SMART OKUNDAYE V. OSADEBAMWEN MOSES
(2013)LCN/6063(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of March, 2013
CA/B/411/2011(R)
RATIO
“The law is as correctly stated by the parties that leave to amend may be made and granted at any stage of the proceedings. This is settled law, and does not call for taking any round about on it. However in determining the 1st leg of motion, which is seeking to amend the Statement of Claim filed at the lower court, now in the Court of Appeal, the law provides some exceptions to the general rule on amendment at this stage, because of its uniqueness. The locus classicus on the subject of amendment of Statement of Claim at the appellate level is the Supreme Court’s decision in Adekeye V. Akin Olugbade (1987) 3 NWLR (Pt. 60) 214 at 224 – 225 Paragraphs C, D, E and F. In paragraph “C” the Supreme Court stated: “By virtue of Section 15 of the Court of Appeal Act, the Court of Appeal can grant an amendment which would have been granted by the trial Court had the application been made in the trial court. Paragraph ‘D’ An amendment of the Plaintiffs claims in the Court of Appeal to reflect a fact already found by the trial court is proper since such amendment could not possibly be said to have prejudiced the fair trial of the case neither could it have cause any surprise, injury or embarrassment to the other party. Paragraph ‘E’ A court ought to refuse an application for amendment where (a) it is made malafide, (b) it would cause unnecessary delay or (c) it will in any way unfairly prejudice the opposite party, (d) it is quite irrelevant or useless or (e) it would only and merely raise technical issues. Paragraph ‘F’ The court should allow all amendments that are required for the purpose of using already available evidence and findings of facts of the trial court.” Per BAGE, J.C.A
“This court, the Court of Appeal added its voice on this subject of amendment of claims at the Court of Appeal in the case of Edoigiawerie v. Aideyan (2006) 10 NWLR (Pt. 988) 438 at 441 Parag. D. The court held as follows:- “The test as to whether a proposed amendment should be allowed is 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. Adekeye V. Akin-Olugbade (1937) 3 NWLR (pt. 60) 214 referred to page 450 paragraphs C – D.” Per BAGE, J.C.A.
JUSTICES
HELLEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
SMART OKUNDAYE Appellant(s)
AND
OSADEBAMWEN MOSES Respondent(s)
SIDI DAUDA BAGE, J.C.A (Delivering the Lead Ruling): On the 18th February, 2013 when this matter was called up for hearing of the Motion on Notice dated and filed 11th April 2012, the learned counsel E.U. Etukudo, Esquire represented the Respondent/Applicant, while O.I. Usunobun Esquire represented the Appellant/Respondent.
The three (3) reliefs sought on the motion paper are as follows:
(1) An order granting leave to the Respondent/Appellant to amend his statement of claim contained at page 4, 5 and 6 of the Record of Appeal in the manner formulated and underline in red in the proposed Amended statement of claim annexed to the affidavit in support of this motion as Exhibit A.
(2) An order enlarging the time within which the Respondent may file Respondents brief of argument annexed as Exhibit B to the affidavit in support of this motion, the time allowed by rules of court having expired.
(3) An order deeming as properly filed and served the said proposed Amended statement of claim and Respondent brief of argument, the appropriate filing fees having been paid.
The Grounds for the Reliefs sought:
GROUNDS FOR RELIEF ONE
1. By the provision of order 4 rules 1 of the Court of Appeal Rules 2011, this Court has power to amend the Statement of Claim to meet the justice of the case.
2. The Record of Appeal is now before this Court.
3. The amendment is to bring Respondent Statement of Claim in line with the evidence giving by PW2 at the hearing as contained at page 19 line 9 to 10 of the Record of Appeal, where he said ‘The cost of the bleached artificial teeth is N50.000.00 per one. The total will cost N250,000.00, and page 15 line 28 to page 17 lines 1 and 2 of the said record where he said ‘I pray that the court to ask the defendant to pay me as paragraph 18 of my statement of claim to pay the expenses of my treatment …’
4. In the case of LAGURO V. TOKU (1992) 2 NWLR (PT 223) page 278 at 294 para. H the court held,
‘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 to brine 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 and the defence of the other party would not have been different had the amendment been averred when the pleading was first filed.’
