DR. MICHAEL ASUEN & ANOR v. LUCKY OMOREGIE (2012)

DR. MICHAEL ASUEN & ANOR v. LUCKY OMOREGIE

(2012)LCN/5282(CA)

In The Court of Appeal of Nigeria

On Friday, the 30th day of March, 2012

CA/B/230/2007

RATIO

PLEADINGS: BINDINGNESS OF PLEADINGS OF PARTIES

The general principle of law is that, parties are normally bound by and restricted to issues averred by them in their respective pleadings. See the case of: Ikotun v. Oyekanmi (2008) 10 NWLR (Pt. 1094) p. 100 at p. 118 para. H. Therefore, a court is enjoined to concern itself only with evidence of the facts specifically pleaded by parties before it. Hence, any evidence which is at variance with the averments in the pleadings goes to no issue and ought to be disregarded by the court. See the cases of: (1) Total (Nig) Ltd. v. Nwoko (1973) 5 S.C. p.1 and (2) Federal College of Education v. Anyanwu (1997) 4 NWLR (Pt. 501) p. 533. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

PLEADINGS: AT WHAT STAGE CAN AN AMENDMENT OF PLEADINGS BE ALLOWED

However, amendment of pleadings for the purpose of determining the real issues in controversy between parties is allowed at any stage of court’s proceedings, including on appeal, unless of course such an amendment will result in injustice, or surprise, or embarrassment to the other party. An amendment will also not be allowed, if the applicant is acting ‘mala fide’ or if the blunder of the applicant will cause injury to the respondent, which injury cannot be compensated by way of costs or otherwise. See the cases of: (1) Mamman v. Salaudeen (2005) 18 NWLR (Pt. 957) p. 478; (2) Olu of Warri v. Esi (1958) SCNLR p.384; (3) Adetutu v. Aderohunmu (1984) SCNLR p. 515 and (a) Alsthom S. A. v. Saraki (2000) 14 NWLR (Pt. 687) p. 415. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

PLEADINGS: REQUIREMENT FOR AMENDMENT OF PLEADINGS ON APPEAL

EVIDENCE: WHETHER ADMITTED FACT NEED BE PROVEN

It is trite law that an admitted fact need not be proved. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

JUSTICES

RAPHEAL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

Between

1. DR. MICHAEL ASUEN
2. SAMUEL ASUEN Appellant(s)

AND

LUCKY OMOREGIE Respondent(s)

