CHIEF ALHAJI (HON.) SHEIDU JIMOH OSHIOKE v. SALAMI OARE (2019)

CHIEF ALHAJI (HON.) SHEIDU JIMOH OSHIOKE v. SALAMI OARE

(2019)LCN/13022(CA)

In The Court of Appeal of Nigeria

On Thursday, the 4th day of April, 2019

CA/B/22/2018

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

CHIEF ALHAJI (HON.) SHEIDU JIMOH OSHIOKE Appellant(s)

AND

SALAMI OARE Respondent(s)

RATIO

THE PRINCIPLES GUIDING THE AMENDMENT OF PLEADINGS

The law is settled on how and when parties can amend their pleadings. See AKANINWO & ORS V NSIRIM & ORS (2008) 9NWLR PT. 1093 p. 439 TOBI JSC. (of blessed memory) explained the principles guiding the amendment of pleadings thus:
?In an application for amendment of pleadings, the Court will take into consideration a number of principles or factors including
a) The attitude of the parties in relation to the amendment.
b) The nature of the amendment sought in relation to the suit.
c) The question in controversy
d) The time when the amendment is sought.
See ALSTHOM S.A. V CHIEF DR. SARAKI (2000) 14 NWLR (PT. 687) 415. Although the attitude of the respondent may in certain instances be an important consideration the attitude of the applicant is the major consideration. In this regard the Court must be satisfied that the application is brought bona fide or in good faith and not designed to abuse the Court process. In dealing with the nature of the amendment, the Court will take into consideration the totality of the content of the amendment sought vis-a-vis the relief or reliefs sought in the matter. See also EZE V ENE & ANOR (2017) LPELR 41916 (SC).
OGUNBIYI JSC in CCG (NIG) LTD & ANOR V IDORENYIN (2015) LPELR ? 24685(SC) explained the principles in another way as follows:
?The general principle of law is ancient and very well settled that an amendment in a pleading can be sought and made at any stage of a proceedings before judgment. See the old English decision of CROPPER V SMITH (1884) 26 CH D 7?at 710 ? 711 where L.J. observed and said ? I know of no kind of error or mistake which if not fraudulent or intended to overreach the Court ought not to correct; if it can be done without injustice to the other party the purpose for allowing such privilege is to enable parties conduct their cases properly by placing before the Court all relevant facts necessary for the just determination of disputes between them. The caveat however is that any application which seeks to either overreach the other party or alter the nature of the applicants case will not be allowed. PER AWOTOYE, J.C.A.

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment):? This is the judgment in respect of the appeal filed by the claimant in Suit No. HAU/56/2014 Between ALH. (HON.) SHEIDU JIMOH OSHIOKE V. SALAMI OARE challenging the decision of Edo State High Court delivered on 15/11/17.
The Claimant?s claim at the lower Court as per paragraph 9 of his Statement of claim reads;
?Whereof the claimant claims from the defendant the sum of N100,000,000.00 as per general damage for defamation of character (slander)?.

Parties filed and exchanged pleadings. The learned trial judge commenced hearing of the parties after the case had been adjourned for adoption of written submissions, the claimant applied to amend his statement of claim to set out the names of the persons to whom the defamatory words were uttered in the statement of claim.
After listening to both sides the learned trial judge held inter alia as follows:
?In dealing with the nature of the amendment, the Court will take into consideration the totality of the content of the amendment sought vis a vis the relief or reliefs sought in the

matter . the time or stage of the case when the application for amendment was brought is also an important consideration. And here, the Court should take into consideration whether the applicant brought the application at the earliest opportunity in the proceedings.
In the present case, I agree with the learned counsel for the Defendant. A counsel who brought an application to amend his pleadings to counter an issue raised in the opponent?s address cannot be acting bona fide. If granted, such an amendment will certainly force the Defendant to prepare another address or even asked for recall of claimant?s witnesses.
The amendment sought is clearly intended to circumvent or outwit the Defendant.
I am therefore satisfied that if I were to grant such an amendment it would certainly overreach the Defendant.
I hold in the circumstance that this application is unmeritorious. It ought to be dismissed and is accordingly dismissed.?
Dissatisfied with the above ruling the Appellant filed Notice of Appeal to challenge it on three grounds.

