SAVANNAH CHEMICAL INDUSTRIES LIMITED v. ECONOMIC AND FINANCIAL CRIMES COMMISSION & ANOR (2019)

SAVANNAH CHEMICAL INDUSTRIES LIMITED v. ECONOMIC AND FINANCIAL CRIMES COMMISSION & ANOR

(2019)LCN/12996(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/L/713/2018

JUSTICES

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

TOBI EBIOWEI Justice of The Court of Appeal of Nigeria

Between

SAVANNAH CHEMICAL INDUSTRIES LTD Appellant(s)

AND

1. ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC)
2. GUARANTEE TRUST BANK Respondent(s)

RATIO

WHETHER OR NOT THE COURT HAS THE INHERENT POWERS TO GRANT OR REFUSE AN APPLICATION BEFORE IT

It is trite that this Court has inherent powers to grant or refuse an application by a party before it; however, these discretionary powers of the Court must be judicially and judiciously exercised in the light of the facts and circumstances of each case. See ABAH Vs. MONDAY & ORS (2015) LPELR-24712 (SC) Pg. 31-33, Paras. D ? G where OGUNBIYI JSC held that: ?There is a bounden duty on the Court to hear all applications pending before it whether they be frivolous or even an outright abuse of the process of Court. It is by hearing the parties that the Court will be in a position to determine the nature of application.?
My law Lord further held particularly on exercise of discretion in the said judgment as follows and I quote:
?I have said earlier that an exercise of discretion is within a Court?s competence and purview. The rider is however also pertinent that an exercise of such discretion must be with caution taking into consideration all materials placed before the Court. In other words, it must be judicious and judicial for the purpose of maintaining the balance or equilibrium of justice?.

THE GUIDING PRINCIPLES APPLICABLE TO THE GRANT OR REFUSAL OF LEAVE TO AMEND PROCESSES

The Courts have over time evolved guiding principles applicable to the grant or refusal of leave to amend processes, the principles are found in seemingly endless judicial decisions. See SALISU & ANOR Vs. MOBOLAJI & ANOR (2013) LPELR-22019 (SC) Pg. 20-21, Paras. B ? B; GOMBE STATE CO-OP, SAVINGS & LOANS LTD Vs. GTB PLC & ORS (2018) LPELR-44090 (CA) Pg. 10-12, Paras. F ? B. In FBN PLC Vs. MAY MEDICAL CLINICS & DIAGNOSTICS CENTRE LTD & ANOR (2001) LPELR-1282 (SC) Pg. 27, Paras. A ? D the Supreme Court of Nigeria per UWAIFO JSC stated the purpose of an amendment and highlighted the factors to be taken into consideration by a Court faced with an Application for amendment; My Law Lord held as follows;
?The purpose of such an amendment must be to ensure that the complaints of the appellant against the proceedings in question are laid and ventilated before the Court. The fact that briefs of argument have been filed and exchanged and an appeal is virtually ready for hearing will not prevent the Court from exercising its undoubted discretion to allow an amendment both to the notice and grounds of appeal and the brief of argument so long as the amendment would serve the ends of justice and fairness, and the other party can be compensated by costs.?(Underlining by mine). PER ABUBAKAR, J.C.A.

THE DUTY OF THE COURT WHERE THERE ARE TWO APPLICATIONS BEFORE IT

It is an age long principle of law that where there are two Applications before the Court, one seeking to rectify the defect in the process and the other seeking to nullify the process, the Court will in the interest of justice consider the Application seeking to correct the defect first, it is a matter of common sense, prudence, justice and equity, this is an established principle in priority of applications. See BCE CONSULTING ENG Vs. NNPC [2004] 3 NWLR (Pt. 859) 1; (2003) LPELR-7206 (CA) Pg. 12-13, Paras. G ? B; OBI Vs. OGUNBIYI (2012) LPELR-7984 (CA) Pg. 25, Paras. B ? G and AKITI Vs. OYEKUNLE (2018) LPELR-43721 (SC) Pg. 8-12, Paras. D ? B where my Law Lord RHODES-VIVOUR, JSC held that:
?…where there are two applications before the Court, one to dismiss the case for not taking necessary steps and the other ?for extension of time, or leave to take necessary steps to regularize the suit, the motion which would allow the Court to pursue substantial justice would be heard first. This procedure has its roots in common sense, prudence and equity, and if such a procedure is followed cases would be resolved on the merits rather than on technicalities. PER ABUBAKAR, J.C.A.