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Lead Ruling): The Applicants are the Appellants before this court. In their application, the Applicants are seeking the following orders, which are predicated upon a sole ground:
1. An order granting leave to the Defendant/Appellant/Applicants to further amend paragraphs 2 and 3 of their Amended Joint Statement of Defence which can be found at pages 44 – 47 of the record in the manner formulated in the schedule attached to the affidavit in support of the motion and marked as exhibit A.
2. An order deeming the said schedule as being paragraphs 2 and 3 of the Amended Joint Statement of Defence and also forming part of the record of appeal.
AND for such further order or other orders as this Honourable Court may deem fit to make in the circumstances of this case.
GROUND UPON WHICH THIS APPLICATION IS MADE:
By virtue of Section 15 of the Court of Appeal Act, 2004 and Order 4 Rule 1 of the Court of Appeal
Rules, 2007, the Applicants can amend their Joint Statement of Defence in line with the evidence on record.
In support of the application is an affidavit of eighteen (18) paragraphs deposed to by Mr. Benjamin Ojumah, a legal practitioner in the law firm of the Applicants’ senior counsel. The relevant paragraphs of the affidavit are hereunder reproduced for easy reference as follows:
3. On the 31st day of May, 2001 the Plaintiff/Respondent filed at the Registry of the trial court his statement of claim dated 31/05/2001.
The statement of claim can be found at pages 3 – 5 of the record.
4. On the 18th of October 2001, the Defendants/Appellants/Applicants filed at the Registry of the trial court their joint statement of defence dated 18/06/2001 which can be found at pages 7 – 10 of the record.
5. In paragraph 2 of the said joint statement of defence dated 18/06/2001, the applicants admitted paragraphs 14 of the Plaintiff/Respondent’s statement of claim dated 31/05/2001.
6. After the Defendants/Appellants/Applicants filed their joint statement of defence referred to above, Plaintiff/Respondent thereafter further amended his statement of claim. The further amended statement of claim is dated 17/1/2006 it can be found at pages 38 – 40 of the record. The amendment altered the numbering of the Plaintiff/respondent’s earlier statement of claim; and this made the averments in the paragraphs different from the averment in the paragraphs of the earlier statement of claim. Paragraph 14 of the earlier statement of claim which the Applicant had earlier admitted changed and the averments in the current paragraph 14 of the amended statement of claim became different from the averments in paragraph 14 of the earlier statement of claim.
7. The defence Counsel to the Applicants amended the applicants’ Joint Statement of Defence. The Amended Joint Statement of Defence is dated 10/5/2006; and in that amendment, they inadvertently retained the admission in paragraph 2 of the said earlier Joint Statement of Defence dated 18/6/2001 wherein they admitted paragraph 14 of the respondent’s statement of claim dated 31/5/2001. The amended statement of defence can be found at pages 44 – 47 of the record.
8. The Applicants at the trial court led evidence in denial averment of the current paragraph 14 of the respondent’s amended statement of claim dated 17/1/2006.
9. When the learned trial Judge delivered his judgment on the 27th day of February, 2007 the applicants were shocked to discover from the judgment that they admitted paragraph 14 of the said Further Amended Statement of Claim in paragraph 2 of the said Amended Statement of Defence.
10. The applicants never intended to admit paragraph 14 of the respondents’ further amended statement of claim but the error which is that of the counsel arose because of their failure to take into congnizance the re-numbering of the respondent’s statement of claim in the further amended statement of claim. This assertion is in line with the Defendants/Appellants/Applicants’ evidence on record.
11. In order to put the record straight and in line with the evidence on record hence this application.
12. The applicant will not lead additional evidence in support of the amendment as same is already in evidence.
13. It is erroneous admission that the learned trial Judge based his judgment upon.
14. The issue as to whether there was an admission of the fact contained in paragraph 14 of the further amended statement of claim was never raised at the trial Court otherwise applicant would have amended the joint statement of defence before the learned trial Judge delivered his judgment. The learned trial Judge raised the issue “suo motu” without calling on Counsel to address him on same.
15. The amendment sought to be made is contained in the schedule attached herewith and marked as exhibit A.
16. That it is in the interest of justice to grant this application.
17. The Respondent will not be prejudiced.
Attached to the supporting affidavit is an exhibit marked “A”, which is the schedule of the proposed amendment.
In response to the counter-affidavit of the Respondent, the Applicants filed a further affidavit of five (5) paragraphs deposed to by the 2nd Applicant, Mr. Samuel Asuen. The relevant portions of the further affidavit are as follows:
