AKINTOYE v. UBA
(2022)LCN/16156(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, June 09, 2022
CA/L/1446/2018(R)
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Muhammad Ibrahim Sirajo Justice of the Court of Appeal
Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal
Between
MR. ABIODUN AKINTOYE (Trading Under The Name And Style Of ZACHEUS ONI FARMS) APPELANT(S)
And
UNITED BANK FOR AFRICA PLC RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE ISSUE OF AMENDEMENT
Unarguably, the issue of amendment has become ubiquitous in adjudications in the Courts. It is, invariably, occasioned by the accepted fallibility of man in the process of preparation of documents.
Etymologically, amendment traces its lexical paternity to the Latin verb “emendo-emendere” meaning “to cure, to add to, to correct an error”. In its wide context, amendment is: “A formal revision or addition proposed or made to a statute, constitution, pleading, order, or other instrument; specif., a change made by addition, deletion or correction, esp., an alteration in wording”, see Bryan A. Garner (ed.) et al, Black’s Law Dictionary, 10th edition (USA, Thomson Reuters, 2014) 99. In the immaculate words of Oputa, JSC, in Awote v. Owodunni (1986) 5 NWLR (Pt. 46) 941/(1986) 2 NSCC (vol. 17) 1359 at 1366, “amendment involves and implies an alteration, an addition to or subtraction from….” Even, substitution is held as an act of amendment, see Agbabiaka v. Saibu (1998) 7 SCNJ 305/(1998) 10 NWLR (Pt. 517) 534; SPDCN Ltd. v. Edamkue (2009) 14 NWLR (Pt. 1160) 1.
The purpose of amendment, which is at the discretion of a Court, is to determine, in an existing suit, the real question(s) in controversy between the litigating parties. It is a time-honoured principle of law that amendment can be made at any stage of proceedings in Court before judgment. Most rules of Courts do not circumscribe the number of times a party can apply for an amendment during the pendency of proceedings. It is trite, that amendments could be effected before trial Courts as well as appellate Courts, that is, the Court of Appeal and Supreme Court. Sometimes, the Courts make amendments suo motu. These attributes of amendment have been confirmed by the apex Court in an avalanche of authorities, see Alsthom v. Saraki (2000) 11 SCNJ I; Abey v. Alex (1999) 12 SCNJ 234; Solanke v. Somefun (1974) 1 SC 141/(1974) NSCC, vol. 9, 14; Mamman v. Salaudeen (2005) 18 NWLR (Pt. 958) 474; Kode v. Yussuf (2001) 4 NWLR (Pt. 703) 392/(2001) 2 SCNJ 49; Akaninwo v. Nsirim (2008) 1 SC (Pt. 111) 151; Okolo v. UBN Ltd. (1999) 6 SCNJ 193; Ehidimhen v. Musa (2008) 8 NWLR (Pt 669) 540; SPDCN Ltd. v. Edamkue (2009) 14 NWLR (Pt. 1160) 1; Ipadeola v. Oshowole (1987) 5 SCNJ 200/(1987) 2 NSCC (vol. 18) 755. GTB Plc. v. Innoson Nig. Ltd. (2017) 16 NWLR (Pt. 1591) 181; Ikechukwu v. Nwoye (2014) 4 NWLR (Pt. 1397) 227. PER OGBUINYA, J.C.A.
PRINCIPLES THAT GUIDE THE COURTS IN TREATING AMENDEMENTS OF COURT PROCESSES
There are certain principles, evolved by the Supreme Court, to guide the Courts in treating amendments of Court processes. In Chief Ojah v. Chief Eyo Ogboni (1976) 4 SC (Reprint) 87 at 92, Madarikan, JSC, stated:
“It is well settled law that an amendment of pleadings should be allowed unless –
1. it will entail injustice to the respondent;
2. the applicant is acting mala fide ….or
3. by his blunder, the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise….”
See also, C.G.G. (Nig.) Ltd. v. Idorenyin (2015) 13 NWLR (Pt. 1475) 149; Eze v. Ene (2017) 12 NWLR (Pt. 1579) 313.
