ADENIYI v. OMOLABAKE
(2022)LCN/16006(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, June 10, 2022
CA/IB/484/2017(R)
Before Our Lordships:
Yargata Byenchit Nimpar Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Between
MR. ADEBOWALE ADENIYI APPELANT(S)
And
MRS. ADEBOWALE O. OMOLABAKE RESPONDENT(S)
RATIO
WHETHER OR NOT AMENDMENT OF PLEADINGS CAN BE ALLOWED AT ANY STAGE OF COURT PROCEEDINGS
The settled principle in amendments generally was stated in the case of MAMMAN V. SALAUDEEN (2005) LPELR-1833(SC) as follows:
“…the law is that amendment to pleadings for the purpose of determining the real issues in controversy between the parties ought to be allowed at any stage of the proceedings, including on appeal, unless such amendment will result in 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 way of costs or otherwise.” Per ONNOGHEN, J.S.C.
It is a general and accepted rule that an amendment is basically to ensure the controversy between the parties is fully resolved which is to put an end to litigation on the issues before the Court and therefore a Court of law will grant an application for amendment of pleadings at any time in the proceedings before judgment, if it is in the interest of justice to do so. See OKAFOR V. IKEANYI (1979) 3-4 SC 99 and ADEAGBO V. YUSUF (1993) 6 NWLR (PT.301) 623. As a matter of law, there is no stage in the proceedings where a Court will not grant an application for amendment if the justice of the case demands, see MELIFONWU V. EGBUNIKE & ORS (2000) LPELR-6828(CA) Per TOBI, J.C.A (as he then was, went on to be JSC and now of blessed memory). PER NIMPAR, J.C.A.
WHETEHR OR NOT AN APPLICATION FOR AMENDMENT OF PLEADINGS WILL BE REFUSED WHERE IT INTRODUCES A NEW CASE OR NEW RELIEF
It is also the position of the apex Court that an application of this nature will not be refused simply because it introduces a new case or a new relief as in this case but the Court will refuse to do so where the amendment would not necessitate the calling of additional evidence and entail injustice to the Respondent, or change the action into one of a substantially different character. See OGUNTIMEHIN V. GUBERE (1964) 1 ALL NLR 176, BUDDING V. MURDOCH (1875-76) 1 CH. D. 42 AND HUBOCK V. HELMS (1887) 56 L.J. CH. 539. OKOLO & ANOR V. UNION BANK OF NIGERIA LIMITED (1999) LPELR-2464(SC) PER OGWUEGBU, J.S.C. PER NIMPAR, J.C.A.
WHETHER OR NOT ALL APPLICATION FOR AMENDMENT OF PLEADINGS MUST BE GRANTED
The apex Court in the case ADEKEYE & ORS V. AKIN-OLUGBADE (1987) LPELR-104(SC) held thusly:
“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 Rainy v. Alexander Bravo (1872) L.R. 4 P.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 thereby justice is done between the contending parties.” Per OPUTA, J.S.C. PER NIMPAR, J.C.A.
THE POSITION OF LAW ON WHEN AN AMENDEMENT OF PLEADINGS DULY TAKES EFFECT
Generally, an amendment duly made takes effect from the date of the document sought to be amended, See ADEWUNMI V. AG EKITI STATE (2002) 9 WRN 51 AT 71-72; UBA PLC V. ABDULLAHI (2003) 3 NWLR (PT. 807) 859 AT 378 and BRITTANIA-U (NIG) LTD V. SEPLAT PETROLEUM DEVELOPMENT CO. LTD & ORS (2016) LPELR-40007 (SC). PER NIMPAR, J.C.A.
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgement): This ruling is sequel to the Motion on Notice filed on the 7th March, 2022 and dated on the same day by the Respondent. The motion prays for the following:
1. AN ORDER of this Honourable Court granting leave to the Respondent/Applicant to amend the Petitioner’s Amended Petition dated and filed on the 23rd of September, 2014 before HON. JUSTICE A. A. ADEREMI of the High Court Oyo State BY ADDING ADDITIONAL RELIEFS AS PER THE SCHEDULE OF AMENDMENT ATTACHED TO THIS APPLICATION.
