MR. LIVINUS ACHI v. MR. PETER EBENIGHE & ORS
(2013)LCN/6364(CA)
In The Court of Appeal of Nigeria
On Friday, the 28th day of June, 2013
CA/J/68/2008
RATIO
WORDS AND PHRASES: DISCRETION
In matters of discretion, no one case is authority for the other. A court cannot be bound by a previous decision to exercise its discretion in a regimented way, because that would be as it were, putting an end to discretion. See: AKUJINWA VS NWAONUMA (1998) 13 NWLR (PT 583) 632 at 647; ATTORNEY-GENERAL, RIVERS STATE VS UDE (2006) 17 NWLR (PT. 1008) 436 at 461; ODUSOTE VS ODUSOTE (1971) 1 ALL NLR 219 at 222.
Judicial discretion is a sacred power which inheres to a Judge. It is an armour which the judge should employ judicially and judiciously to arrive at a just decision. Same should not be left to the whims and caprices of a party to the section. It is not in tandem with the dictates of public policy which demands, inter alia, that administration of justice shall be discharged without any form of prompting by the parties.
Discretion had been defined to mean ‘a power or right’ conferred upon public functionaries by law of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. See: State v Whitman r. 11, 431 A 2d 1229, 1233: Black’s, Law Dictionary, Sixth Edition page 466. PER PETER OLABISI IGE, J.C.A
JUSTICES:
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
MR. LIVINUS ACHI – Appellant(s)
AND
1. MR. PETER EBENIGHE
2. TASK FORCE ON ENVIRONMENTAL SANITATION
3. ATTORNEY GENERAL – Respondent(s)
PETER OLABISI IGE, J.C.A (Delivering the Leading Judgment): This is an appeal against the Ruling of the Plateau State High Court of Justice contained in the Ruling of Y. G. DAKWAK. J delivered on 7th day of February, 2007. The 1st Respondent to this appeal had on 8th day of July, 1999 instituted action against the Appellant as 1st Defendant and the 2nd and 3rd Respondents as 2nd and 3rd Defendants respectively claiming the following reliefs viz:-
“A. N3 million from the defendants jointly and severally as special and general damages.
B. An order directing the defendants to restore the fence to the state it was before the destruction.
C. The costs of this action.”
Pleadings were duly exchanged. The 1st Defendant filed a further Amended statement of Defence pursuant to the leave of the High court on 16th day of November, 2001 (pages 49 0 55 of the Record).
The 1st Respondent as Plaintiff opened his case at the High court on 20th day of February, 2001 and closed his case on 4th day of November, 2002 when the 1st Defendant was given 5th day of December, 2002 to open his defence (page 141) of the Record).
The 2nd Defence witness testified in the matter on 14th day of February, 2005. At the end of proceeding that day, the matter was adjourned till 25th March 2005 for continuation of defence. The court did not sit on 25-3-2005. The matter eventually came up for continuation of hearing on 10th May, 2005. The learned counsel to the plaintiff and 1st Defendant (now Appellant) were present but 2nd and 3rd Defendants were not represented. The matter was adjourned till 23rd day of June, 2005 for continuation of defence but the case came up on 7th November, 2005. One Ayo Adewale appeared for 1st Defendant while Mrs Y. N. Jwander appeared for 2nd and 3rd Defendants.
The learned counsel to the Plaintiff now 1st Respondent in this appeal wrote to the court for a stand down but the learned counsel to the Appellant informed the court he was not feeling fine, the trial court then adjourned the matter till 6th day of December, 2005 for defence to continue.
On 6th December, 2005 when the matter came up for continuation of defence Solomon Umoh Esq, for 1st Defendant sought for an adjournment which was not opposed by the learned counsel to the other parties. The learned trial Judge then adjourned the case to the 13th day of February, 2006.
When the matter came up on 13th day of February, 2006 the parties were represented by counsel. However the learned counsel to the 2nd and 3rd Respondents in this appeal asked for an adjournment on the ground that she was indisposed. The adjournment was granted and the case was adjourned till 3rd day of April, 2006 to enable the Defendants complete their defence. The matter did not come up on 3rd of April 2006 but came up on 25th day of May, 2006. On that occasion it was the learned counsel to the 1st Defendant now appellant that asked for a stand down of the matter to enable Solomon Umoh Esq., appear but the application for a stand down was opposed by the learned counsel to the Plaintiff in that other matters had earlier on been stood down. The learned trial Judge then adjourned the matter to the 6th and 7th day of July 2006 for continuation of Defence.
On 7th day of July, 2006 when the matter came up for continuation of defence, the learned counsel to the 1st defendant now Appellant Ayo Adewale Esq. informed the court that the Appellant had filed an application to amend the 1st Defendant’s further Amended Statement of Defence. The Learned Counsel to the plaintiff now 1st Respondent confirmed service of the application but asked for time to study the application to amend the further Amended Statement of Defence of the Appellant. The 2nd and 3rd Respondents learned counsel indicated to the trial court they were not opposing the application to further amend. The application was then adjourned till 9th October, 2006 for hearing but came up on 31st October, 2006 for hearing.
The application in question which is on pages 56- 57 of the Record prayed for the following Order:-
“1. An order granting the applicant leave to amend his further Amended Statement of Defence as per copy attached and marked Exhibit “A”.
2. An order deeming the Applicant’s 2nd further Amended Statement of Defence as duly filed and served, the necessary fees having been paid.
3. And for such further order or orders as the Honourable court may deem fit to make in the circumstances.”
The application was supported by 10 paragraphs Affidavit having attached to it, the proposed 2nd further Amended Statement of defence of 1st Defendant consisting of 39 paragraphs. The 1st Respondent (Plaintiff) filed an eight paragraph counter Affidavit against the application. The application was heard on 31st day of October, 2006. The 2nd and 3rd Respondents did not oppose the application.