GROUNDS OF APPEAL
The learned trial judge erred in law, thereby

occasioned a miscarriage of justice when he held as follows:
1. A counsel who brought an application to amend his pleadings to counter an issue raised in the opponent?s address cannot be acting bona fide if granted, such an amendment will certainly force the defendant to prepare another address or even ask for recall of Claimant?s witnesses.
The amendment sought is clearly intended to circumvent or outwit the defendant. I am therefore satisfied that if I were to grant such an amendment, it would certainly overreach the Defendant. I hold in the circumstance that this application is unmeritorious. It ought to be dismissed and is accordingly dismissed.
PARTICULARS OF ERROR
I. That proceedings in this case is at address stage.
II. That the Appellant brought this application to amend his pleadings bonafide because he made some mistakes in the preparation of Appellant pleadings.
III. That before the Appellant brought his application before the trial Court to amend his pleadings, the Appellant?s three witnesses, namely, Alhaji Beshiru Musa, Ifeoma Chimebele and Alhaji Abdullai Adamu Musah had already testified and

given evidence before the trial Court to the effect that they were present at the scene and heard the Respondent uttered and published the slanderous words against the Appellant.
IV. That the amendment sought for by the Appellant at the trial Court was to plead only the names of Alhaji Beshiru Musah, Ifeoma Chimebele and Alhaji Abdullai Adamu Musah in the amended statement of claim as the persons who were present at the places who heard the Respondents uttered and published the defamatory words (i.e slander) against Appellant.
V. That such amendment of pleading at the trial Court was necessary so that the Appellant statement of claim will accord with or in line with the evidence of the Appellant?s three witnesses which was already in the trial Court?s record.
VI. That such amendment if granted could not change the character of this case as the case which is slander would have remained a case of slander, no more no less. Be that as it may, there was no need for the Respondent?s counsel to ?prepare another address? or ?ask for recall of claimant?s witnesses? whom he had already cross-examined openly

in the trial Court and the Appellant was not prepared to call fresh additional witnesses.
VII. That the trial Court merely speculated or conjectured when he concluded that the Appellant acted malafide or ?intended? to circumvent or ?outwit? or ?overreach the defendant? when there was no iota evidence in the trial Court?s Record to support this erroneous finding.
VIII. The learned trial judge?s ruling is without substance as the Respondent was not foreclosed or prevented by the Appellant to conduct his defence, if any; the Respondent raising issue in his reply on points of law notwithstanding.
IX. That the learned judge decision is a breach of the Appellant?s fundamental human right, i.e. right to fair ? hearing.
2. That the learned trial judge erred in law when despite the fact that he stated the principles of law in considering application for amendment as submitted by the Appellant?s Counsel to conclude:
?(a) At what stage of Court?s proceedings can a Court grant application to amend pleadings (b) Is the application to amend such pleadings made by the

Applicant bonafide or was made in the pleadings ?.. (c) Will the application to amend such pleadings change the character of a party?s case or entails calling of fresh additional evidence?; nevertheless, he did not consider or apply these principles in his ruling and did not state the reason(s) why he failed to apply such principle in his ruling, thereby occasioned a grave miscarriage of justice.
PARTICULARS OF ERROR
I. The Trial judge did not consider the Appellant affidavit evidence and married it to the above principles, particularly the principle of law which states that our Court grants to amend pleadings if such amendment will not change the character of the case and the party will not call fresh additional evidence.
II. On the face of this Honourable Court, justice has not been done in this case by the trial judge because his findings were not supported by evidence and/or a wrong application of principle of substantive law or procedure.
III. The perverse findings of the trial judge is against the sacrosanct principle of fair-hearing.
3. The ruling is not only unsupportable, unreasonable,

unwarranted and wrongly founded, it is totally against the weight of evidence.
After transmission of record of appeal to this Court parties filed and exchanged briefs of argument.