Similarly, amendment will be granted if it ensures justice, relates to a mere misnomer; does not change the nature of the claim; does not create a new suit; will cure the defects in the proceedings; will be consistent with the testimonies of witnesses being considered on appeal or will not embarrass or surprise the opponent in the proceedings, see Oguntimehin v. Gubere (1964) All NLR 169; Amadi v. Thomas Aplin & Co. Ltd. (1972) All NLR 413; Mannam v. Salaudeen (supra); Kode v. Yussuf (supra); Adetutu v. Aderohunmu (1984) 1 SCNLR 575; Gowon v. Ike-Okongwu (2003) 1 SCNJ 453; Okolo v. UBN (supra); Ehidimhen v. Musa (supra); Okafor v. Ikeanyi (1979) 3-4 SC 99/(1979) NSCC (vol. 12) 43; Eta v. Dazie (2013) 9 NWLR (Pt. 1359) 248. PER OGBUINYA, J.C.A.
WHETHER OR NOT A DEFECTIVE ORIGINATING PROCESS CAN BE REVIVED BY AN AMENDMENT
It is settled law, beyond any peradventure of doubt, that a defective/incompetent originating process or process cannot be revived/cured by an amendment, see Nwaigwe v. Okere (2008) 13 NWLR (Pt 1105) 445; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; Okafor v. B.D.U., Jos Branch (2017) 5 NWLR (Pt. 1559) 385; Ani v. Effiok (2017) 8 NWLR (Pt. 1567) 281; SPDC (Nig.) Ltd. v. Agbara (2019) 16 NWLR (Pt. 1668) 310; Yusuf v. Mobil Oil (Nig.) Plc (2020) 3 NWLR (Pt. 1710)1, Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205. PER OGBUINYA, J.C.A.
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgement): By a motion on notice, dated and filed on 23rd March, 2020, the appellant, as an applicant, prayed this Court as follows:
(a) AN ORDER granting leave to the Appellant/Applicant to apply for an Order of the Honourable Court to amend the Appellant’s Notice of Appeal as shown in the proposed amended Notice of Appeal.
(b) AN ORDER of the Honourable Court deeming the amended Appellant’s Notice of Appeal as properly filed and served.
The application, which is based on three grounds, is supported by an 8-paragraph affidavit, sworn to by Oluwaseun Olukotun, a legal practitioner in the Law Firm of applicant’s counsel, with two annexures, exhibits AMA 1 and 2, attached to it. In opposition, the respondent, on 11th March, 2022, filed a 16-paragraph counter-affidavit, deposed to by John Osaro, a legal practitioner in the Law Firm of the respondent’s counsel. Both parties filed and exchanged written addresses in compliance with the order of this Court made on 7th July, 2020. The application was heard on 4th March, 2022. During its hearing, learned applicant’s counsel, B.S. Ajayi, Esq., adopted the applicant’s written address, filed on 13th November, 2020 but deemed properly filed on 14th March, 2022, as representing his arguments for the application. He urged the Court to grant it. Similarly, learned respondent’s counsel, John Osaro, Esq., adopted the respondent’s written address, filed on 11th March, 2022 but deemed properly filed on 14th March, 2022, as forming his reactions against the application. He urged the Court to dismiss it.
In the applicant’s written address, learned counsel distilled a single issue for determination, to wit:
Whether or not it is proper for the Honourable Court to grant the proposed amendment sought in this appeal so as to correct the errors and omission in the Notice of Appeal?
In the respondent’s written address, learned counsel crafted a sole issue for determination, namely:
Whether the Appellant/Applicant is entitled to a grant of the prayers sought in his Notice of Motion dated and filed on March 23, 2020.
A close look at the two sets of issues shows that they are identical in substance. In fact, the respondent’s issue can be conveniently subsumed under the applicant’s. Given this sameness, I will decide the application on the issue nominated by the applicant: the undoubted owner of the application.
Arguments on the issue.