1. That as the 2nd Appellant/Applicant in this suit I have the consent and authority of 1st Appellant/Applicant to depose to this affidavit.
2. That on the 22nd day of January 2008, I filed a motion before this Honourable Court to further amend paragraphs 2 and 3 of our joint amended statement of defence in this suit.
3. That my Counsel inadvertently faited to exhibit the amended joint statement of defence which we are now to amend. A certified true copy of the amended joint statement of defence dated 10th day of May, 2006 is hereby attached and marked as exhibit B.
4. That I attached herewith the proposed further amended joint statement of defence marked as exhibit C.
Attached to the further affidavit are two (2) exhibits, marked “B” and “C”.
Exhibit B is the, Amended Joint Statement of Defence, dated and filed on 10th May, 2006, at the trial court. Exhibit C is, the proposed Further Amended Joint Statement of Defence of the Applicants.
In opposition to this application, the Respondent through one Ogbeide Jeffrey swore to a counter affidavit of four (4) paragraphs. The relevant paragraphs of the counter affidavit are as follows:
2. That I have the authority and consent of the Respondent/Respondent to depose to this affidavit on his behalf.
That I am informed by O.A. Lawani Esq., of Counsel to the Respondent in the Law Firm of Osagie Obayuwana & Co. at about 2.00 pm on 2/2/10 and I verily believe him as follows:
a. That paragraphs 6, 7, 8, 9, 10, 11,12,13,14,15,16,17 and 18 of the Affidavit in support are not true but
calculated falsehood to mislead this honourable court.
b. That there is an appeal filed by the Applicants against the judgment of the lower court.
c. That paragraph 7 of the Supporting Affidavit is an after thought.
d. That at the earliest time, the Appellants knew what was contained in paragraph 14 of the Further Amended Statement of Claim of the Respondent and did not take steps.
e. That there is no evidence that it was Counsel’s error not to take cognisance of the renumbering of the
Respondent’s Further Amended Statement of Claim.
f. That the Appellants never intended to admit paragraph 14 of the Respondent’s Further Amended
Statement of Claim is also an after thought and overreaching.
g. That facts admitted needs no further proof.
h. That the trial Judge did not raise the fact contained in paragraph 14 of the Respondent’s Further Amended Statement of Claim suo motu but rather evaluated the evidence on record with the pleadings and pronounced on same.
i. That this application is a ploy by the Appellants/Applicants to continue this case without end with a view of frustrating the Respondent/Respondent.
j. That this application is brought malafide.
k. That it is in the interest of justice to refuse this application.
l. That the Respondent will be highly prejudiced by the grant of this application.
Written addresses were filed and exchanged by counsel to both parties pursuant to the orders of this Court.
When this application was heard on 19th January, 2012, the Applicants’ senior counsel, Sir A.O. Eghobamien SAN identified, adopted and relied on his written address dated 17th June, 2010 which was filed on 18th June, 20I0. Learned senior counsel for the Applicants also relied on all the averments in the supporting affidavit, further affidavit, and the lists of additional authorities filed by him. He urged this Court to grant the application.
Mr. O.A. Lawani, on behalf of the Respondent identified the written address prepared by him, which is dated and was filed on 28th February, 2011. He adopted and relied on this as well as all the paragraphs of the Respondent’s counter affidavit. He urged this Court to dismiss the application.
The general principle of law is that, parties are normally bound by and restricted to issues averred by them in their respective pleadings. See the case of: Ikotun v. Oyekanmi (2008) 10 NWLR (Pt. 1094) p. 100 at p. 118 para. H. Therefore, a court is enjoined to concern itself only with evidence of the facts specifically pleaded by parties before it. Hence, any evidence which is at variance with the averments in the pleadings goes to no issue and ought to be disregarded by the court. See the cases of: (1) Total (Nig) Ltd. v. Nwoko (1973) 5 S.C. p.1 and (2) Federal College of Education v. Anyanwu (1997) 4 NWLR (Pt. 501) p. 533.
However, amendment of pleadings for the purpose of determining the real issues in controversy between parties is allowed at any stage of court’s proceedings, including on appeal, unless of course such an amendment will result in injustice, or surprise, or embarrassment to the other party. An amendment will also not be allowed, if the applicant is acting ‘mala fide’ or if the blunder of the applicant will cause injury to the respondent, which injury cannot be compensated by way of costs or otherwise. See the cases of: (1) Mamman v. Salaudeen (2005) 18 NWLR (Pt. 957) p. 478; (2) Olu of Warri v. Esi (1958) SCNLR p.384; (3) Adetutu v. Aderohunmu (1984) SCNLR p. 515 and (a) Alsthom S. A. v. Saraki (2000) 14 NWLR (Pt. 687) p. 415.