SUBMISSIONS OF COUNSEL
APPELLANT?S BRIEF OF ARGUMENT
The Appellants Brief of argument was prepared by Appellant himself and filed on 25/1/18. He formulated three issues for determination:
1) Whether the dismissal of the Appellant?s application to amend his statement of claim at address stage by the learned trial judge after the Appellant and the Respondent and all their witnesses had given evidence and closed up their cases was wrong in law and if such application was granted would cause hardship, prejudice, injustice, circumvent, outwit, overreach and even ?force? the Respondent to prepare another address? or ?ask for recall of claimant?s witnesses.
?2) Whether the learned trial judge was wrong in law in dismissing the Appellant?s application to amend his statement of claim without considering thoroughly evidence before him, evaluate and apply them to the facts of this case before he jumped into his

conclusion that the Appellant?s application is unmeritorious and dismissed same ? perverse finding or finding that was not supported by evidence or finding reached as a result of applying a wrong approach to the evidence.
3) Whether in dismissing the Appellant?s application to amend his statement of claim, the learned trial judge denied or gave the Appellant his fair hearing.

ISSUE ONE
The Appellant contended that the dismissal of the claimant?s application to amend statement of claim at address stage was wrong in law as the application would not have in anyway prejudiced the Defendant/Respondent relying on ALHAJI KARIM LAGURO & ORS VS HONSU TOKU & OTHER (1992) 2 SCNJ PT 11 P.201 @ P202 -203. In the interest of Justice, amendment could be made or effected at any stage of the Court proceedings before judgment. Even in Court of Appeal, or Supreme Court such amendment could be carried out to bring them in line with the evidence already adduced, provided the amendment was not intended to overreach and the other party was not taken unaware as in the present case. See also COMMERCE ASSURANCE LIMITED VS ALHAJI BURAIMOH ALLI ?

(1992)4 SCNJ P.145 @ 149, ratio 14. P.159 lines 23 -25 AND ORS.

ISSUE TWO
Appellant?s submitted that the learned trial judge was wrong in law in dismissing the Appellant?s application to amend his statement of claim without evidence to support or justify such finding/dismissal. He further contended that in ruling in that regard the trial Judge was not expected to input personal knowledge except what was provided in the affidavit evidence. See the case of NAGEBU COMPANY NIGERIA LIMITED & 1 OTHER VS UNITY BANK PLC (2013) ALL FWLR PT 698 Pg 871 @ P 876 ? 877, ratio 6 where Court of Appeal held that the lower Court must not impair the evidence either with its personal knowledge of matters not placed and canvassed before it.?. ?Its duty was to reach a decision only on the basis of what was in issue and what had been demonstrated upon the evidence by the parties and supported by law?. Appellant submitted that the omission on the part of the learned trial judge was wrong in law and therefore occasioned a miscarriage of Justice.

ISSUE THREE
Appellant submitted that dismissing the

Appellant?s application to amend his statement of claim by the trial judge denied him his right to fair hearing as provided for in the constitution. Relying on the provisions of Section 36(1) of the 1999 constitution and Supreme Court decision in BOLUS SANYA & 1 OTHER V DENNIS SAUNA & 6 ORS (2012) ALL FWLR PT 618, P 917 @ 945 Para F ? H and OTHER DECIDED CASES. The Supreme Court held that any judgment or ruling involving a breach of constitutional provision of a fair hearing would not be allowed to stand on appeal; and urge Court to so hold.

RESPONDENT?S BRIEF OF ARGUMENT
The Respondent?s Brief of Argument was settled by his Counsel N.E. Okonofua and deemed filed on 22/2/2018.
Learned Respondent?s counsel distilled two issues for determination.
1. Whether the learned trial judge was not right in dismissing the application of the appellant same having been brought mala fide to overreach and outsmart the Respondent and frustrate his defence.
2. Whether in view of the provisions of Order 24 Rule 1, of the Edo State High Court (Civil Procedure) Rules, 2012, the application to amend after parties had

closed their cases is not incompetent.