5. In ALSTHOM S.A. V. SARAKI (2004) 14 NWLR (PT 687) 415 at 428 C-D Achike JSC said:
‘leave to amend may be made and granted at any stage of the proceedings. It is however important to seek such leave as soon as the defect in the proceedings is detected. Notwithstanding this guide, an amendment may be sought and if appropriate granted on appeal if it is to amend the record of the trial court in line with facts proved before the trial court and the decision.’
6. The amendment sought does not require further evidence to prove the said amendment.
7. The application if granted would not over reach the Appellant as it is intended to utilize the evidence of PW2 giving during trial without more.
GROUND FOR RELIEF 2
1. Paragraph 2 sub paragraphs (h) to (L) of the Respondent/Applicant affidavit in support of this application stated facts for the default in filing Respondent brief within time.
2. The said default was not in any way occasioned by the Respondent/Applicant.
GROUND FOR RELIEF 3
1. The fees having been paid, it will be in the interest of justice if the Amended Statement of Claim and the Respondent brief are deemed as properly filed and served, to avoid further delay in the hearing of this case.
2. Deeming the Amended statement of Claim and the Respondent Brief of argument as properly filed and served will not occasioned any injustice to the Appellant.
The said motion was supported by an affidavit of three (3) paragraphs.
In arguing the motion learned counsel to the Respondent/Applicant, on the first ground submitted that by the provision of Order 4 Rule 1 of the Court of Appeal Rules 2011, this court has power to amend the statement of claim to meet the justice of the case as Record of Appeal is now before this court. The amendment is not to introduce new evidence but is merely to bring Respondents Statement of Claim in line with the evidence given by PW2 and PW4 during the trial at the High Court.
Learned counsel submitted further that at paragraphs 13, 15 and 18(d) of the Statement of Claim sought to be amended at page 5 of the Record of Appeal, the Respondent (the Plaintiff at the High Court) pleaded the following facts:
(13) Plaintiff avers that it will cost N50,000 to replace the damage teeth, with artificial ones, and N50,000 to clean the artificial teeth at N3,000 per year for 20 years.
(15) Plaintiff avers that he has spent N5,000 as cost of hiring vehicle to hospital and purchase of drugs and will continue to do so for the next 20 years. Plaintiff therefore require N15,000 as transportation cost to hospital for purchase of drugs etc.
(18) Wherefore Plaintiff claims from the defendant one million Naira special and general damages as follows:-
(d) N50,000.00 for replacement of 5 teeth damage by defendant with artificial teeth.
Learned counsel further submitted that the amendment sought in paragraphs 13 and 18(d) is to introduce the word EACH inadvertently omitted in the pleading by mistake but given in evidence during trial. In paragraph 15, the pleading mistakenly stated N5,000 instead of N15,000. The amendment sought in respect of paragraph 15 of the Statement of Claim is to state the actual amount which is N15,000 and not N5,000.
The mistake in paragraph 15 is obvious as the concluding statement of the pleading reads Plaintiff therefore requires N15.000 transportation cost to hospital for purchase of drugs etc. We also refer to page 16 line 28, 17 lines 1 and 2 of the Record of Appeal where the Respondent said “I pray that the court ask the Defendant to pay me as paragraph 18 of my Statement of Claim to pay the expenses of my treatment. Also pages 19 lines 9 to 10 of the Record of Appeal where the Respondent gave the following evidence during trial. The cost of the bleached artificial teeth is N50,000:00 per one. The total cost N250,000:00. Also page 22 line 18 of the Record of Appeal where the PW4 gave the following evidence during trial: These other one is a fix denture. You do not remove it. It is called bridge. This is more expensive, it is about N30,000 to N50,000 per teeth.
