 223) p. 278 Akpata, J.S.C, (of blessed memory) made the following pronouncement on the state of the law that:
Justice demands that in order to determine the real matter in controversy pleadings may be amended at any stage of the proceedings, even in the Court of Appeal or this court (Supreme Court) to bring them in line with the evidence already adduced; provided the amendment is not intended to overreach and the other party is not taken by surprise and the claim or defence of the said other party would not have been different had the amendment been averred when the pleadings were first filed.
Equally trite is the further position of the Appellant that, conversely, such an amendment can also be refused at any stage of proceedings and I agree that, a refusal will be inevitable, especially if it is designed to overreach or outmanoeuvre the adverse party with the aim of wining the victory at all costs. See the case of: Aina v. Jinadu (1992) 4 NWLR (Pt. 223) p. 91 at p. 105. wherein. Niki Tobi, J.C.A. (As he then was) said thus:
A court of equity should never allow a cunning or crafty application to lord over an amendment sought mala fide, at the detriment of the adverse party. In order to ensure that justice is done to the parties, the court should open its eyes wide and with a meticulous and searching mind comb through the entire application.
However, the Appellant’s grouse is that, the Respondent, by the amendment sought and granted, has completely made a detour from his original claim.
According to the Appellant, the Respondent did not provide reasons which he considers tenable for grounding the amendment.
As alluded to above, the foremost factor to be considered by a court when faced with an application for amendment of pleadings is that, the amendment sought must be such that will assist the court to identity and bring out the real issues in controversy between the parties for a just determination of their case. See the cases of:
(1) Ojah v. Ogboni (1976) 5 SC p.69 and
(2) Okeowo v. Migliore (1979) 11 SC p. 138.
The Respondent’s position is quite trite as well, that, the grant of leave to amend pleadings is at the discretion of the court to which the application is made and just like other discretionary powers of court, the exercise of the discretion must be shown to have been judicial and judicious having regard to the presented facts and circumstances of each particular case, the main effect of which is, to do substantial justice. See the cases of:
(1) Gen. & Aviation Services Ltd. v. Captain Paul M. Thahal (2004) 10 NWLR (pt.880) p.50 and
(2) Ebe v. C.O.P. (2008) 4 NWLR (Pt. 1076) p. 189.
I shall now relate the foregoing principles to the facts of the instant case. The poser that calls for resolution is: Can it be said that the Appellant herein will be prejudiced by the amendment granted to the Respondent’s writ of Summons and Statement of claim by the lower court? As pointed out earlier, the major quarrel of the Appellant is that the measurement of the property in dispute as stated in the Amended Statement of claim is different from that stated in the original Statement of claim, I have earlier on above reproduced the endorsement contained in the two separate processes.
At this juncture, it is pertinent to state that, the plank upon which the amendment under consideration is hinged is, the litigation survey that was carried out by the Respondent by the order of the lower court. There is nothing on the face of the record to indicate that the said Respondent’s application was opposed by the Appellant. Therefore, it became imperative for the survey plan to be pleaded accordingly. This is exactly what the Respondent has done in the given circumstances of this matter, contrary to the Appellant’s position, the amendment was predicated upon a ground, which to all intents and purposes was considered justifiable by the learned trial Judge and to which I concur. The Appellant cannot complain of having been prejudiced or overreached in any way.
I must also disagree with the Appellant that, the Respondent did not state tenable reasons by way of depositions in the supporting affidavit to the application, for his failure to initially state the dimension of the property in dispute as amended. In this regard, for purposes of clarity, good understanding and easy reference, I refer to paragraphs 4 to 11 of the supporting affidavit, wherein, the Respondent averred as follows:
4. That it was one L.A. Ebhonuaye Esq. who was the Plaintiffs counsel at the inception of this suit.
5. That since the action was instituted the land in dispute was not surveyed.
6. That the Plaintiff had to brief another counsel, one T.E. Ogbeide-Ihama, Esq precisely on 19/3/07 to represent him in court after properly debriefing the counsel who instituted the action on behalf of plaintiff.
7. That in a bid to reconcile the brief with the earlier pleading filed on behalf of Plaintiff/Applicant and following the advise by my new counsel T.E. Ogbeide-Ihama Esq., leave of court was sought and obtained on the 5th day of June, 2007 to enable Plaintiff carry out a litigation survey in respect of the land in dispute in order to ensure that this Honourable Court do justice in this case.
8. That a licensed surveyor was commissioned to survey the land and that the litigation survey plan is now ready.
9. That T.E. Ogbeide-Ihama equally advised the Plaintiff/Applicant that it is necessary to amend the claim endorsed on the Writ of Summons following facts which emanated from the litigation survey carried out.
10. That the litigation survey plan No. KS/ED/L/05/2007 dated the 28th day of June, 2007 is hereby attached to this motion and marked Exhibit “C”.
11. That the production of the litigation survey plan necessitated the amendment of the Statement of Claim and Writ of Summons earlier filed by the Plaintiff because the facts that emanated from the litigation survey carried out revealed that some facts were in advertently left out by the former
counsel in the former pleading settled on behalf of plaintiff.
There is no doubt in my mind that, the reason given by the lower Court for granting the first application of the Respondent to carry out the said survey of the property, that is, the purpose of being assisted in determining the real questions in controversy between the parties is, in accordance with established and immutable position of law in this respect.