TIJJANI ABUBAKAR, J.C.A.(Delivering the Lead Ruling): This is an application brought pursuant to Order 7 Rule 8 of the Court of Appeal Rules 2016 filed by the Appellant/Applicant herein, praying for;
1. AN ORDER granting the Appellant/Applicant leave to amend the Appellant?s brief of argument dated 21st June 2018, by substituting same with the Amended Appellants brief dated 3rd September, 2018.
2. AN ORDER, deeming the Amended Appellant brief of argument dated 3rd September 2018 already filed and served on the Respondents as properly filed and served.
3. AND for such further order(s) the honorable Court may deem fit to make in the circumstance.

The Applicants Application is also premised on four grounds as set out in the Motion Paper. The grounds for the application are as follows:
1. The Appellant filed and served on the Respondents Appellant?s brief of argument dated 21/6/18. In the said Appellants brief of argument, the Appellant canvassed three issues for determination of the Court which the Appellant believed were distilled from the grounds of appeal.
?2. On a later re-scrutiny of the said process,

I discovered that part of the augments canvassed under issue one which was distilled from the grounds 1, 2 and 5 of the Notice of appeal was also argued under the second issue for determination distilled from the grounds 3 and 4.
3. On further re-scrutiny of the said processes, it was also discovered that the third issue raised in the appellant?s brief of argument was not specifically distilled from any of the existing 5 grounds of appeal as intended.
4. For the above reasons details of which are encapsulated in the affidavit in support of this applications, the appellant seeks to amend the aforesaid appellants brief of argument to same clear concise and unambiguous.

?The Applicants/Application is supported by an 11 paragraph Affidavit sworn to by one Emmanuel Ojimba on the 24th day of September, 2018. Attached to the Affidavit as exhibit is the Proposed Amended Appellant?s Brief of Argument dated the 3rd day of September, 2018. The Applicant through learned Counsel Ojimba on the 29th day of November 2018 filed written address. In the said written address learned counsel identified a sole issue for determination reproduced in this ruling

as follows:
Whether the honorable Court can in the circumstances grant the amendment sought by the Applicant.

The 2nd Respondent in opposition to the Appellant Applicants Application filed a Counter Affidavit on the 18th day of October, 2018 and a Written Address on the 24th day of January, 2019 through learned counsel Chief Adewale Adeniji. The 2nd Respondent?s counsel on the other hand equally distilled a sole issue for determination reproduced as follows:
Whether the 2nd Respondent will not be overreached, and therefore prejudiced by the granting of this application?

SUBMISSIONS OF COUNSEL FOR THE APPELLANT/APPLICANT
Learned counsel for the Appellant/Applicant referred to the Black?s Law Dictionary, 8th Ed., Pg. 89; AWOTE Vs. OWODUNNI [1986] 5 NWLR (Pt. 46) Pg. 941; CHIEF ADEDAPO ADEKEYE Vs. CHIEF O.B. AKIN OLUGBADE [1987] 6SC 268 at 280-281; CROPPER Vs. SMITH [1884] 26 QBD 700 and OKEOWO Vs. MIGLIORE [1979] 11 SC 138 to submit that amendment, which sometimes may mean substitution is ubiquitous in Court adjudication as a result of the fallibility of man in the process of writing documents; and that the reason for

amendments in an existing suit is to determine the real question in controversy between the litigating parties. Counsel further relied on OJAH Vs. OGBONI [1976] FSC 69; ADELEKE Vs. AWOLIYI [1962] 1 All NLR 260; EZE Vs. ENE [2017] 12 NWLR (Pt. 1579) Pg. 313; OGUNTIMEYIN Vs. GUBERE [1964] All NLR 169; GOWON Vs. IKE-OKONGWU [2003] 1 SCNJ 452 and OKAFOR Vs. IKEANYI (1979) 3-4 SC 99 to contend that the Court will allow an amendment where the Applicant is not acting mala fide and it will not entail injustice to the Respondent. It was further argued that amendment will be granted if it relates to a misnomer; does not change the nature of the claim; will cure the defects in the proceedings; and will not embarrass or surprise the opponent in the proceedings.