ISSUE ONE
The Respondent counsel submitted that the application was brought mala fide and as such the trial Court was right in dismissing the application. See the case of ADENIYI & 4 ORS VS HERBERT ADEYINKA ADEOLA OYELEYE cited by the Appellant. Further relying on RAYMOND EZE VS BETRAM ENE (SUPRA) @ Pages 807 -808 Para H ? B, the learned Justice stated inter-alia?.. ?That the caveat however is also true that if an amendment is sought either in bad faith, for purpose of undermining the case of the opponent or is simply done with the intention of giving the party seeking same to have a second bite at the cherry, then such should not be allowed.? The Respondent urged this Court to dismiss this appeal and affirm the ruling of the trial Judge.

The Respondent?s counsel further contended that the Appellant could not be raising issue of fair hearing having stated in his brief of argument that necessary evidence had been given. See the case of CHIKE ANDERSON NDULUE VS GLORIA IBEH (2016) ALL FWLR, Part 822, Pg 1684 @ 1688 ratio 6 where the Court held what fair hearing means as

provided for in Section 36(1) of the 1999 constitution.

ISSUE TWO
The Respondent?s counsel submitted that allowing the Application to amend by the Appellant would be violating the provisions of Edo State High Court (Civil Procedure) Rules 2012, see Order 24 Rule 1. They therefore urged this Honourable court to dismiss the appeal with cost against the Appellant and affirm the decision of the lower Court.

APPELLANT?S REPLY ON POINT OF LAW
The Appellant on receipt of the Respondent?s brief filed a Reply brief on point of law and it was deemed filed on the 7/3/18.

The Appellant relying on Order 19, Rule 4, Sub Rule 2, of the Court of Appeal Rules 2016, the Appellant submitted that the Respondent failed to meet the requirement of the above Rule by not responding to points of law and issues raised by the Appellant.

Appellant further submitted that failure to answer, rebut or respond to the material facts stated by the appellant therefore admitted to the material facts stated by the Appellant.
?
In defining malafide as used by the Respondent, the Appellant submitted that it was derogatory for the council to use

those on the Respondent and submitted that this Court should frown at counsel use of language directed at him.

Responding to Order 24, Rule 1 of Edo State High Court (Civil procedure) Rules 2012 raised by the Respondent?s counsel that Appellant?s application was incompetent. Appellant submitted that this issue should be struck out and it did not flow from any of the grounds of Appeal. Relied on ISAH SAIDU & 2 ORS V SADIQ MAHMOOD (1998) 2NWLR PT. 536 P. 130 @ P 133R4. AND ANOTHER. The Appellant urged this Court to hold that the argument proffered by the Respondent?s counsel was not only tenable in law and procedure, they were purely baseless, misleading and did not hold water.

RESOLUTION OF ISSUES
I have carefully considered the submission of counsel on both sides as well as the contents of the record of appeal.
?
After deeply mulling over the issues distilled by both sides I am of the considered view that the following sole issue is apt and opposite for the just determination of this appeal.

SOLE ISSUE
Whether the Learned Trial Judge was right in dismissing the application of the Appellant on the grounds that

it was brought malafide to overreach and outsmart the Respondent and frustrate his defence.

I shall determine this appeal in the light of the above sole issue.
The law is settled on how and when parties can amend their pleadings. See AKANINWO & ORS V NSIRIM & ORS (2008) 9NWLR PT. 1093 p. 439 TOBI JSC. (of blessed memory) explained the principles guiding the amendment of pleadings thus:
?In an application for amendment of pleadings, the Court will take into consideration a number of principles or factors including
a) The attitude of the parties in relation to the amendment.
b) The nature of the amendment sought in relation to the suit.
c) The question in controversy
d) The time when the amendment is sought.
See ALSTHOM S.A. V CHIEF DR. SARAKI (2000) 14 NWLR (PT. 687) 415. Although the attitude of the respondent may in certain instances be an important consideration the attitude of the applicant is the major consideration. In this regard the Court must be satisfied that the application is brought bona fide or in good faith and not designed to abuse the Court process. In dealing with the nature of the