In a considered Ruling delivered on 7th day of February, 2007, the learned trial Judge refused the application of the 1st Defendant to further amend his further amended statement of Defence. See pages 159 – 166 of the record. The learned trial Judge held thus:-
“In the present application, it is clear the application for leave to amend had been brought 4 years after the plaintiff has closed his case and two years or more after the 1st defendant opened his defence. The application at this stage which is not brought in order to bring the pleadings in line with evidence already before the court but to admit some documents considering the history of the case and the stage the case had reached is not salutary. This matter is a 1999 matter, the oldest case in this court, besides, the applicant had sought and obtained leave to and did several amendments in the matter. The applicant in this suit filed his statement of defence on 13/10/99. He filed an amended statement of defence on 22/9/2000, he filed a proposed Further Amended Statement of Defence on 11/07/2001, then he filed Further Amended Statement of Defence on 16/11/2001. As can be seen this has in a great deal contributed to the otherwise avoided delay in the disposal of this matter.
The present application is one of too many filed by the applicant, if it is granted, it will go a long way in further delaying this case as the respondent may end up re-opening his case or also amending his pleadings. This is an application that its granting at this state will rather than meet the ends of justice frustrate the course of justice. A court of justice and equity ought not to grant an application that will defeat the ends of justice. It is because of this that I use my discretion to refuse to grant the application. The application is accordingly hereby refused.”
Aggrieved by the said Ruling the Appellant appealed to this court vide Notice of Appeal dated 21st day of February 2007 on 13th day of February, 2007, against the said Ruling. For ease of reference the said Notice of Appeal consisting of two grounds with their particulars are reproduced hereunder as follows:-
“GROUNDS OF APPEAL:
a. GROUND ONE
The learned trial Judge misdirected himself on the fact when he held, to wit:
“… A Court of Justice und equity ought not to grant an application that will defeat the ends of justice. It is because of this that I use my discretion to refuse to grant the application. The application is accordingly hereby refused.”
PARTICULARS OF MISDIRECTION
1. The learned trial Judge had earlier enumerated the factors that a court would consider in the determination of an application by a party to an action for leave to amend his pleading thus:-
a. The attitude of the party seeking to amend,
b. The nature of the amendment sought in relation to the suit
c. The question in controversy
d. The time the application was made
e. The stage at which the application is made
f. All other relevant considerations;
and cited a plethora of judicial authorities to buttress his position
2. It is trite law that leave to amend pleadings would be granted where such an amendment would prevent the manifest justice of a cause being defeated by formal slips arising from the inadvertence of counsel. See Adesanoye vs Adewole (2004) 11 NWLR (Pt.884) 414 at 418.
3. Furthermore, it is well settled that an amendment to pleadings would be granted where it would bring out the real issues in controversy between the parties, and assist the court in arriving of a just and fair determination of the suit.
4. In the instant case, the 1st defendant sought to amend his statement of defence in order to plead certain documents which are relevant to his case and that would assist the court to resolve the issues in the suit fairly but which were inadvertently not pleaded therein..
5. The documents intended to be pleaded by the amendment sought are as follows:
(i) The judgment of the High Court of Plateau State in suit No. PLD/J/535/99, which was an action instituted by the plaintiff against the defendant on the same issued and subject matter as the instant suit.
(ii) The First Information Report in case No. JUAC/25CR/99 wherein the plaintiff was the suspect, on the same set of facts and subject matter.
(iii) A letter from the 2nd defendant to the Area Commander of the Nigeria Police Area Command, Jos date 7th April 1999 in relation to the subject matter in dispute in this suit.
6. The above listed documents are clearly relevant for the proper and just determination of the suit at the trial court.
7. In the instant case, the essence of the amendment sought was to prevent the manifest justice of the case from being defeated by the inadvertence of counsel.
8. In resolving the application the learned trial Judge ignored the earlier enumerated considerations but proceeded to refuse the application on the ground that the 1st defendant had been given opportunities in the past to amend his pleadings.
9. The learned trial Judge failed to consider the ends of justice which the amendment sought would have served in the proceedings before him.
B. GROUND TWO
The learned trial Judge misdirected himself on the fact when he held, to wit:-
“… As can be seen, this has in a great deal contributed to the other wise avoidable delay in the disposal of this matter. The present application is one two many filed by the applicant if it is granted it will go a long way in further delaying this case as the respondent may end up reopening his case or also amend his pleadings.”
PARTICULARS OF ERROR
1. It is a well settled principle of law that an amendment to pleadings could be made at any stage of the proceedings, even on appeal.
2. It is equally trite that there is no limit to the number of times that a party to an action can amend his pleadings, provided such amendment does not overreach or prejudice the other party in a manner that cannot be compensated by cost.
3. In the instant case, the learned trial Judge refused the 1st defendant’s application for leave to amend his pleadings in the suit merely because the said statement of defence had earlier been amended.
4. The learned trial Judge went on to find that the earlier amendments made to the 1st defendant’s statement of defence may engender delay in the disposal of the suit.
5. The said finding cannot be supported by the evidence before the trial court in resolving the 1st defendant’s application one way or the other, or even inferred from the circumstances surrounding the case in that court.
6. The incontrovertible fact before the court was that it took the plaintiff over four years to close his case.
7. There was no evidence on record to suggest that the 1st defendant was responsible for the delay in the disposal of the case.
8. The 1st defendant on his part had deposed to the fact that the amendment sought was not intended to introduce new facts that would requires rebuttal from the plaintiff or any other party to the suit, but was only intended to plead certain relevant documents.
9. The learned trial Judge’s finding that the plaintiff would have to re-open his case was not supported by the affidavit evidence before him as the plaintiff never deposed under oath that he will have to do so in the event that the amendment was allowed.
10. There was no way that the amendment sought would have overreached the plaintiff as he still had an opportunity to cross examine the 1st defendant and or his witnesses, if the documents were eventually admitted in evidence.”
The Appellant filed Brief of Argument dated 29th day of October, 2010 on the same date. The said Appellant’s Brief of Argument was deemed properly filed by this court on 27th day of October, 2011.
By the leave of this court granted on 27th day of February, 2012, the 1st Respondent’s Brief of Argument dated 9th December, 2011 and filed same date was deemed properly filed. The Appellant thereafter filed what it titled:-
“REPLY ON POINTS OF LAW” apparently in reply to the 1st Respondent’s Brief of argument on 30th day March, 2012. It is dated 29th day of March, 2012. The appeal was argued on 24th day of April 2013. The learned Senior Counsel to Appellant Solomon Umoh SAN informed this court that the Appellant formulated two issues. He adopted the Appellant’s Brief of Argument and the Reply on Points of Law. He adumbrated on the issues raised for determination and urged this court to allow the appeal and grant the amendment sought at the lower court.