Learned counsel relied on UGWU Vs. ARARUME [2007] 12 NWLR (Pt. 1048) Pg. 367 at 513 and ADEGOKE MOTORS LTD Vs. ADESANYA [1989] 5 SC 113 to submit that the Appellant?s counsel admitted in the Affidavit in support of this Application that he made errors in the Appellants? Brief; counsel further cited WASSAH Vs. KARA [2015] 14 NWLR (Pt. 1480) Pg. 569 to submit that the law will not allow the sins

of counsel to be visited on the innocent litigants. Learned counsel relied on AKANINWO Vs. NSIRIM [2008] 9 NWLR (Pt. 1093) Pg. 439 at 475 to contend that the mistake in the Appellant?s Brief which the Appellant?s counsel admitted to have made and now seek to amend does not fall within the perimeters of mala fide. Learned counsel further cited YUSUF Vs. ADEGOKE [2007] 4 SCNJ 103 and AKANINWO Vs. NSIRIM (Supra) to submit that the 2nd Respondent will not be overreached by the amendment to the Appellant?s Brief.

Learned counsel referred to SHANU Vs. AFRIBANK [2000] 13 NWLR (Pt. 684) Pg. 392 at 404; NALSA & TEAM ASSOCIATE Vs. NNPC [1991] 8 NWLR (Pt. 212) Pg. 652 and ANI Vs. EFFIOK [2011] 8 NWLR (Pt. 1567) Pg. 281 to contend that the law gives a party in blunder the license to correct a process notwithstanding an objection raised by the adversary to its competence. Counsel argued that the amendment sought does not demolish or erode the kernel of the Respondents? case because the Respondents still have ample opportunity and are equally at liberty to amend their Briefs to neutralize any new point raised in the Amended

Appellant?s Brief. Learned counsel cited FBN PLC Vs. MAY MED. CLINICS [2001] 9 NWLR (Pt. 719) Pg. 28 at 44 to contend that the fact that parties had exchanged Briefs of Argument is not sufficient ground to refuse the grant of this application. Counsel submitted that all the objections raised by the Respondent against the grant of this Application cannot stand in the face of the judicial authorities cited by the Appellants herein. Learned counsel submitted that the Appellant has shown sufficient reasons for this Court to exercise its discretion in favor of this Application; and that it would meet the ends of justice to allow this application; counsel so urged this Court.

SUBMISSIONS OF COUNSEL FOR THE 2ND RESPONDENT
Learned counsel for the 2nd Respondent submitted that while amendment can be made, the particular amendment sought in the instant case will work injustice against the 2nd Respondent because it falls within the exceptions to the general rule on the right to amend. Counsel argued that the Supreme Court did not express the opinion contained in the quotation referred to by the Appellant/Applicant?s counsel as that of the Court in

the case of CHIEF ADEDAPO ADEKEYE Vs. CHIEF O.B. AKIN OLUGBADE (Supra). Counsel referred to Grounds 1, 2 and 3 stated in the Application to contend that by this Application, the Appellant/Applicant is seeking to rewrite its Brief. Learned counsel referred to CHIEF EDMUND AKANINWO & ORS Vs. CHIEF O. NSIRIM & ORS [2008] 1 SC (Pt. III) Pg. 142 at 199, Lines 14-27 and argued that given the date on the Application; the Appellant/Applicant sought for the proposed amendment of its Appellant?s Brief after the Respondent?s Brief of Argument which contained a Preliminary Objection against the issues raised in the Appellant?s had been served on the Appellant/Applicant; counsel submitted that the Application is therefore prejudicial and in bad faith and is intended to overreach that 2nd Respondent?s preliminary objection.

?Learned counsel argued that the Appellant/Applicant acted in bad faith and that the Application, if granted will do injury to the 2nd Respondent which cannot be compensated in costs. Counsel further referred to paragraphs 4, 5, & 6 of the Affidavit in support of the Application deposed to by the

Appellant?s counsel and argued that the errors sought to be amended were the Appellant/Applicant?s own error albeit by counsel who prepared the brief. On the whole counsel urged this Court to refuse and dismiss the Appellant/Applicant?s Application because it is lacking in merit on the ground that it will overreach and prejudice the 2nd Respondent.