See:- Alsthom S. A. V. Saraki (2000) 81 LRCN 3015 at 3033; Lasisi Kode V. Alh. Suara Yusuf (2001) 84 LRCN 521 at 543 para G – H.
Learned counsel further submitted that the amendment sought does not require further evidence to prove the said amendment. The Respondent only intended to utilize the evidence of PW2 and PW4 given during trial without more. The granting of the application would not be over reaching.
Learned counsel further submitted that the failure by the Respondent to file Respondent’s Brief of Argument within time was no fault of the Respondent. We refer to paragraph 2 sub paragraphs (H) to (L) of the Respondent/Applicant affidavit in support of the motion.
Learned counsel further submitted that he has paid the filing fees for the Statement of Claim and the Respondent Brief of Argument. Respondent has also paid the time for filing of the Respondent Brief of Argument out of time. That being the case, it will be in the interest of justice if the Amended Statement of Claim and the Respondent brief are granted and deemed properly filed and served to avoid further delay in the hearing of this case, as doing so will not in any way occasioned any injustice to the Appellant.
Learned counsel submitted further that the Appellant/Respondent filed a 14 paragraphs counter-affidavit where in they alleged that the amendment would be over reaching. They did not however deny the fact that the amendment sought is already in evidence. Also that the amendment sought are based on facts and evidence adduced during trial and not new to Respondent. The Respondent had the opportunity to cross-examine and actually cross examined the Applicant. This court is urged to discountenance the counter-affidavit and dismiss the objection as being baseless, and grant the application.
The Appellant/Respondent filed a counter-affidavit of fourteen (14) paragraphs, dated 4th December 2012 and filed on the 5th December, 2012.
Learned counsel to the Appellant/Respondent U. E. Bazuaye Esq. in opposition to the application of Respondent/Applicant formulated two (2) Issues for determination in this application as follows:
(1) Whether the Respondent/Applicant can amend his Statement of Claim to incorporate issues that are already issues for determination in the substantive appeal now pending before this Honourable Court.
(2) Whether the amendment sought will not amount to invitation of the Court of Appeal to decide the matters in controversy in the main appeal, thereby over reaching the Ground of Appeal of the Appellant/Respondent.
On Issue No.1, learned counsel to the Appellant/Respondent submitted that an amendment may be made at any stage of the proceedings even on appeal if the purpose is to amend the record of the trial court in line with facts proved before the trial court and the decision. See: Alsthom S. A. V. Saraki (2000) 81 LRCN 3015.
Learned counsel submitted further that a consideration of an application of this nature involves the exercise of discretion by court. Like in all matters of exercise of discretion by court. Like in all matters of exercise of discretionary powers must be exercised judiciously and judicially. The amendment cannot be granted if its effect is to set up another case for the Respondent/Applicant by way of changing the character of the reliefs in the claim different from that contested at the trial. Amendment will be refused where there is an appeal against a decision based on the evidence now sought to be incorporated by amendment of pleading as the resultant effect will be injustice to the Appellant/Respondent which will in turn violate the rule of audi alteram pertem. See: – Jessica Trading Co. Ltd. V. Bendel Insurance Co. Ltd (1993) 1 NWLR (Pt 271) 538; Jatau V. Ahmed (2003) 4 NWLR (Pt. 811) 498.
Learned counsel submitted further that where an appeal is against a decision based on evidence which the Applicant now seeks to amend, such amendment will not be granted. See: – Texaco Overseas (Nig.) Petroleum Co. Unlimited V. Okundaye (2003) FWLR (Pt. 136) 961 at 976 Para. H. 977 Para. H. 977 Para A-B.
Learned counsel further submitted that granting the application will greatly prejudice the Respondent springing surprise and result in injustice which injury cannot be compensated by way of costs. See: First Bank of Nigeria Ltd V. John Odeh & Anor (2009) 8 WRN 63 at 70 Paras 5 – 45.