L. E. Anyia Esq., Learned Counsel to the 1st Respondent informed the court that he adopted the Respondents brief of Argument. The Respondent raises an issue for determination. He urged the court to dismiss the appeal. L.E. Anyia Esq., however in oral argument in reference to the argument of the Appellant that all he wanted to do was to plead and rely on some documents at the trial said the question one would ask is whether those documents now sought to be pleaded were not available to the Appellant as 1st Defendant when he amended twice before the close of the Plaintiffs case at the lower court. That the Appellant ought not to have waited till the Plaintiff closed his case before he brought the application to amend which L.E. Anyia Esq, submitted was too late in the day.
On the Reply on Points of law filed by the Appellant, L. E. Anyia Esq., agreed that under order 8 Rule 5 the Appellant has right to file Appellant’s Reply Brief but that such a Reply must relate to new issues argued in a Respondent’s brief. That all the submissions made in the Reply on Points of law by the Appellant had been dealt with by Appellant in his Brief of Argument. He urged us to affirm the decision of the lower court.
The 2nd and 3rd Respondents did not file any Respondent’s Brief but were represented by Mrs Y. N. Jwander Assistant Chief State Counsel when the appeal was argued.
The two issues distilled for determination by the Appellant out of iris two grounds of appeal which were argued together are:-
(a) Whether having regards to the facts and circumstances of this case the learned trial Judge was right when he refused the appellant’s application to further amend his further amended statement of defence on the ground that granting same will defeat the ends of justice. (This issue is distilled front ground one of the Appellant’s Notice and Grounds of Appeal).
(b) Whether the learned trial Judge was right when he refused the appellant’s application to further amend his further amended statement of defence because the appellant had earlier brought similar application before hint. (This issue is distilled from ground two of the appellants notice and grounds of appeal).
The sole issue distilled by the 1st Respondent for determination is as follows:-
“WHETHER THE TRIAL JUDGE WAS RIGHT TO REFUSE THE APPELLANT’S APPLICATION TO FURTHER, FURTHER AMEND THE APPELLANT’S STATEMENT OF DEFENCE AT A TIME WHEN THE RESPONDENT HAS CLOSED HIS CASE.”
I am of the opinion that this appeal can be determined on the two issues raised for determination by the appellant as argued by the Appellant learned Senior Counsel.
“ISSUES ONE AND TWO
WHETHER HAVING REGARDS TO THE FACTS AND CIRCUMSTANCES OF THIS CASE THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE REFUSED THE APPELLANT’S APPLICATION TO FURTHER AMEND HIS FURTHER AMENDED STATEMENT OF DEFENCE ON THE GROUND THAT GRANTING SAME WILL DEFEAT THE ENDS OF JUSTICE.
&
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE REFUSED THE APPELLANT’S APPLICATION TO FURTHER AMEND HIS FURTHER AMENDED STATEMENT OF DEFENCE BECAUSE THE APPELLANT HAD EARLIER BROUGHT A SIMILAR APPLICATION BEFORE HIM.
The Learned Silk for the Appellant started off by stating that the primary and most essential duty of all courts of law in Nigeria and elsewhere is to do substantial justice to all the parties before them and not to punish or discipline them for the mistake they make in the conduct of their cases. He relied on the case of OLOGUNLEKO VS OGUNYEHUN (2008) 1 NWLR (PART 1068) 415 G-H, 416 C- H and 419 D-F that it is in the light of the foregoing that the courts are enjoined to grant application for amendment of process before them relying on the decision of this Court in the case of ADEWUNMI VS A.G EKITI STATE (2002) 2 NWLR (Pt.751) 474 at 501 G-H: That purpose of the amendment sought by the Appellant was to introduce into his pleadings documents that are relevant for the determination of the dispute between the appellant and the Respondents at the lower court as according to Learned Silk, the learned Counsel formerly handling Appellant suit had in advertently omitted to plead on Appellant’s behalf.
The appellant therefore believes that the approach taken by the lower court in refusing the application of the Appellant to amend his further Amended Statement of defence amounts to punishing the appellant for the mistake of his Counsel in the conduct of appellant’s case. That the refusal had the effect of working injustice on the appellant. That the lower court ought to have leaned in favour of substantial justice rather than in favour of technical justice. That the law is settled that mistake of Counsel should not be visited on the litigant. He relied on the case of EDOIGIAWERIE VS. AIDEYAN (2006) 10 NWLR (Pt.988) 438 at 441.
Solomon Umoh SAN submitted that amendment of processes filed would generally be granted where the grant would prevent manifest injustice due to negligence of counsel. He relied on the cases of ADESANOYE VS ADEWALE (2004) 11 NWLR (PART 884) at 418 and AKNINWO VS. NSIRIM (2008) 4 NWLR (Pt.1093) 439 at 44 RATIO 3.
That the purpose of the application was to enable Appellant to specifically plead documents that are crucial to the determination of the dispute between the appellant and the respondents in the action instituted by the 1st Respondent against the appellant and 2nd and 3rd respondents at the lower court which documents the learned Counsel repeated were inadvertently omitted by Appellant’s former counsel.
That contrary to the submission of the 1st Respondent, if leave is granted to the Appellant to further amend his further amended statement of defence it would not overreach, embarrass nor will it spring any surprise on 1st Respondent.
He relied on the case of AISHTHOM S. A. VS SARAKI (2000) 14 NWLR (Pt.687) 415 at 417 ration 2 to contend that where an amendment would help to bring out the real issues or questions in controversy for a just and fair determination of the case it would be granted and that in this matter on appeal the court ought to have grant the amendment in that light.
That an application to amend pleadings could be granted at any stage of proceedings even on appeal by leave of Court. He relied on the cases of (1) AKANINWO VS NSIRIM SUPRA. 439 at 443 ration 2 (2) OYEWOLE VS LASISI (2000) 14 NWLR (PART 687) 342 at 345 ration 6 AND (3) ABAH VS JABUSCO NIG LTD (2008) 3 NWLR (pt 1075) 526 at 531.