Learned applicant’s counsel submitted that a Court has the power, at any time, to grant an amendment of a notice of appeal provided it is competent. He relied on South Atlantic Petroleum Ltd. v. Minister of Petroleum Resources (2013) 12 SC (Pt. II) 46; Ikechukwu v. Nwoye (2013) 12 SC (Pt. II) 112; Coker v. UBA Plc (1997) LPELR- 880 (SC); Famese v. Kayode (2017) LPELR-43233 (CA): G.L. Baker Ltd. v. Medway Building & Supply Ltd. (1958) ALL ER 540. He posited that an amendment would be disallowed where it would introduce a different case entirely. He cited G.L. Baker Ltd. v. Medway Building & Supply Ltd. (supra); Ojah v. Ogboni (1996) 4 SC 69. He asserted that an amendment will be granted to enable the Court determine the real issues in controversy. He referred to Jessica Trading Co. Ltd. v. Bendel Insurance Co. Ltd. (1993) 1 NWLR (Pt. 271) 538. He stated the Court has the discretion to grant an amendment in so far as it is not brought malafide. He relied on Ogidi v. Egba (1999) 6 SCNJ 107.
Learned counsel argued that the fact that the respondent filed a preliminary objection would not stop the grant of the application. He cited Shanu v. Afribank (Nig.) Plc (2000) 13 NWLR (Pt. 684) 392; Tsokwa Oil Marketing Co. v. Bank of the North (2002) 11 NWLR (Pt.777)163; South Atlantic Petroleum Ltd. v. Minister of Petroleum Resources (supra), Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652. He urged the Court to grant the application.
On behalf of the respondent, learned counsel contended that the notice of appeal sought to be amended, is incompetent because it referred to the decision of a Judge instead of the High Court of Lagos as required by Section 240 of the Constitution, as amended, so that this Court has no jurisdiction to hear the appeal. He relied on Ned v. Edi (2009) LPELR-3826 (CA); Chairman, Oyo State Local Government Council v. Adegboye III (2010) LPELR-3903 (CA). He added that the notice of appeal is incompetent because it does not contain the names and addresses of the parties directly affected by the appeal as required by the Order 7 Rule 2 (1) of the Court of Appeal Rules, 2016. He cited Adeniran v. Olusokun II (2019) 8 NWLR (Pt. 1673) 123. He reasoned that an incompetent notice of appeal cannot be amended. He referred to Isah v. Wammako Local Govt., Council (2019) LPELR-46529 (CA); Lagos State Traffic Management Authority v. Esezoobo (2010) LPELR-4420 (CA).
Learned counsel argued that a grant of the application will overreach the respondent which has raised and argued the issue of incompetence of the notice of appeal in a preliminary objection incorporated in its brief of argument. He cited Fajebe v. Opanuga (2019) 5 NWLR (Pt. 1664) 157; UBN Plc v. Lawal (2012) 6 NWLR (Pt. 1295) 194. He insisted that an amendment can only be granted for slips/omissions that do not overreach the adverse party or touch on the jurisdiction of the Court.
Resolution of the issue.
It admits of no argument that the applicant’s application is erected on amendment. It is imperative, in order to ease appreciation and lay proper foundation, to display salient features of the concept of amendment combed out from case-law authorities. Unarguably, the issue of amendment has become ubiquitous in adjudications in the Courts. It is, invariably, occasioned by the accepted fallibility of man in the process of preparation of documents.
Etymologically, amendment traces its lexical paternity to the Latin verb “emendo-emendere” meaning “to cure, to add to, to correct an error”. In its wide context, amendment is: “A formal revision or addition proposed or made to a statute, constitution, pleading, order, or other instrument; specif., a change made by addition, deletion or correction, esp., an alteration in wording”, see Bryan A. Garner (ed.) et al, Black’s Law Dictionary, 10th edition (USA, Thomson Reuters, 2014) 99. In the immaculate words of Oputa, JSC, in Awote v. Owodunni (1986) 5 NWLR (Pt. 46) 941/(1986) 2 NSCC (vol. 17) 1359 at 1366, “amendment involves and implies an alteration, an addition to or subtraction from….” Even, substitution is held as an act of amendment, see Agbabiaka v. Saibu (1998) 7 SCNJ 305/(1998) 10 NWLR (Pt. 517) 534; SPDCN Ltd. v. Edamkue (2009) 14 NWLR (Pt. 1160) 1.