RESOLUTION
I have carefully read the arguments of learned Counsel for the Appellant/Applicant in support of this Application as well as the submissions of learned Counsel for the 2nd Respondent in opposition, it appears to me that the issue central to the determination of this application is as crafted by the learned Counsel for the Appellant/Applicant, that is: ?Whether the honorable Court can in the circumstances grant the amendment sought by the Applicant.” In determining this issue, the question of ?whether the 2nd Respondent will not be overreached, and therefore prejudiced by the granting of this application” will also be considered and determined. In effect therefore the issues will be collapsed into one, ?whether this Court can in the circumstance grant the

amendment sought by the Applicant?.

equilibrium of justice?.

grounds of appeal and the brief of argument so long as the amendment would serve the ends of justice and fairness, and the other party can be compensated by costs.?(Underlining by mine).
From the foregoing settled position of the law which has been re-echoed in several decisions of this Court and the Supreme Court, it is not in doubt that this Court can exercise its discretion to grant leave to the Appellant/Applicant to amend its Appellant?s Brief notwithstanding the fact that the 2nd Respondent has already filed its Brief. The depositions in the Affidavit in support of the instant Application as well as the grounds for the Application as set out on the face of the Motion align and conform with the purpose of amendment as stated by the Supreme Court in SALISU & ANOR Vs. MOBOLAJI & ANOR (Supra) which is to: ?ensure that the complaints of the appellant against the proceedings in question are laid and ventilated before the Court.? For purposes of emphasis, even though the grounds for this application have been reproduced earlier in this ruling, I will reproduce them again to keep the records straight, the grounds are once

again reproduced as follows:
1. The Appellant filed and served on the respondents Appellant?s Brief of Argument dated 21/6/18. In the said Appellant?s Brief of Argument, the Appellant canvassed three issues for determination of the Court which he believed were distilled from the grounds of appeal.
2. On a latter re-scrutiny of the said process, I discovered that part of the Argument canvassed under issue one which was distilled from the grounds 1, 2 and 5 of the Notice of appeal was also argued under the second issue for determination distilled from the grounds 3 and 4.
3. On further re-scrutiny of the process, it was also discovered that the third issue raised in the Appellant?s Brief of Argument was not specifically distilled from any of the existing 5 grounds of appeal as intended.

?In the Affidavit in support of the said Application, the learned counsel for the Appellant/Applicant who made the depositions at paragraphs 3 ? 10 therein stated as follows:
3. That the Appellant filed and served on the respondents Appellant?s Brief of Argument dated 21/6/18.
4. In the said Appellant?s Brief of Argument

the Appellant canvassed three issues for determination of the Court which he believed were distilled from the grounds of appeal.
5. That on a latter re-scrutiny of the said process, I discovered that part of the Argument canvassed under issue one which was distilled from the grounds 1, 2 and 5 of the Notice of appeal was also argued under the second issue for determination distilled from the grounds 3 and 4.
6. That on further re-scrutiny of the process, it was also discovered that the third issue raised in the Appellant?s Brief of Argument was not specifically distilled from any of the existing 5 grounds of appeal as intended.
7. That the amendment sought by the Appellant in the aforesaid Appellant? s Brief of Argument is necessary for the determination of the Appeal on its merit and not on technicalities and to make the arguments canvassed therein clear, concise and unambiguous.
8. That the error sought to be corrected by this application were not deliberate but as a result of inadvertence on the part of counsel?
9. That the respondents will not be prejudiced if the application is granted
10. That it will be in the

interest of justice to grant this application.

From the foregoing therefore, it is clear that the purpose of the amendment sought by the Applicant is to properly place down the complaints of the Appellant/Applicant against the judgment appealed against. It appears that the 2nd Respondent is not ordinarily opposed to an amendment; its only grievance is that it has filed its Respondent?s Brief which contains a Preliminary Objection. Counsel for the 2nd Respondent argued that the grant of this Application will prejudice and overreach the 2nd Respondent because the grounds upon which the Appellant/Applicant seeks to amend its Brief are the grounds upon which the 2nd Respondent?s Preliminary Objection was based and that the Appellant?s Application came after the Appellant/Applicant had been served with the 2nd Respondent?s Brief containing the Notice of Preliminary Objection.
However, contrary to the submissions of learned Counsel for the 2nd Respondent granting this Application in my opinion does not overreach the 2nd Respondent. The said Preliminary Objection was raised, against some of the issues in the