The Learned silk for the Appellant submitted that in view of all the authorities cited the contention of the 1st Respondent that the application of the appellant should not be granted for reasons that 1st Respondent had closed his case is highly misconceived and not founded on any principle of law. That the court had held in the case of ADESANOYE VS ADEWALE supra that when action has been instituted within the period required by law a party is at liberty to bring as many applications as he wants to amend his claim.
The Senior Counsel submitted that the Respondents would not suffer any prejudice in that they could be adequately compensated in costs and would be given opportunity in the course of trial to object to the admissibility of the documents sought to be pleaded and cross examine on the documents. The learned silk also submitted that it was perverse for the learned trial Judge to say because appellant has brought similar application in the past he would not grant the one leading to this appeal or that it would cause delay. That the reason advanced by the trial Judge was illogical and that it is settled law that speed should not be allowed to stampede justice relying on the case OTAMPU VS OBINAZO (2001) 6 NWLR (PT. 709) 444 at 448 ration 7. That the finding of the learned trial Judge that the grant of the application may necessitate 1st Respondent reopening his case or amend his pleading as speculative on the party the Judge. He relied on the case of OYINLOYE VS ESINKIN (1999) 10 NWLR (PART 624) 540 at 542 ratio 4.
Solomon Umoh SAN stated that the law is trite that an appellate court will interfere with the exercise of discretion of a lower court where it is established to its satisfaction that the said discretion was not exercised judicially and judiciously.
He relied on the case of OLOGUNLEKO VS OGUNEYEHUN supra. It is the final submission of learned Counsel to the appellant that the trial Judge did not exercise his discretion judicially and judiciously in refusing the appellant’s application before him. He urged this court to resolve the two issues argued in favour of the Appellant.
In his response to the above submissions L. E. Anyia Esq., for the 1st Respondent commenced his argument by submitting that it is true that court has the power to grant amendment of pleadings where the amendment sought is not made mala fide and that the power to grant leave to amend is subject to the judicial and judicious exercise of the discretion of the court. That where the grant of the amendment will entail injustice to the Respondent such amendment would be refused. He referred to the case of AMANSO VS R. T. D. T.C. (2009) NWLR (pt.1170) 207 at 215 E.G. 219 D.
He submitted that the power to grant leave to amend though discretional must be justly exercised. He relied on the case OWENA BANK PLC VS OLATUNJI (2002) FWLR (pt 124) 529 at 600 A – per ONNOGHEN JCA now JSC.
It is his submission that an applicant seeking to amend his pleading would only succeed if the amendment is such that will bring the pleadings in line with the evidence already before the court. That that is not the case with the Appellant in this appeal. That the purpose of Appellant’s application was to enable the trial court admit some documents. L. E. Anyia Esq., stated that the suit was filed on 8th day of July 1999 and the Appellant filed his defence on 13th October, 1999. That the appellant filed an amended statement of defence on 22nd September, 2000.
That the Appellant filed a proposed further amended statement of defence on 11th July, 2001. He stated that the Appellant filed a further amended statement of defence on 16th November, 2001. The 1st Respondent according to learned counsel closed his case on 14th November, 2002. The appellant opened his case on 4/4/2004 and thereafter brought application to fur1her, further amend the appellant’s statement of defence according to L.E. Anyia for 1st Respondent.
That it was four years after the 1st Respondent had closed his case that Appellant now brought yet another application to amend his pleadings again. That if the Appellant is allowed to amend his pleading it will embarrass the 1st Respondent and cause him irreparable damage.
According to L.E. Anyia Esq, if this amendment is granted the Respondent cannot reopen his case and he would have lost the chance of joining issues with the Appellant as the Respondent has closed his case and this will cause him irreparable injury and injustice. He relied on the cases of OWENA BANK PLC VS OLATUNJI (2002) FWLR (PT. 124) 529 at 600 – 601 C- A and FAGBULE V. RODRIGNES (2002) NWLR (Pt 765) 195 ratio 7.
That the amendment being sought is not one which will cure any defect in the suit but to have the court admit some documents. To learned Counsel to the Respondent, if the amendment is allowed it will cause undue delay in the hearing of the suit and bring injustice on the Respondent. That the applicant had been bringing application by instalments. He relied on the case of: NSTHOM S.A. VS. SARAKI (2002) FWLR (Pt 28) 2267 at 2282 – 2283 H – B.
That the amendment will lead to reopening of the case and raise fresh issues.
That the amendment ought not to be allowed. He relied on the cases of JANG VS DARIYE (2004) FWLR (PT.194) 412 at 434 D-E per AKINTAN JCA and HEATH CARE PRODUCTS (NIG) LTD VS BAZZA (2003) FWLR (pt 162) 1937 at 1954 C-D per SANUSI JCA.
It is the submission of 1st Respondent that the Applicant cannot rely on the principle that the mistake of counsel cannot be visited on the litigants. That the court is not a court of sentiments as according to Anyia Esq, a counsel owes his client a duty to make sure he conducts his client’s case to be best of his ability and that where a counsel fails to so do, the court has little or nothing it could do about it. He relied on the following cases:-
1. OYEWOLA VS. LASISI (2000) FWLR (Pt 10) 1606 at 1619 D-H and LONG-JOHN VS BLACK (1998) 5 SCNJ at 87.
L. E. ANYIA ESQ., then submitted thus:-
“We submit with respect that it is the duty of counsel to take care in the preparation of Court process. In this case my (sic) appellant’s counsel never took care in the preparation of his pleading which gave rise to the series of amendment and since this is the case counsel can not turn round to claim inadvertence.”
He relied o the case of FUMUDOH VS ABORO (1991) 9 NWLR (Pt. 214) 220 AT 225 D-F and finally urged the court to dismiss the appeal and refuse all the reliefs sought.