AND for such further or other orders as this Honourable Court may deem it fit to make in the circumstance.
The application is founded on the following grounds:
a. That the Respondent as the Petitioner at the lower Court in her Amended Notice of Petition dated 23rd September, 2014 copiously pleaded averment in support of an order for maintenance and settlement of property.
b. That the Respondent however, omitted to include an order for maintenance and settlement of property as part of the reliefs sought at the lower Court.
c. That notwithstanding the above, both the Respondent (the Appellant in this appeal) and the Petitioner (the Respondent in this appeal) led copious evidence for and against on the issue of maintenance and settlement of property before the lower Court.
d. That consequently the lower Court in its judgment dated 30th June, 2017 granted reliefs in respect of maintenance allowance in respect of the children of the marriage and settlement of property.
e. That this application is only brought to bring the pleadings in line with already adduced evidence and is thus innocuous.
f. That this Honourable Court has the inherent powers to grant an application of this nature.
g. That granting this application would not occasion a miscarriage of justice and is not intended to overreach or brought mala fide.
h. That it is in the interest of justice that this application be granted.
The application is supported by an affidavit of 6 paragraphs accompanied by 2 annexures marked as Exhibit A to Exhibit B, and these are:
a. A copy of the Respondent/Applicant Petition- Exhibit A;
b. A CTC of the judgment of the lower Court – Exhibit B;
As required by the Rules of the Court, the Applicant also accompanied the application with a written address. The Applicant at the hearing relied on the affidavit in support, the Exhibits attached and adopted the written address as arguments in urging the Court to grant the application.
The Respondent/Applicant’s written address settled by ADENIYI UTHMAN, ESQ., is dated 19th day of January, 2021. The Respondent/Applicant distilled a sole issue for determination as follows:
Whether in the present appeal, this Honourable Court can grant an amendment of the Petitioner’s Amended petition filed at the lower Court
The Appellant/Respondent filed a counter-affidavit in opposition and it was accompanied by a written address settled by M.O. FOLORUNSHO, ESQ., is dated 25th January, 2021 and filed on the same day. The Appellant/Respondent formulated a sole issue for determination as follows:
Whether the grant of amendment being sought by the Respondent/Applicant is not for the purpose of undermining the case of the Appellant/Respondent herein.
RESPONDENT/APPLICANT’S SUBMISSION
The Applicant’s Counsel relied on Order 4 Rule 1 of the Court of Appeal Rules, 2016, Section 15 of the Court of Appeal Act (as amended), the case of LAGURO V. TOKU (1992) 2 NWLR (PT. 223) 278 and MAMMAN V. SALAUDEEN (2005) 12 SCM 260 to submit that the Court has the power to grant amendments to an originating process because it will aid the Court in determining the real matter in controversy between the parties. He stated that the real controversy between the parties in this appeal are: (1) Dissolution of Marriage, (2) Custody of the children of the marriage, (3) Maintenance of the children of the marriage and (4) Settlement of property. That the parties had pleaded facts in respect of all the issues. (See pages 89 to 242 of the records)
The Applicant’s Counsel also relied on ADEKEYE & ANOR V. AKIN OLUGBADE (1987) 6 SC to submit that the case is on all fours with the present case and the application will not work injustice against the Appellant rather it will resolve the real controversy between the parties.
The Applicant’s Counsel further argued that the Court will not refuse an amendment which seeks to correct an error or misnomer. The Applicant’s Counsel cited KODE V. YUSSUF (2001) FWLR (PT. 40) 1727, ESI V. SHELL B.P. PETROLEUM DE CO (NIG) LTD (1958) 3 FSC 94 and ADELEKE V. AWONIYI (1962) 1 ALL NLR 260 to urge the Court to grant the application.