The law is trite that, an appellate court, such as this Court or the Supreme Court, has the jurisdiction to allow the amendment of the pleadings of either party, upon application, to bring the same in line with the facts before and the decision given by the trial court, in order to prevent the occurrence of substantial injustice. In such situations, amendments are more readily granted whenever the grant does not necessitate the calling of additional evidence or changing the character of the case. See the cases of: (1) Mamman v. Salaudeen (supra) and (2) Lagura v. Toku (1992) 2 NWLR (Pt. 223) p. 278. Therefore, a consideration of an application for leave to amend pleadings involves the exercise of discretion by the court. Just like other discretionary powers, the court must act judicially and judiciously. Hence, the court’s discretion must be exercised so as to do what justice and fair play will require, having regard to the facts and circumstances of each particular matter. See the cases of: (1) Jatau v. Ahmed (2003) 4 NWLR (Pt. 811) p. 498 and (2) Kate Enterprises Ltd. v. Daewoo (Nig) Ltd. (1985) 2 NWLR (Pt. 5) p. 116.
At page 39 of the record of appeal is paragraph 14 of the Respondent’s further amended statement of claim. The said paragraph 14 was expressly admitted in paragraph 2 of the Applicants’ amended joint statement of defence – see page 44 of the record of appeal. Paragraph 14 reads thus:
That when Omoregie died, his younger brother Osagiede Asuen, was the ceremonial Okaegbe, who took possession of the building plan and Approval bearing Omoregie Asuen.
It is now the wish of the Applicants to amend their joint amended statement of defence by denying the said paragraph 14 of the Respondent’s further amended statement of claim. To my mind, the purport of the said paragraph 14 is that, Osagiede Asuen was the younger brother of Omoregie. The testimony of DW2, that is, the 2nd Applicant, is very instructive. The Applicants’ claim to the property in dispute is said to be through Osagiede who allegedly gave the said property as a gift to their deceased father, Igbinadolor. The summation of the claim and counter claim of parties herein are as follows: The Applicants’ claim is that, after the death of Osakue, Edobor who was Osakue’s eldest son could not perform the funeral rites of his father Osakue because of the personal tragedy suffered by Edobor.
Hence, Osagiede the second son of Osakue, took over, performed the said funeral rights and became entitled to the “Igiogbe”, the property in dispute. Therefore, the claim of the Applicants is that, Omoregie was not the son but a servant of Osakue. The Applicants led evidence throughout the trial to support this stance.
The Respondent’s claim is that both Omoregie and Osagiede were children and descendants of Osakue Asuen. That the property in question devolved on Omoregie after the death of Osakue, Omoregie being the eldest son of Osakue. The Respondent, Lucky Omoregie who was PW 1 at trial, testified that, he is the direct son of Omoregie and therefore a descendant of Osakue.
In the case of Lagunro v. Toku (1992) 2 NWLR (Pt. 223) p. 278 at p. 294 – 295, Akpata, JSC stated the position of the law as follows:
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 over-reach 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. (The underlining is for emphasis)
In the case of Mamman v. Salaudeen (supra) at p. 504 para. F, Onnoghen, JSC, held that:
It is trite law that an appellate court, such as the lower court and this court, has the jurisdiction to amend the pleadings of either party, upon application, so as to comply with the facts before the trial court and decisions given by that court, so as to prevent the occurrence of substantial injustice. In such situations, amendments are more readily granted whenever the grant does not necessitate the calling of additional evidence or the changing of the character of the case. (The underlining is for emphasis)
I have perused the record of appeal, especially the judgment of the trial court, as well as counsel’s written submissions for and against the application. I have warned myself against delving into the main appeal but rather, I confine myself to the merit of the application. I find that the Applicants have really dwelt on issues that they are only entitled to raise in the main appeal. In their opening argument, the learned senior counsel for the Applicants submitted as follows:
We submit that in the judgment of the learned trial Judge at page 119 lines 1-17 of the record, the learned trial Judge delivered judgment in favour of the respondent partly based on paragraph 14 of the respondents amended statement of claim that was erroneously admitted in paragraph 2 (which they did not intend to admit) of the applicants amended joint statement of defence.
I am of the strong opinion and I hold that, if the amendment had been averred when the pleadings were first filed, the defence of the Applicants would not have been different. After all, pleadings are only averments of facts and do not constitute evidence. Furthermore, if the proposed amendment is granted at the stage, the amendment will not be in tandem and compliance with the decision given by the trial court. I am therefore at one with the Respondent’s counsel’s submission that, the proposed amendment will change the character of the case before the trial court and necessitate the calling of additional evidence. This will definitely not meet the ends of justice because the Respondent will certainly be overreached.
Consequently, I am of the view that, if the proposed amendment is allowed, this would result in substantial injustice to the Respondent. In the given circumstance, I hold that, it will be injurious to grant the application. The application is accordingly refused and dismissed. I also hold that, the Respondent is entitled to the costs of this application, which is assessed at ten thousand naira (N10,000) and against the Applicants.

RAPHAEL CHIKWE AGBO, J.C.A: I have been privileged to read the ruling delivered by Omoleye, J.C.A and I agree completely with both her reasoning and conclusions. It is trite law that an admitted fact need not be proved. Amending the pleadings at this stage to change an admitted fact to a contested fact will cause grave injury to the other party. I too dismiss this application. I abide by all the consequential orders contained in the lead ruling including the order as to costs.

CHIOMA EGONDU NWOSU-IHEME, J.C.A: My learned brother OMOLEYE J.C.A. gave me before now the Ruling just delivered. I agree that it will be unjust to Grant the application at this stage. I also dismiss the application and award N10,000 costs against the Applicants and in favour of the Respondent.

Appearances

A. O. Eghobamien SAN with him B.O. OjumahFor Appellant

AND

O. A. LawaniFor Respondent