In reply on points of law the learned silk for the Appellant Umoh SAN in reaction to the 1st Respondent’s argument that the grant of the application to amend will cause undue delay in the determination of the suit the learned Senior Counsel submitted that cannot be a basis for refusal of application to amend and that it will militate against the need to give all the parties adequate opportunity to ventilate their grievances in court. He relied on the case of FBN PLC VS OBEYA (1998) 2 NWLR (PT 537) 205 at 218 – 219 G-A per OGUNTADE JCA (later JSC Rtd) and the case of AKANINWO vs NSIKIM (2008) 9 NWLR (Pt.1093) 494 C-G. He urged Court to hold that having regard to the facts and circumstances of this case, the amendment sought ought be granted. He relied on the case of OKUNDAYE VS TEXACO OVERSEAS (NIG. UNITED (2000) 6 NWLR (Pt.710) 730 at 732 1 Per IBIYEYE JCA and AWIRE VS ILEDU (2008) 12 NWLR (PT 1098) at 271 – 272.
Now there is no doubt that the appeal herein is against the exercise of discretionary power of the lower court to grant or refuse application for an amendment of pleadings. The main onslaught of the Appellant’s argument against the Ruling of the trial court is that the trial court wrongly and injudiciously exercised its discretion against the Appellant by basing its reasoning on the following:-
(a) That the application was one too many
(b) That if granted it will cause undue delay in the determination of the action.
(c) That the Plaintiff had closed his case four years before the application was brought by the appellant for amendment.
(d) That if the leave to amend was granted it would lead to reopening of Respondent’s case.
(e) That the grant of the application would frustrate the course of justice and defeats the end of justice.
Naturally the 1st Respondent stood firmly by all the reasons adduced by the learned trial Judge in refusing to exercise his discretion in favour of the Appellant.
Now what is discretion or a discretionary power?. What are the indices, factors or principles that will dictate how discretionary power of a Judge should be exercised when a litigant or a party approaches the court for the exercise of its discretionary power in his or her favour? The answer to all the above can be found in the case of CHIEF (DR) PERE AJUWA & ANOR VS THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD (2011) 18 NWLR (PART 1279) 797 At 828 H to 829 A-F per FABIYI JSC who said: –
In matters of judicial discretion, since the facts of two cases are not always the same, this court does not make it a practice to lay down rules or principles to fetter the exercise of its discretion or that of the lower courts.
In matters of discretion, no one case is authority for the other. A court cannot be bound by a previous decision to exercise its discretion in a regimented way, because that would be as it were, putting an end to discretion. See: AKUJINWA VS NWAONUMA (1998) 13 NWLR (PT 583) 632 at 647; ATTORNEY-GENERAL, RIVERS STATE VS UDE (2006) 17 NWLR (PT. 1008) 436 at 461; ODUSOTE VS ODUSOTE (1971) 1 ALL NLR 219 at 222.
Judicial discretion is a sacred power which inheres to a Judge. It is an armour which the judge should employ judicially and judiciously to arrive at a just decision. Same should not be left to the whims and caprices of a party to the section. It is not in tandem with the dictates of public policy which demands, inter alia, that administration of justice shall be discharged without any form of prompting by the parties.
Discretion had been defined to mean ‘a power or right’ conferred upon public functionaries by law of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. See: State v Whitman r. 11, 431 A 2d 1229, 1233: Black’s, Law Dictionary, Sixth Edition page 466.
It is clear that a judicial officer should exercise his discretion judicially and judiciously as well. See: University of Lagos vs Olaniyan (1985) 16 NSCC (Pt. 1) 98, 113, (1985) 1 NWLR (pt 1) 156; Eronini Vs Iheuko (1989) 2 NSCC (Pt. 1) 503, 313; (1989) 3 SC (pt.1) 30, (1989) 2 NWLR (pt. 101) 46.
Let me say it in passing that this court does not condone a situation where an earlier decision is capable of fettering the exercise of judicial discretion. Judicial discretion is a vital tool in the administration of justice. See: Adisa Vs Oyinwola (supra).”
In his own concurring judgment my Lord MUNTAKA – COMMASSIE, JSC had this to say on page 840 of he Report:-
“Therefore, can the lower court exercise its discretion without considering the material facts placed before it. If so can any appeal against the exercise of that discretion be a matter of pure law without reference to the facts considered by the lower court. In my view, the answer would be in the negative. Furthermore, in trying to unravel the questions stated above. I have searched for the meaning of the word “Judicial discretion” in Black’s Law Dictionary 8th Edition, edited by Bryan Garner at page 409, the word or phrase was defined as follows:-
“The exercise of judgment by a Judge or court based on what is fair under the circumstances and guided by the rules and principles of law, a court’s power to act or not to act when a litigant is not entitled to demand the act as a mutter of right”
Then in the New International Comprehensive Dictionary of the English Language – Encyclopaedia Edition at page 365, the word “discretion” was defined as –
“The act or the liberty of deciding according to justice and propriety, and one’s idea of what is right and proper under the circumstances without wilfulness or favour”.
Both dictionaries referred to the word – “circumstances” which means the facts or peculiar nature of the case which & Judge exercising its discretion would consider.
Thus, whichever way the appellants may put it, an appeal against the exercise of discretion by the lower court must involve the consideration of the “circumstances” in order to determine whether discretion, was judiciously exercised. Thus this appeal cannot therefore be said to involve the question of law alone, it must of necessity involve the consideration of the facts placed before the lower court.”
The same position was restated or reiterated in the case of PROFESSOR DUPE OLATUNBOSUN VS TEXACO NIGERIA PLC & ANOR (2012) 8 SCM 183 at 192 E-G where MAHMUD MOHAMMED JSC said:-
In this respect, whatever decision a court arrives at in such application entirely depends on the exercise of its discretion, taking into consideration the general principles of law governing the exercise of discretionary powers by the court and guided by the consideration of doing justice to all the parties to the dispute. In this regard, it is well settled that all judicial discretions must be exercised according to the common sense and justice in the matter. Where there is any miscarriage of justice in the exercise of such discretion, it is within the powers and competence of an appellate court to interfere and have that exercise of discretion reviewed, as was decided in the case of ABIODUN ODUSOTE VS OLAITAN ODUSOTE (1971) 1 ALL NLR 219 at 222.”
It is also necessary for me to bring to the fore the provisions of ORDER 26 Rules 1 – 3 of the High Court of Plateau State (Civil Procedure) Rules 1987 as amended in 1988 dealing with amendment at the trial court, which provide:
“ORDER 26
AMENDMENT
1. The Court or a Judge in Chambers may at any time, and on such terms as to costs or otherwise as the Court or Judge may think just, amend any defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings.