APPELLANT/RESPONDENT’S SUBMISSION
The Respondent submits that it is trite that amendment is grantable when parties are yet to close their cases, however, when parties have closed their cases, such amendment will be refused because if granted, it would have the same effect of undermining the case of the other party as held in EZE V. ENE & ANOR (2017) LPELR-41916(SC). According to the Respondent, a community reading of paragraphs 3 to 19 of the counter-affidavit will show that the Appellant/Respondent had already filed his Notice of appeal and brief of argument therefore, by granting this amendment, the whole appeal will be affected and would lead to miscarriage of justice. The Respondent also relied on MAMMAN V. SALAUDEEN (2005) LPELR-1833 (SC) to argue that this authority clears the air on the point that an amendment which will result in determining errors of the trial Court being complained about in the appeal it will be prejudicial to grant as it will result into miscarriage of justice to the Appellant/Respondent.
The Appellant/Respondent submits that the Respondent/Applicant engaged a legal practitioner named Mr. Biola Ladapo Esq., and now at the appellate stage, the Respondent/Applicant engaged another legal practitioner. Continuing, the Respondent/Applicant submitted that at the lower Court that Mr. Biola Ladapo employed a strategy of pleading facts and reliefs that he considered important and necessary for his client, therefore, the new Counsel is precluded from changing that strategy adopted at the trial Court in this Court because the Respondent/Applicant is bound by the way her reliefs were formulated at the lower Court. The Appellant/Respondent referred the Court to IBORI V. AGBI & ORS (2004) LPELR-1402 (SC), SODIPO V. LEMMIN-KAINEN (1986) 1 NWLR (PT. 5) 220, and ADETOUN OLADEJI (NIG) LTD V. NIGERIAN BREWERIES PLC (2007) LPELR-160 (SC) in support of his argument and the Appellant/Respondent urged the Court to refuse the application.
The application before the Court is seeking to amend the Petition by adding reliefs to bring them in line with evidence before the lower Court. The settled principle in amendments generally was stated in the case of MAMMAN V. SALAUDEEN (2005) LPELR-1833(SC) as follows:
“…the law is that amendment to pleadings for the purpose of determining the real issues in controversy between the parties ought to be allowed at any stage of the proceedings, including on appeal, unless such amendment will result in 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 way of costs or otherwise.” Per ONNOGHEN, J.S.C.
It is a general and accepted rule that an amendment is basically to ensure the controversy between the parties is fully resolved which is to put an end to litigation on the issues before the Court and therefore a Court of law will grant an application for amendment of pleadings at any time in the proceedings before judgment, if it is in the interest of justice to do so. See OKAFOR V. IKEANYI (1979) 3-4 SC 99 and ADEAGBO V. YUSUF (1993) 6 NWLR (PT.301) 623. As a matter of law, there is no stage in the proceedings where a Court will not grant an application for amendment if the justice of the case demands, see MELIFONWU V. EGBUNIKE & ORS (2000) LPELR-6828(CA) Per TOBI, J.C.A (as he then was, went on to be JSC and now of blessed memory).
The Applicant in the affidavit in support deposed to the fact that the amended petition copiously pleaded facts in support of maintenance and settlement of property and the amendment sought is to bring evidence in line with pleadings and reliefs, therefore and there will be no need to call fresh evidence. It also goes to confirm that the character of the case will not change. These are the basic considerations in determining whether to allow the amendment at this stage or not. Furthermore, amendment of this kind will not overreach the opposition. That is one point the Appellant made in opposing the application, contending that granting the application will over reach him.
Indeed, the amendment of pleadings is not open ended, in the sense that an Applicant can always succeed in his application for amendment. For instance, where an application for amendment is designed to overreach the Respondent, the Court will not grant the application. This arises when the Applicant cleverly anticipates the core of the case of the Respondent and seeks the amendment to frustrate the case with the result that the Respondent fails at the end of the day. An overreaching conduct is a circumventing conduct to outwit the adverse party by cunning or artifice. It is designed to defeat the object or objective of the Respondent’s case by going too far, in the sense of destroying the core or fulcrum of the Respondent’s case. See YUSUF V. ADEGOKE & ANOR (2007) LPELR-3534(SC) PER TOBI, J.S.C
It is also the position of the apex Court that an application of this nature will not be refused simply because it introduces a new case or a new relief as in this case but the Court will refuse to do so where the amendment would not necessitate the calling of additional evidence and entail injustice to the Respondent, or change the action into one of a substantially different character. See OGUNTIMEHIN V. GUBERE (1964) 1 ALL NLR 176, BUDDING V. MURDOCH (1875-76) 1 CH. D. 42 AND HUBOCK V. HELMS (1887) 56 L.J. CH. 539. OKOLO & ANOR V. UNION BANK OF NIGERIA LIMITED (1999) LPELR-2464(SC) PER OGWUEGBU, J.S.C.