The purpose of amendment, which is at the discretion of a Court, is to determine, in an existing suit, the real question(s) in controversy between the litigating parties. It is a time-honoured principle of law that amendment can be made at any stage of proceedings in Court before judgment. Most rules of Courts do not circumscribe the number of times a party can apply for an amendment during the pendency of proceedings. It is trite, that amendments could be effected before trial Courts as well as appellate Courts, that is, the Court of Appeal and Supreme Court. Sometimes, the Courts make amendments suo motu. These attributes of amendment have been confirmed by the apex Court in an avalanche of authorities, see Alsthom v. Saraki (2000) 11 SCNJ I; Abey v. Alex (1999) 12 SCNJ 234; Solanke v. Somefun (1974) 1 SC 141/(1974) NSCC, vol. 9, 14; Mamman v. Salaudeen (2005) 18 NWLR (Pt. 958) 474; Kode v. Yussuf (2001) 4 NWLR (Pt. 703) 392/(2001) 2 SCNJ 49; Akaninwo v. Nsirim (2008) 1 SC (Pt. 111) 151; Okolo v. UBN Ltd. (1999) 6 SCNJ 193; Ehidimhen v. Musa (2008) 8 NWLR (Pt 669) 540; SPDCN Ltd. v. Edamkue (2009) 14 NWLR (Pt. 1160) 1; Ipadeola v. Oshowole (1987) 5 SCNJ 200/(1987) 2 NSCC (vol. 18) 755. GTB Plc. v. Innoson Nig. Ltd. (2017) 16 NWLR (Pt. 1591) 181; Ikechukwu v. Nwoye (2014) 4 NWLR (Pt. 1397) 227.
There are certain principles, evolved by the Supreme Court, to guide the Courts in treating amendments of Court processes. In Chief Ojah v. Chief Eyo Ogboni (1976) 4 SC (Reprint) 87 at 92, Madarikan, JSC, stated:
“It is well settled law that an amendment of pleadings should be allowed unless –
1. it will entail injustice to the respondent;
2. the applicant is acting mala fide ….or
3. by his blunder, the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise….”
See also, C.G.G. (Nig.) Ltd. v. Idorenyin (2015) 13 NWLR (Pt. 1475) 149; Eze v. Ene (2017) 12 NWLR (Pt. 1579) 313.
Similarly, amendment will be granted if it ensures justice, relates to a mere misnomer; does not change the nature of the claim; does not create a new suit; will cure the defects in the proceedings; will be consistent with the testimonies of witnesses being considered on appeal or will not embarrass or surprise the opponent in the proceedings, see Oguntimehin v. Gubere (1964) All NLR 169; Amadi v. Thomas Aplin & Co. Ltd. (1972) All NLR 413; Mannam v. Salaudeen (supra); Kode v. Yussuf (supra); Adetutu v. Aderohunmu (1984) 1 SCNLR 575; Gowon v. Ike-Okongwu (2003) 1 SCNJ 453; Okolo v. UBN (supra); Ehidimhen v. Musa (supra); Okafor v. Ikeanyi (1979) 3-4 SC 99/(1979) NSCC (vol. 12) 43; Eta v. Dazie (2013) 9 NWLR (Pt. 1359) 248.
In a spirited bid to abort the success of the application, the respondent invented trinity defences to show that it is not grantable, videlicet: that the notice of appeal challenged the ruling of the Judge rather than that of the lower Court, that the notice of appeal did not set out the names and addresses of all the parties directly affected by the appeal and that the application was overreaching to the respondent. The second in the trilogy orbits around the competence of the notice of appeal and is sufficient to settle the issue.