2. The Court or a Judge in Chambers may, at any stage of the proceedings allow either party to alter or amend his endorsement 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 Curt at the trial of the action, and such amendment may be allowed upon such terms as to costs or other wise as may be just”
It is apposite for the Court to examine the materials in form of Affidavit evidence placed before the lower court in order to find out whether the lower court judicially and judiciously exercised its discretion in this matter. The entire paragraph of Affidavit in support of the application of the Appellant to amend read thus:-
AFFIDAVIT IN SUPPORT
“I, Surayya Maigida Esq., Female, Muslim, Nigerian and Legal Practitioner in the law Firm of Solomon B. Umoh & Co., No. 10 Beach Road Jos, do make oath and state as follows:-
1. That by virtue of my position aforesaid, I am conversant with the facts deposed to hereunder and I have the consent and authority of the applicant as well as my employer to depose to this affidavit.
2. That after the last adjourned date when this suit came up for defence, counsel in chambers met in conference with the 1st defend ant/applicant.
3. That at the said conference, it was discovered that certain documents which were relevant to the applicant defence had not been pleaded.
4. That it was immediately decided that the applicant’s pleadings be amended to incorporate the said documents.
5. That the applicant’s Further Amended Statement of Defence has now been amended to incorporate the said documents. A copy of the 2nd Further Amended Statement of Defence is attached hereto and marked exhibit “A”).
6. That the amendment sought to be made by the applicant does not introduce any fresh facts.
7. That the amendment sought to be made would further bring out the real issues in controversy between the parties for a just and proper determination of this suit.
8. That the grant of this application would not prejudice the respondents in any manner whatsoever.
9. That the grant of this application would better serve the interest of Justice.
10. That I make this oath in good faith, conscientiously believing its content to be true and correct and in accordance with the Oaths Act 1990.”
The Counter Affidavit of the 1st Respondent in opposition reads thus:-
“COUNTER AFFIDAVIT OF THE PLAINTIFF
I, Victoria Adeniran, Female, Christian and a Nigerian citizen of No. 3 Tafawa Balewa Street, Jos do hereby make oath and state as follows:-
1. That I am a litigation secretary in the law firm of Anyia & Co., (Solicitors) based in Jos.
2. That by virtue of the above fact, I am conversant with facts herein deposed to.
3. I have the authority of my employers and the Plaintiff/Respondent to depose to this affidavit.
4. That he Plaintiff (peter Ebenighe) informed me at Anyia & Co., Jos, on the 5/10/2006 at about 4.00pm and I verily believe him as follows:-
a. That he has been shown a copy of the 1st Defendant/Applicant’s Motion on Notice dated 5th July, 2006.
b. That he filed a suit against the defendants on the 8/7/1999.
c. That himself and his witnesses has since testified and he had closed his case on the 14/11/2002
d. That 1st Defendant/Applicant opened his defence on 4/2/2004.
5. That I was informed by the counsel to the Plaintiff/Respondent (L. E. Anyia Esq.,) At Anyia & Co., Jos, on the 5/10/2006 at about 5.00pm, which information I verily believe as follows:-
a. That according to the Applicant’s counsel, the purpose of amending applicant 2nd further amended statement of defence is to enable applicant plead certain documents.
b. That the documents in paragraph 39(b) and (c) which the Applicant is seeking to incorporate in its further amended statement of defence are not relevant to this suit.
c. That Plaintiff has since close his case on the 14/11/2002.
d. That the applicant had ample opportunity to further amend his statement of defence before the plaintiff closed his case, he never did.
e. That the plaintiff will not have the opportunity of leading rebuttal evidence to the documents which the applicants intend to plead.
That if the 1st Defendant/Applicant application to further amend his Amended Statement of Defence is granted, the Plaintiff would be overreached, embarrass and it will spring surprise on the Plaintiff/Respondent.
6. That the grant of the application will surely prejudice the Plaintiff/Respondent in the sense that the Plaintiff had since closed his case and cannot respond to the documents pleaded in the 1st Defendant/Applicant proposed further amended statement of defence.
7. That this application is brought in bad faith and the refusal of same will not prejudice the applicant.
8. That I swear to this affidavit in good faith and in accordance with the oaths Act, 1990.”
It must be noted that the only thing the Appellant sought to add to his defence was to plead documents mentioned in the proposed 2nd further Amended Statement of Defence which was attached as Exhibit “A” to the Affidavit in support. The said paragraph 39 of Exhibit “A” – 2nd Further Amended Statement of Defence of 1st Defendant is as follows:-
“39 The 1st defendant hereby pleads and shall rely on the following documents:
(a) The Judgment of the High Court of Plateau State suit No. PLD/J535/99.
(b) The first Information Report in case No JUACI/25CR/99.
(c) Letter from the 2nd defendant to the Area Commander of the Nigeria Police Area Command Jos dated 7th April, 1999”
In the said Counter Affidavit of the 1st Respondent it was asserted in paragraph 5 (b) that the documents pleaded in paragraph 39 (b) and (c) are not relevant to the suit.
The learned trial Judge eloquently stated the principles governing amendment of pleadings on page 162 of the Record but on page 163 of the Record bemoaned the attitude of the Appellant in coming for amendment 4 years after the close of the Plaintiffs case and two years into opening of the Appellant’s defence.
That the amendment was not sought to bring pleadings in line with evidence but for purpose of admitting some documents and that he having applied to amend in the past, they had contributed to the delay in the disposal of this matter.