Paragraph 4 (iv) of the affidavit in support of the application is relevant as it lays a good foundation for the grant of the application, it said that the trial Court in granting reliefs took into account the pleadings and evidence already before the Court and it is necessary to bring pleadings, and the evidence, to support the reliefs sought. This is one of the reasons an application to amend pleadings at this stage is allowed. There would be no need for additional evidence therefore; no miscarriage of justice would be occasioned, the character of the case is not changed and certainly not overreaching.
The apex Court in the case ADEKEYE & ORS V. AKIN-OLUGBADE (1987) LPELR-104(SC) held thusly:
“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 Rainy v. Alexander Bravo (1872) L.R. 4 P.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 thereby justice is done between the contending parties.” Per OPUTA, J.S.C.
Generally, an amendment duly made takes effect from the date of the document sought to be amended, See ADEWUNMI V. AG EKITI STATE (2002) 9 WRN 51 AT 71-72; UBA PLC V. ABDULLAHI (2003) 3 NWLR (PT. 807) 859 AT 378 and BRITTANIA-U (NIG) LTD V. SEPLAT PETROLEUM DEVELOPMENT CO. LTD & ORS (2016) LPELR-40007 (SC).
The Appellant in his address in opposition contended that the amendment if allowed will undermine the Appellant because they are challenging the reliefs granted. In this situation, the evidence being sought to be in line with pleadings is already before the Court and when it came in, there was no objection by the Appellant, if it would be prejudicial, the Appellant should have been diligent to block it from being given if it was not supported by pleadings. The Applicant is merely resting on pleadings on evidence to seek additional relief.
The question is whether it will meet the ends of justice if an application is brought to base a relief backed by evidence in line with pleadings. Would refusal do better justice when compared to a grant of it? No new evidence is sought to be introduced by the Applicant and if the claim is that the Appellant is seeking to set aside some reliefs granted on the ground that they were not sought for, it is a premature argument because the issue would have to be resolved in the appeal. However, facts relating to the said reliefs are before the Court and the addition of a relief at this stage to what already exists would not jeopardize the interest of the Appellant/ Respondent/nor interest of justice.
Dwelling on the approach and style of a former Counsel on the way he handled the matter at the trial Court and standing on such to refuse to do justice in a situation like this would be most unfair. After all, the Applicant is relying on the error of Counsel for the application. Every party before the Court has unfettered right to adopt what is legally allowed in the pursuit of his rights, it is common ground that being human, Counsel commit errors and the Court acknowledge that frailty and grants amendments to ensure that justice is done between parties.
The bottom line of this application and every other determination by the Court is to do justice and that the Court must strive to do at all time. It is in the quest to ensure justice is done that this application is found to have merit and should be granted.
The Application is granted as prayed, leave is granted to the Respondent/Applicant to amend the Petitioner’s Amended Petition dated filed on the 23rd of September, 2014 by adding additional reliefs as per the schedule of Amendment attached to the application. The Applicant is given 14 days to file the further Amended Petition at the trial Court and to be transmitted to the Court as additional record.
FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of reading before now, the lead ruling just delivered by my learned brother YARGATA BYENCHIT NIMPAR, JCA. The relief sought by the Respondent/Applicant is:
“AN ORDER of this Honourable Court granting leave to the Respondent/Applicant to amend the Petitioner’s Amended petition dated and filed on the 23rd of September, 2014 before HON. JUSTICE A. A. ADEREMI of the High Court Oyo state BY ADDING ADDITIONAL RELIEFS AS PER THE SCHEDULE OF AMENDMENT ATTACHED TO THIS APPLICATION.”