amendment, the Court will take into consideration the totality of the content of the amendment sought vis-a-vis the relief or reliefs sought in the matter. See also EZE V ENE & ANOR (2017) LPELR 41916 (SC).
OGUNBIYI JSC in CCG (NIG) LTD & ANOR V IDORENYIN (2015) LPELR ? 24685(SC) explained the principles in another way as follows:
?The general principle of law is ancient and very well settled that an amendment in a pleading can be sought and made at any stage of a proceedings before judgment. See the old English decision of CROPPER V SMITH (1884) 26 CH D 7?at 710 ? 711 where L.J. observed and said ? I know of no kind of error or mistake which if not fraudulent or intended to overreach the Court ought not to correct; if it can be done without injustice to the other party the purpose for allowing such privilege is to enable parties conduct their cases properly by placing before the Court all relevant facts necessary for the just determination of disputes between them. The caveat however is that any application which seeks to either overreach the other party or alter the nature of the

applicants case will not be allowed.?
I shall resolve the sole issue in the light of the above judicial opinions.

The applicant (now appellant) had sought to amend his statement of claim to ?set out names such as ALHAJI BESHIRU MUSAH, ABDULLAHI ADAMU MUSA AND IFEOMA CHIMEBELE as persons to whom the said slanderous words were uttered or published?
The applicant in paragraphs 8 ? 22 of the supporting affidavit further explained as follows:
?Paragraph 8
That the mistake or error arose because I used words that are not adequate, appropriate or accurate (ie misnomer) in paragraphs 4 & 6 in the Claimant?s Statement of Claim.
Paragraph 9
That instead of specifically stating or setting out in the said paragraphs in the Statement of Claim names of such as Alhaji Beshiru Musah, Alhaji Abdullai Adamu Musa and Ifeama Chimebele as persons to whom the said slanderous words were uttered or published, I erroneously or mistakenly stated or set out in the said paragraphs, inadequate or inappropriate or inaccurate words or statements such as ?hearing of people around him? and people

around the motor park and passerby?, thereby omitting the above names in the claim.
Paragraph 10
That these omissions were inadvertent
Paragraph 11
That I am ready to plead these names in the Claimant/Applicant?s amended statement of claim.
Paragraph 12
That the names I intend to plead in the said amended statement of claim are as follow:
Alhaji Beshiru Musah
Ifeoma Chimebele
Alhaji Abdullai Adamu Musah
Paragraph 13
That on the 13th day of November, 2014, the said Alhaji Beshiru Musah, Ifeoma Chimebele and ALhaji Abdullai Adamu Musah filed in this Honourable Court their written statements on oath which is before this Court and they were marked or identify in these written statements on oath as ?witness A? ?witness E? and ?witness C? respectively.
Paragraph 14
That Alhaji Beshiru Musah (witness A?) Ifeoma Chimebele (?witness E?) and Alhaji Abdullai Adamu Musah (?witness C?) had already adopted their written statements on oath as their evidence in this case.
Paragraph 15
That the trio evidence

are before this Honourable Court.
Paragraph 16
That this matter which is pending before this Court is at address stage
Paragraph 17
That regrettably, I did not plead the above witnesses names namely Alhaji Beshiru Musah, Ifeoma Chimebele and Alhaji Abdullai Adamu Musah in the Claimant/Applicant?s statement of claim or set out their names as persons to whom the defamatory words were uttered in the Claimant/Applicant?s statement of Claim.
Paragraph 18
That since these three witnesses has already led evidence before this Honourable Court, (i.e. their evidence are already on the record of this Court), the need to amend the said claim by pleading or setting out the three above witnesses names in the statement of Claim as persons to whom the defamatory words were uttered by the Defendant/Respondent against the Claimant/Applicant cannot be over-emphasized.
Paragraph 19
That if such amendment are effected and allowed by this Court, it will make the pleadings or the claim accord with or bring them in line with the evidence already in this Court?s record so that this Honourable Court can use such

evidence in the record to settle the real issue or matter in controversy between the Claimant/Applicant and the Defendant/Respondent.
Paragraph 20
That if this application is granted by this Court, the Claimant/Applicant will not call any additional witness or evidence in this matter before the Court.
Paragraph 21
That if this application is granted by this Honourable Court, the character of this case cannot change, alter or metamorphose into any other matter as this case will remain a case of slander against the Defendant/Respondent and no more.
Paragraph 22
That if this application is granted, no injustice will be done to the Defendant/Respondent. Neither will the Defendant/Respondent suffer prejudice nor will he suffer some injuries or detriments.?