A calm perusal of the record of Appeal shows glaringly that the Appellant cannot be said to have being the sole cause of delay in the trial of this matter. The 1st Defendant’s application for extension of time to file defence was moved and granted on 6/4/2000. The matter was then fixed for 30/5/2000. On 30/5/2000, it was the Plaintiff who through his counsel that applied for an adjournment on 30/5/2000 on the instruction of L. E. Anyia Esq. The matter was then adjourned till 30/6/2000 for trial with N500 costs in favour of 1st Defendant (Appellant). On 30/6/2000 it was Zi Esq., for 2nd and 3rd Defendants who brought application to file 2nd and 3rd Defendant’s Defence out of time. On that date the case was adjourned till 20/7/2000 at the instance of 2nd and 3rd Defendants. On 27/7/2009, the court upon the grant of application of 2nd and 3rd Defendant allowed 1st Defendant to join issue with 2nd and 3rd Defendants. The matter was then adjourned till 12/10/2000 when the application of 1st Defendant to amend was not opposed and the case was adjourned till 12/12/2000. On 12/12/2000 it was the Plaintiff’s Counsel who again asked for a stand down to enable Anyia Esq., to appear but the court later adjourned till 20/2/01 for hearing on 20/2/01 when the hearing of the case commenced. When the matter came up for continuation of plaintiffs case on 13-11-2001, the then learned counsel to the 1st Defendant (Appellant) informed the court of his application to amend. The application was not opposed and same was granted. The learned counsel to the Appellant filed the further Amended statement of Defence of 1st Defendant on 16/11/2001. The 1st Respondent to this appeal concluded his case on 14/11/2002, a year after the Appellant amended his Statement of Defence.
The defendant opened his case on 11/3/2003. There was nothing on record to show that the Appellant applied for any amendment again until 6th day of July 2006. So that since 1999 whatever amendments were made only the one filed on 16/1/2001 took place after the hearing of the case commenced at the High court. It cannot be said that the amendments made up to 16/11/01 contributed to the delay in disposing of this matter. In effect there was no basis for the scurrilous statement of the learned trial Judge in his Ruling that:-
“The present application is one too many filed by the applicant, if it is granted, it will go a long way in further delaying this case as the respondent may end up re-opening his case or also amending his pleadings ”
By the above quoted portion of the Ruling appealed against the learned trial Judge has brought to bear on the exercise of his discretion extraneous matters bordering on speculations and sentiments all of which are not allowed at the alter of justice. The question he ought to have asked himself are well provided for in Order 26 of the Plateau State High Court (Civil Procedure) Rules 1987 as amended in 1988 which are:
(a) Is the application brought within the time permitted by the Rules.
(b) Is the amendment geared toward amendment of defect or error or other necessary amendments for the purpose of determing the real question or issue in controversy as raised by the parties.
(c) Will it be just to allow the amendment.
(d) Is the amendment material
(e) Is the amendment sought in good faith.
Once the Applicant in an application seeking amendment satisfies the court on all the above criteria the court will grant the amendment irrespective of whether the Applicant had obtained such indulgence many times before then. The trial Judge is given extensive and wide powers to ensure that justice is done to other parties in the case and that is the reason the Rules say the amendment may be allowed upon such terms as to costs or other wise as may be just. Other parties including the Plaintiff are entitled upon the grant of the amendment to seek to amend their own pleadings too or to reopen their own case if it has been closed to enable the Plaintiff or other party meet the case of respondent on the documents just pleaded or tendered.
In such situations it is the entitlement of Plaintiff or any other party to the proceedings if they are so advised by their counsel. Once an application to amend satisfies the factors or principles laid down for its grant it does not matter that it was brought after the close of Plaintiff’s case or even after the close of the Defendant’s case. What the court must look at is the doing of substantial justice to all concerned. Both in the counter Affidavit and the address of Learned Counsel to the 1st Respondent the Plaintiff never claimed he was going to be embarrassed or prejudiced by the amendment sought. All the Plaintiff is saying is that the documents are irrelevant. That can only be taken up at the point of their being tendered at the further hearing of the case. See (1) S. O. N. OKAFOR VS D. O IKEAYIÂ Â & ORS (1979) 1 Federation of Nigeria Law Reports 110 at 114-115 per Bello JSC who held:-
“The correct principle for the guidance of a Court in the exercise of its discretionary power under the Order was fully considered by this Court in Chief Ojah & Ors. V Chief Evo Ogboni & Ors. (1976) 4 S.C.69. It was stated in that case that an amendment of plaintiff for the purpose of determining the real questions in controversy between the parties ought to be allowed unless such amendment will entail injustice or surprise or embarrassment to the other party or the applicant is acting mala fide or by his blunder the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise. In other words, the discretion ought to be exercised to as to do what justice and fair play may require in the particular case.
We agree with learned Counsel for the appellant that the amendment sought in the case in hand did not take the respondents by surprise for the respondents knew it, as shown by the closing address of their Counsel at the trial, to be the foundation of the appellant’s case. Furthermore, the publication had been admitted in evidence. The object of the amendment was to comply with the rule of pleading. We cannot see what injustice would have been done to the respondents by such compliance. On the other hand, as the learned Judge had known that the appellant’s case could not stand without the amendment, it was not just and fair to the appellant to refuse him the amendment simply because the learned Judge had written his judgment Under the circumstances of the case we think that the learned Judge erred in the exercise of his discretion. He ought to have granted the amendment. However, for reasons which we will state in the ensuing grounds of appeal we shall not interfere with the final judgment of the learned Judge.”
It is also relevant here to refer to the decision of this court in the case of SAMUEL OLORO & ORS V. BOLUNWAJI FALANA & ORS (2011) 17 NWLR (PART 1275) 207 at 217 B-G per ABBA AJI, JCA, who read the leading judgment held:-
“The issue now is, what is an amendment in our civil procedure law? I do not intend to go into academics, but the word ‘amendment’ has been interpreted by the Supreme Court, in a number of case. In the case Chief Adedapo Adekeye & Ors. Vs Chief Akin-Olugbade (1987) 3 NWLR (Pt.60) 214 at 223 paras. E.F.; (1987) 6 SCNJ 127 at 135, per Oputa, J.S.C., the apex court interpreted amendment thus:-
“An amendment is nothing but the correction of an error committed in any process, pleading or proceeding at law or in equity and which is done either as of course or by the consent of parties or upon notice to the court in which the proceeding is pending.”