On Issue No.2, learned counsel to the Respondent submitted that amendment being sought is intended to decide through the backdoor our grounds 4 and 5 in our Notice of Appeal which we canvassed seriously under Issue No. 3 in our brief of argument filed 27/1/2012 in this court. The Applicant had opportunity to amend his pleadings up till and before Judgment in the lower court if he honestly believed there was an error in his pleadings but he did not. He chose to seek leave to amend his pleadings after the Appellants Brief of Argument had long been served on him. Equity does not aid the indolent. The application is brought in bad faith to render the appeal useless or at best an academic exercise. See 1st Bank of Nigeria Ltd V. John Odeh & Anor (Supra); Laguro V. Toka (1992) 2 NWLR (pt. 223) 278 at 294 – 295.
Learned counsel submitted further that Rules of Court must be obeyed.
The Respondent/Applicant cannot decide when to collect his Record of Appeal from the Registrar of the court below. There are no good reasons shown in the affidavit in support of his motion why time should be extended to enable him file his Brief of Argument. He has not shown good and substantial reason why this court will lean in favour of extending time to comply with the Rules. All parties were invited by the Assistant Chief Registrar to collect their Records of Proceedings but the Respondent/Applicant failed to collect at which time his time began to run. He waited until 20th March 2012 after he had been served with our Brief of Argument on 7th February, 2012. He further waited until 10th April 2012 to pick up his Record of Proceedings. This does not show diligence to defend this appeal. This court may extend time to do an act only when there are good and substantial reasons put before the court. See: – Popoola V. Babatunde (2012) 7 NWLR (Pt. 1299) 302 at 329 Paras C – E; Ajayi v. Omorogbe (1993) 6 NWLR (pt. 301) 512 at 527 Paras E – G; Akinpelu V. Adegbore (2008) 10 NWLR (pt. 1096) 531 at 568 to 569 Paras A – B. We urge the court to refuse this application and dismiss same with costs.
Arguments of counsel is carefully examined. The law is as correctly stated by the parties that leave to amend may be made and granted at any stage of the proceedings. This is settled law, and does not call for taking any round about on it. However in determining the 1st leg of motion, which is seeking to amend the Statement of Claim filed at the lower court, now in the Court of Appeal, the law provides some exceptions to the general rule on amendment at this stage, because of its uniqueness. The locus classicus on the subject of amendment of Statement of Claim at the appellate level is the Supreme Court’s decision in Adekeye V. Akin Olugbade (1987) 3 NWLR (Pt. 60) 214 at 224 – 225 Paragraphs C, D, E and F.
In paragraph “C” the Supreme Court stated:
“By virtue of Section 15 of the Court of Appeal Act, the Court of Appeal can grant an amendment which would have been granted by the trial Court had the application been made in the trial court.
Paragraph ‘D’
An amendment of the Plaintiffs claims in the Court of Appeal to reflect a fact already found by the trial court is proper since such amendment could not possibly be said to have prejudiced the fair trial of the case neither could it have cause any surprise, injury or embarrassment to the other party.
Paragraph ‘E’
A court ought to refuse an application for amendment where (a) it is made malafide, (b) it would cause unnecessary delay or (c) it will in any way unfairly prejudice the opposite party, (d) it is quite irrelevant or useless or (e) it would only and merely raise technical issues.
Paragraph ‘F’
The court should allow all amendments that are required for the purpose of using already available evidence and findings of facts of the trial court.”
This court, the Court of Appeal added its voice on this subject of amendment of claims at the Court of Appeal in the case of Edoigiawerie v. Aideyan (2006) 10 NWLR (Pt. 988) 438 at 441 Parag. D. The court held as follows:-
“The test as to whether a proposed amendment should be allowed is 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.
Adekeye V. Akin-Olugbade (1937) 3 NWLR (pt. 60) 214 referred to page 450 paragraphs C – D.