By the application, the Respondent/Applicant intends to bring the pleadings in line with the evidence on record. It is the law that the aim of an amendment is to prevent the manifest justice of the 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 the slip may be, or however late the proposed amendment; it ought to be allowed if it can be done without injustice to the other side. See AKANINWO VS. NSIRIM (2008) 9 NWLR (PT. 1093) 439; ALSTHOM S. A. VS. SARAKI (2000) 14 NWLR (PT. 687) 415; JESSICA TRADING CO. LIMITED VS. BENDEL INSURANCE CO. LIMITED (1993) 1 NWLR (PT.271) 538; CROPPER VS. SMITH (1884) 26 CH.D. 700.
It is apparent in this appeal that the Respondent/Applicant’s Counsel omitted to include an order for maintenance and settlement of property as part of the reliefs sought at the lower Court. However, the petition contains averments in support of maintenance and settlement of property. Evidence was also led in support. There is therefore nothing new to be added with the grant of the application. The interest of the Appellant/Respondent will not be prejudiced in any way.
For all the above reasons and the fuller reasons given in the lead ruling, I agree that there is merit in this application and it is also granted by me. I abide by all the orders contained in the lead ruling.
ABBA BELLO MOHAMMED, J.C.A.: l have read a draft of the lead ruling just delivered by my learned brother YARGATA BYENCHIT NIMPAR, JCA.
This application is predicated on whether or not the Respondent/Applicant who was the petitioner before the lower court can be granted leave to amend the petitioner’s amended petition dated and filed on the 23rd of September, 2014 before the High Court of Oyo State, by adding additional reliefs relating to maintenance and settlement of property, in order to bring the pleadings in line with the evidence already adduced before that Court.
The law is trite that amendment of pleadings is allowed at any stage of the proceedings. See: CHIEF EDMUND I. AKANINWO & ORS. v. CHIEF O. N. NSIRIM & ORS. (2008) LPELR-321(SC) or (2008) 9 NWLR (Pt.1093) 439; HONEY CROWN PRODUCTS LTD v. SHELL ELECTRIC MANUFACTURING (2013) LPELR-20077(CA), Per Iyizoba, JCA at pages 20-22, paras. A-D; and Diamond Bank LTD v. UGOCHUKWU (2008) 1 NWLR (Pt.1067) 1, per Rhodes-Vivour, JCA (as he then was) at Pp. 36-37, paras. H-F.
Indeed, in DIAMOND BANK LTD. v UGOCHUKWU (supra) at pages 36-37. paras. H-F. Rhodes Viviour, JCA (as he then was) explained the different considerations which apply in allowing amendment at different stages of proceedings, thus:
Amendments may be allowed at any stage of the proceedings; before trial or at trial or after trial/ or even after judgment, or on appeal. However, at these stages, different considerations apply viz: (a)before trial, a plaintiff may change his case by pleading a new cause of action, a new claim and the defendant a new defence; (b)during trial, amendments would be allowed to bring the pleadings in line with evidence already adduced; (c)after trial or close of address, the Court would be very slow at granting an amendment of pleadings but the Court would grant an amendment at this stage if the Court is satisfied that evidence on such amendment has already been led and admitted or where the matter has been raised in Court and argued up; (d)an amendment could be allowed at any time provided the amendment is not intended to overreach, or will entail injustice to the other party or that the party seeking the amendment is acting mala fide.
As elaborately explained in the lead ruling just delivered, the amendment sought in this application, seeks to bring the pleadings in line with the evidence relating to maintenance and settlement of property already adduced by the parties at trial. Hence, no miscarriage of justice will be occasioned if the amendment is allowed. For this reason, I also concur with the lead ruling and grant the application on the same term as stated in the lead ruling just delivered.
Appearances:
M. O. Folorunsh with him Opeyemi Araoye Esq, A. D. Adesina Esq and A.J. Aderibigbe For Appellant(s)
A. M. Uthman Esq with him T. J. Kareem and F. Olaoye For Respondent(s)