To put it in other words, the subsequent amendment was allowed to bring the pleadings in line with that piece of material and relevant fact as reflected in the survey plan. To my mind, the amendment has not changed the character of the claim of the Respondent. I agree entirely with the Respondent, that there is no ambiguity as to the nature of it. The identity of the property is not in any dark shadow. Therefore, the assertion by the Appellant that the cause of action in the case has been altered by the amendment is misconceived. The amendment to my mind is in furtherance and an expatiation of the Respondent’s claim.
I have perused the counter-affidavit of the Appellant in opposition to the application of the Respondent, see pages 31 to 32 of he record of appeal, there is no deposition therein to show that the application was not made in good faith. See the cases of:
(1) Okundaye v. Texaco Overseas (Nig.) (2001) 6 NWLR (Pt.710) p.730 and
(2) Sanni v. Abdul-Salam (2009) 15 WRN Vol. 15 p.61 at p. 100 paras.26 – 32.
I am at one with the Respondent that, at the stage when his application was made, he was not under any bounding legal duty to do more than he did.
Equally, the learned trial Judge acted well within limit by refusing to be dragged by the Appellant into delving into the substantive matter at that interlocutory stage of the case. Hence, the Appellant’s contention that the learned trial Judge failed to consider in his ruling the issues of locus standi, fair hearing, etc, is untenable and not only rejected, this Court will not be lured into or have anything to do with making any pronouncement one way or the other in that regard in order not to prejudice the “judex” of the case.
This Court has only been approached to determine, whether the lower Court was right in granting the Respondent’s application to have his pleading, that is, the Statement of Claim amended? For the above given reasons, this question is answered in the affirmative.
I wish to point out and in support of the Respondent’s submission that, the Appellant has not been (not that he can be) barred from amending his Statement of Defence if he chooses so to do. Indeed, the learned trial Judge gave an order in his ruling that the Appellant should make consequential amendment to his own pleading, see the last two lines of the ruling at page 30 of the record of appeal, which I have also set out earlier on above. The learned trial Judge has rightly allowed an equal level playing ground to the Appellant. Therein lies the equity in the matter of the application. The Appellant has not in any way been denied his right to a fair hearing. For, hearing, in the proper sense of the word, is yet to commence.
In essence, it is difficult for me to agree with the Appellant that, the discretion exercised by the learned trial Judge in granting the application of the Respondent to amend his Statement of Claim in this case, is not supported by the facts relied upon by the Respondent in showing that the Appellant would not be prejudiced, injured, surprised or overreached. Most importantly, the Respondent deposed in his supporting affidavit to the fact that the Respondent changed counsel who reviewed the entire process already filed and in his entitled wisdom decided to amend the pleadings of the Respondent the way he did. See the case of: Chief of Defence Staff v. Adhekegba (2009) 13 NWLR (Pt. 1158) p. 332 at n. 363. paras. C – D, where Bada, J.C.A. aptly captured the right of a party and the power of courts in relation to application for amendment of processes as follows:
An application for amendment is a right of the parties to enable them present their case in the way it……appears best to them once it does not occasion injustice to the other party. See the following cases: U.B.N. Ltd. v. Dafiaga (2000) 1 NWLR (Pt. 640) at 175; Stanley Aigbe & Anor. v. Lucky Erhabor & Anor. (1998) 7 NWLR (Pt. 557) Page 255.
The above stated position of fact was uncontroverted by the Appellant. See the cases of:
(1) Buhari & Ors. V. Obasanjo & Ors. (2003) 17 NWLR (Pt.850) p.587;
(2) Egbuna v. Egbuna (1989) 2 NWLR (Pt.106) pt.773;
(3) Agu v. NICON Ins. Plc. (2000) 11 NWLR (pt.677) p. 187 and
(4) United Bank of Kuwait Plc. v. Rhodes (2000) 2 NWLR (Pt.645) p.457.
In the instant matter, I hold that, the lower Court was right in its examination of the facts presented and decision in the application for the amendment in this matter. I am not in doubt in coming to the conclusion that, the discretion of the lower Court was exercised judicially and judiciously. I cannot fetter same. See the cases of:
(1) Buhari v. Obasanjo supra at p.660 paras. A-D and (2) Opara v. Ihejirika (1990) 6 NWLR (Pt. 156) p. 291.
I adjudge the learned trial judge to have passed, the “Judicial and judicious” test.
In the final analysis, this appeal is devoid of merits and the same is hereby dismissed by me. The ruling of the lower Court delivered on 14th April, 2008, is hereby affirmed. I remit this case to the Chief Judge of Edo State for re-assignment to another Judge of the State, other than, Hon. Justice E.F. Ikponmwen, for trial.
I award the sum of Twenty Thousand Naira (N20,000) only as costs in favour of the Respondent and against the Appellant.
AMIRU SANUSI, J.C.A.: I had the advantage of reading a copy of the judgment prepared by my noble Lord Omoleye, J.C.A. before now. I am in entire agreement with her reasoning and conclusion which I also adopt as mind. The appeal is unmeritorious and is accordingly dismissed by me. I endorse the consequential order made in the lead judgment.
GEORGE OLADEINDE SHOREMI, J.C.A.: I have had the privilege of reading the judgment of my learned brother, Omoleye J.C.A.
I agree entirely with the reasoning and conclusion therein. The appeal lacks merit and I also dismiss same as unmeritorious. I also agree with the consequential orders made.
Appearances
P.O. Odiase Esq.For Appellant
AND
T.O. Ogbeide-Ihama Esq., with him D.O. Omoregie EsqFor Respondent