Having stated the guiding principle for the grant of this application, it becomes apposite to examine those amendments being sought by the present Applicant to see whether such are grantable or not. The Applicant in this application had sought to amend his paragraphs 13 and 18 (d) of his Statement of Claim to introduce the word EACH inadvertently omitted in the pleadings by mistake, but given in evidence during trial. He wants to amend paragraph 15 of the pleading mistakenly stated N5,000 instead of N15,000 which is the actual amount. He made references to pages 19 line 9 – 10 of the Record of Appeal where the Respondent gave the following evidence during trial. The cost of the bleached artificial teeth is N50,000.00 per one. The total will cost N250,000.00. Page 15 line 28, page 17 lines 1 – 2. ‘I pray that the court to ask the Defendant to pay me as paragraph 18 of my Statement of Claim to pay the expenses of my treatment. At page 22 line 18 “These other one is a fix denture. You do not remove it, it is called ‘bridge’ this is more expensive, it is about N30,000 to N50,000 per teeth.’ These are the nature of the amendment the Applicant is seeking if allowed by this court to effect to his claims, and at this stage.
In opposition to the application the Respondent urged this court not to grant this application to amend by the Applicant. Counsel argued that allowing the application will mean determining the matter in controversy in this appeal and at this stage. It will also greatly prejudice the Respondent by springing surprise and result in injustice which injury cannot be compensated by way of costs.
The test laid down by the Supreme Court in Adekeye V. Akin Olugbade (Supra) is that, an amendment of the Plaintiff’s claims in the Court of Appeal must reflect a fact already found by the trial court. Such amendment also must not have prejudiced the fair trial of the case neither could it have cause any surprise injury or embarrassment to the other party. The Applicant in this application did not mention any finding of fact by the trial court, which necessitated the amendment being sought for. Indeed no mention at all was made of the trial court. From the record before this court, the finding of fact by the trial court, in respect of the paragraphs being sought to be amended, is at variance. Judgment was given to the Applicant in some aspects sought to be amended. Those aspects constituted the main plank in the appeal of the Appellant. If the Applicant was not satisfied with those aspects considered for him by the trial court, will amendment cure it? The answer is no, he can only cure those aspects not to his satisfaction only by means of a cross-appeal, which he has not placed before this court. The amendment being sought for at this stage is quite major, and will undoubtedly prejudice the fair trial of this appeal. It will render nugatory the essence of the appeal, cause a surprise and injury to the Respondent. There is no doubt if the amendment sought is granted by this court, the Respondent cannot be redressed by means of costs. It is of course the responsibility of the Applicant to show by the grant of the application, award of costs can be adequate compensation to the Respondent. This leg of the application is unmeritorious, it cannot be granted by this court. It is hereby refused
On legs 2 and 3 of his application, which is for enlargement of time to file the Respondent’s Brief of Argument, and to deem same as properly filed and served, time allowed by the Rules of this court having expired. Also that all the appropriate filing fees having been paid. This court having examined the affidavit in support of the application, and especially paragraph 2 (H) (I) (J) (K) (L) (M) (N) and (O), the court is satisfied that good and substantial reasons have been provided for filing the Respondent’s brief of argument, outside the time allowed by the Rules of this court. Prayers 2 and 3 are granted as prayed for. Time is enlarged to today for the Respondent to file his Brief of Argument, time allowed to do so by the Rules of this court having expired.
Also the said Respondent’s Brief of Argument is deemed properly filed and served today with appropriate filing fees having been paid.
On the whole therefore, prayer No. 1 is refused, while prayers 2 and 3 are granted.
HELLEN MORONKEJI OGUNWUMIJU, J.C.A: I agree
TOM SHAIBU YAKUBU, J.C.A: I agree
Appearances
E. U. ETUKUDOFor Appellant
AND
U.E. BAZUAYE, O.I. USUNOBUNFor Respondent