Therefore courts have very wide discretion in granting or refusing the grant of an amendment be it of pleadings, proceedings or even any notice of appeal based on an established principle that the fundamental object of adjudication is to decide the rights of the parties and not impose sanctions merely or mistakes made by the parties in the conduct of their cases by deciding otherwise than in accordance with their right. In deciding whether to allow amendment or not, the court must exercise its discretion judicially and judiciously. Therefore the primary consideration should always be whether the amendment sought is for the purpose of determining in the existing suit, the real question or questions in controversy between the parties. It is now settled that however negligent or careless, the amendment may have been, however late the proposed amendment, it should be allowed so long as it can be done without prejudice to the other side. An amendment should also be granted unless it will entail injustice to the respondent or the applicant is acting mala -fide, and, a court will not refuse an amendment simply because it introduces a new cause but would only refuse where amendment will result in a complete change of action into one of substantially different character.”
The fears exhibited by the 1st Respondent in the Counter Affidavit sworn on his behalf on 12/10/2006 are that
(a) Having closed his case he will not have opportunity to reopen the case to lead rebuttal evidence to the documents.
(b) The amendment would overreach surprise and embarrass him
The facts and circumstances of this case are such that the Respondent cannot be denied opportunity of leading a rebuttal evidence. The amendment cannot even overreach, surprise or embarrass him. The reason are these;
1. The Respondent has by paragraph 5 (b) of the Counter Affidavit that Respondent was of the view that the documents are irrelevant. It is for the court to decide the relevance or otherwise of a documents.
2. By paragraph 5 (b) of the Counter Affidavit the Respondent was of the view that the documents are irrelevant. It is for the Court to decide the relevance or other wise of a document.
3. An amendment could be made and allowed at a very late stage of the proceeding even at address stage once the purpose will meet the end of justice. See JAMES V. OGUNTIMEYIN VS KPEKPE GUBERE & ANOR (1964) 1 ALL NLR 176.
The learned trial Judge ought to have allowed the amendment sought as there is nothing in the record of appeal to show that the 1st Respondent would suffer any injustice since he would be at liberty to lead rebuttal evidence. The learned Counsel to the 1st Respondent in Respondent’s Brief admitted that the learned Counsel to the Appellant was not careful enough in the preparation of the Appellant’s pleading leading to incessant applications on the part of the Appellant to amend. He had submitted thus:-
“We submit with respect that it is the duty of Counsel to take care in the preparation of court process. In this case my (sic) Appellant’s Counsel never took care in the preparation of his pleading which gave rise to the series of amendments and since this is the case counsel can not turn around to claim inadvertence”
To me this is the more reason why the appellant should not be made to suffer for the tardiness or omission of his Counsel to do the needful in the preparation of his defence. The mistake or the carelessness is one that can be remedied by the application of the Appellant. The right of the 1st Respondent cannot be jeopardized if the amendment is granted See:- CHIEF ADEDAPO ADEKEYE & ORS VS CHIEF O. B. AKIN-OLUGBADE (1987) 3 NWLR (PART 60) 214 at 223 E-H TO 224 A where OPUTA, JSC held:-
“An amendment is nothing but the correction of an error committed in any process, pleading or proceeding at law or in equity, and which is done either as of course or by the consent of parties or upon notice to the Court in which the proceeding is pending. The object of Courts is to decide the rights of the parties and not to punish them for mistakes they may make in the conduct of their cases by deciding otherwise that in accordance with their rights.
There is no kind of mistake or error which if not fraudulent or intended to over-reach, the Courts cannot correct, if this can be done without injustice to the other party. Blunders may occur and nowadays they do occur with disturbing regularity, but all the same the Courts should not be stampeded into chasing the shadows of these blunders rather than facing the substance of the justice of the case.
The aim of an amendment is usually to prevent the manifest justice of a cause from being defeated or delayed by formal slips which arise from the inadvertence of counsel. It will certainly be wrong to visit the inadvertence 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 slips, however late the proposed amendment, it ought to be allowed, if this can be done without injustice to 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.”
On the state and times amendment could be allowed See Adekeye Vs Akin-Olugbade Supra where my Lord OPUTA JSC lucidly said:-
“The Court should allow all amendments that are required for the purpose of using already available evidence and what is more using the findings of fact of the trial Court. The Court does not set a time limit to do justice and in the same vein it does not or perhaps also cannot set a time limit to grant an amendment designed to achieve justice between the parties. In William Rain V Alexander Bravo (1872) L.R.4P. C.a.287 the application to amend was made when the Judge was reading his judgment. It was refused by the trial Judge but it was ultimately granted by the Privy Council. The main concern of the Court in granting or refusing to grant an amendment is the interest of justice. All amendments ought to be granted if there by justice is done between the contending parties.The court below acted rightly in granting the amendment sought. Grounds 3 therefore fails. Ground 2 which also dealt with the Amendment also fails.”
Consequently the Appellant’s appeal is meritorious. I hereby allow the appeal. The decision of the High court of Justice Plateau State contained in the ruling of Honourable Justice Y. G. Dakwal and delivered on February, 7, 2007 is hereby set aside. An order is hereby made granting the Appellant leave to amend his further Amended statement of Defence in terms of his motion papers dated 5th day of July, 2006, filed on 6th day of July 2006 and as per Exhibit “A” attached to the Affidavit in support of the said motion papers filed on 6th day of July, 2006.
It is further ordered that the 2ND FURTHER AMENDED STATEMENT OF DEFENCE ALREADY FILED AT THE LOWER COURT’S REGISTRY ON 6th day of July, 2006 already served is hereby deemed to have been properly filed and served, necessary fees having been paid. Costs of N30,000.00 is awarded to 1st Respondent against Appellant on the amendment granted.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I agree.
IBRAHIM SHATA BDLIYA, J.C.A.: I have read in draft the reading judgment of my learned Brother, IGE, J.C.A. I entirely agree with his lordship’s reasonings and conclusion that the appeal is meritorious and should be allowed. I abide by the orders of my Lord contained in the leading judgment.
Appearances
SOLOMON UMOH (SAN), with D. N. GWACSON ESQ., M. P. MWANSAT ESQ., and C. OGILI ESQ. For Appellant
AND
L. E. ANYIA ESQ., with A. M. MAIJIMI ESQ., and A. R. DASOEM ESQ., for the 1ST RESPONDENT
Y. N. JWANDER (MRS) ESQ., ACSC, Ministry of Justice, Plateau State, for the 2nd & 3rd RESPONDENTS For Respondent