Appellant/Applicant?s Brief and not against the competence of this Court to hear the appeal or against the competence of the Appellant/Applicant to file this appeal. See NIGERIAN ELECTRICITY REGULATORY COMMISSION Vs. ADEBIYI (2017) LPELR-42903 (CA) Pg. 10-12, Paras. D ? B and AKEREDOLU Vs. MIMIKO & ORS (2013) LPELR-21413 (SC) where NGWUTA, JSC stated that:
?A preliminary objection is a pre-emptive strike aimed at scuttling the entire appeal in limine. If the Objection is raised against particular grounds of appeal as is the case before us, the intention is to prevent the Court from considering the issues raised from the grounds objected to in the determination of the appeal (Underlining mine).
Therefore, the end result of the Preliminary Objection of the 2nd Respondent, if it succeeds is to take out the affected or incompetent issues; the appeal will still be heard and determined on the surviving issues, this is even where the surviving is one. That being so, why then must this Court refuse to grant an Application to amend the Appellant/Applicant?s Brief which is aimed at serving the same purpose which the

preliminary objection seeks to the achieve? At the end of the day. It is an age long principle of law that where there are two Applications before the Court, one seeking to rectify the defect in the process and the other seeking to nullify the process, the Court will in the interest of justice consider the Application seeking to correct the defect first, it is a matter of common sense, prudence, justice and equity, this is an established principle in priority of applications. See BCE CONSULTING ENG Vs. NNPC [2004] 3 NWLR (Pt. 859) 1; (2003) LPELR-7206 (CA) Pg. 12-13, Paras. G ? B; OBI Vs. OGUNBIYI (2012) LPELR-7984 (CA) Pg. 25, Paras. B ? G and AKITI Vs. OYEKUNLE (2018) LPELR-43721 (SC) Pg. 8-12, Paras. D ? B where my Law Lord RHODES-VIVOUR, JSC held that:
?…where there are two applications before the Court, one to dismiss the case for not taking necessary steps and the other ?for extension of time, or leave to take necessary steps to regularize the suit, the motion which would allow the Court to pursue substantial justice would be heard first. This procedure has its roots in common sense, prudence and equity, and if such

a procedure is followed cases would be resolved on the merits rather than on technicalities

In the circumstance therefore, I am of the view that the end of justice will be better served if the Appellant/Applicant is granted leave to amend its brief so that the Appellant/Applicant?s case can be placed before the Court clearly, concisely and unambiguously. In my view, the 2nd Respondent will not be prejudiced if the Appellant/Applicant is granted leave to amend its Brief since the 2nd Respondent is not foreclosed from responding to the issues raised in the Amended Appellant?s Brief of argument. In the light of the foregoing therefore, I find the Appellant/Applicant?s Application meritorious and same is hereby granted by me. Leave is hereby granted to the Appellant/Applicant to substitute the Appellant?s Brief dated 21st June, 2018 with the Amended Appellant?s Brief dated 3rd of September, 2018. The Amended Appellant?s brief filed on the 24th day of September 2018 is deemed as properly filed and served today.

?Cost of N100,000 is awarded to the Appellant /Applicant against the 2nd Respondent.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The lead Ruling of my learned brother, Tijjani Abubakar. JCA. which has just been delivered was made available to me in draft.

I am allegiant to the reasoning and conclusion in the said lead Ruling that the grant of the application to amend the Appellant’s Brief will conduce to the Appellant’s grievance being adequately ventilated. I adopt the reasoning and conclusion in the lead Ruling as mine. I have nothing further to add.

Accordingly, I agree that the application has merit and equally grant the same on the terms set out in the lead Ruling. I abide by the consequential orders made in the lead Ruling inclusive of the order as to costs.

EBIOWEI TOBI, J.C.A.: I have read in draft the judgment of my learned brother, TIJJANI ABUBAKAR, JCA just delivered. I agree with him and abide by the judgment and order made.

Appearances:

E.Ojimba
For Appellant(s)

E.F.O. Ogunbanwo with him, U. C. Ekengo for the 2nd RespondentFor Respondent(s)

Appearances

E.OjimbaFor Appellant

AND

E.F.O. Ogunbanwo with him, U. C. Ekengo for the 2nd RespondentFor Respondent