The persons whose names were sought to be incorporated in the statement of claim of the claimants had already given evidence in Court and cross-examined by the defendant. No new piece of evidence was being sought to be introduced.
?
The defendant had contended at the lower Court that the amendments would be overreaching if granted because he had raised

objection on the point in his address.

With due respect I am unable to see any merit in the contention of the learned counsel for the defendant. I am surprised that the Learned Trial Judge upheld it. It is trite law that an applicant is not foreclosed from correcting error because the respondent had pointed out the errors. See SHANU V. AFRIBANK PLC (2000) 13 NWLR (PT 684) 392 at 404; TSOKWA OIL MARKETING CO. LTD V BANK OF THE NORTH LTD (2002) 11NWLR (PT 777) 163 at 207; OKPALA V. IBEME (1989) 2NWLR (PT 102) 208 at 217.

I have deeply considered the submissions of learned counsel on both sides in this appeal. I am unable to see why the application of the claimant (now appellant) to amend to bring his pleadings in line with the evidence already adduced, was dismissed. I am with due respect of the view that it ought to have been granted as no additional evidence needed to be adduced and the nature of the case of the claimant would not be changed by the amendment. I resolve this sole issue in favour of the Appellant. This appeal is allowed. The ruling of the lower Court delivered on 17/10/17 in Suit No. HAU/56/2014 is hereby set aside. In its place I

order that the application of the claimant to amend his Statement of Claim in the manner stated in his motion on notice filed on 7/8/2017, to plead the following names: –
a) Alhaji Beshiru Musah
b) Ifeoma Chimebele And
c) Alhaji Abdullai Adamu Musah is hereby granted.

Case No. HAU/56/2015 is hereby remitted back to the trial Judge for continuation of the trial by the same Court.

The Amended Statement of Claim attached to the affidavit in support of motion on notice filed on 7/8/2017 is hereby deemed properly filed and served subject to payment of appropriate filing fees.

Cost Of this appeal is assessed as N200,000.00 in favour of the Appellant.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother TUNDE OYEBANJI AWOTOYE, JCA. I agree with his Lordship’s reasoning and conclusion that the appeal has merit and should be allowed. Ordinarily, I would agree that the discretion of the trial judge should not be exercised in favour of a claimant in an action for defamation who wants to bring in the names of the persons to whom the defamatory words were published

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AFTER parties had closed their case and the Court had adjourned the matter for written address of parties to be filed. However, in the peculiar circumstances of this case, the three persons whose name was sought to be included in the statement of claim by way of amendment had been called by the Appellant as witnesses without objection by the Respondent. The witnesses had already given evidence and they had been cross examined before the application was made to bring the pleadings in line with evidence already on record. That is the situation that the learned trial judge should have taken into consideration before refusing the application. In any event, it was a wrongful exercise of the Court’s discretion to refuse the application. I too allow the appeal and abide by the orders made in the lead judgment. Appeal Allowed.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the privilege of reading a copy of the judgment just delivered by my learned brother, T.O. AWOTOYE, JCA.
?I am in complete agreement with the reasoning and conclusion contained therein and for the same reasons articulated in the lead judgment which I adopt as

mine. I also hold that this appeal has merit and it is accordingly allowed.
I abide by the consequential orders made in the lead judgment including order as to costs.

Appearances:

Chief Alhaji (Hon.) Sheidu Jimoh Oshioke appears in personFor Appellant(s)

N.E. OkonofuaFor Respondent(s)

Appearances

Chief Alhaji (Hon.) Sheidu Jimoh Oshioke appears in personFor Appellant

AND

N.E. OkonofuaFor Respondent