The respondent weaved the allegation against the competence of the notice of appeal on the provision of Order 7 Rule 2 (1) of the Court of Appeal Rules, 2016 which is in pari materia with the extant provision of Order 7 Rule 2 (1) of the Court of Appeal Rules, 2021. Since the provision warehouses the onslaught and is the cynosure of the defence, it is germane to pluck it out whence it is ingrained in the statute book, ipsissima verba, as follows:
2.-(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the Notice of appeal”) to be filed physically or electronically in the Registry of the lower Court, which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the lower Court is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal and shall be accompanied by a sufficient number of copies for service on such parties.
The import of the respondent’s agitation circles around the applicant’s unilateral alteration of the parties in the notice of appeal without the leave of Court. The propriety or otherwise of the respondent’s nursed grievance is tucked in the four walls of the case-law. In Apeh v. PDP (2016) 7 NWLR (Pt. 1510) 153 at 180 and 181, Sanusi, JSC, incisively, opined:
It is discernible from the record of appeal that the present applicants have completely changed the character and names of the parties as they were portrayed at the trial Court and the Court below too, without seeking and obtaining leave of Court. This, I am afraid, they have no power so to do. I must emphasise here, that character or identity of a suit should always remain the same right from the inception of the suit and also must be maintained throughout the duration or pendency of the case unless, leave was sought and obtained from the Court, appellate or otherwise, to change it.
See also P.P.A. v. INEC (2012) 13 NWLR (Pt. 1317) 215; In Re: Apeh (2017) 11 NWLR (Pt. 1576) 252; Kurma v. Sauwa (2019) 3 NWLR (Pt. 1659) 247; Adeniran v. Olusokun II (2019) 8 NWLR (Pt. 1673) 98.
In due fidelity to the desire of the law, I have situated the parties in the notice of appeal, AMA 2, with those in the decision of the lower Court, which monopolises pages 175 and 176 of the record. The raison d’etre for the juxtaposition is not far-fetched. It is to discover if the notice of appeal, sought to be impugned, obeyed or flouted the law on nomenclature of the parties. Indisputably, the parties in the two processes are not on all fours. One of the parties in the ruling, HASBUNALAH ENTERPRISES, is conspicuously missing in the notice of appeal. Thus, the applicant altered the configuration and cognomen of the parties as constituted in the lower Court contrary to the spirit and letter of the law. The applicant, in his infinite wisdom, denied this Court of any impregnable evidence of the leave of the Court before making the radical change. It is decipherable from these ex cathedra authorities, displayed above, that the applicant’s notice of appeal must reflect the same title as that which is obtained at the lower Court. The applicant, on his volition and without the imprimatur of the Court, accorded new colour and complexion to the appeal vis-à-vis the parties herein.
The proper procedure was for the applicant to have showcased the names of all the parties in the notice of appeal and subsequently seek the leave of Court to excise the unwanted parties via an amendment. As it is, the applicant, seriously, fractured the law when he varied the names of the parties in the absence of leave of Court, as ordained by the provision of Order 7 Rule 8 of the Court of Appeal Rules, 2021 upon which the applicant staked its application. The learned applicant’s counsel’s expulsion of HASBUBUNALAH ENTERPRISES, in the cosy of his office, without the blessing of the Court, connotes that the names and addresses of the persons directly affected by the appeal were not reflected as decreed by the sacrosanct provision of Order 7 Rule 2 (1) of the Court of Appeal Rules, 2021 catalogued supra, see Adeniran v. Olusokun II (supra). It is a flagrant defilement of the provision which is offensive to the law. On this score, the applicant’s original notice of appeal, which the application seeks to repair, is plagued by an indelible incompetence. This brief legal anatomy on the unjustified alteration of the parties on appeal, with due reverence, exposes the poverty of the learned applicant’s counsel’s dazzling argument on the point. It is lame and impotent to infuse viability into the notice of appeal.
There is no gainsaying the fact that the main plank of the application is to amend exhibit AMA 2 which, in the eyes of the law, is infested with incompetence. It is settled law, beyond any peradventure of doubt, that a defective/incompetent originating process or process cannot be revived/cured by an amendment, see Nwaigwe v. Okere (2008) 13 NWLR (Pt 1105) 445; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; Okafor v. B.D.U., Jos Branch (2017) 5 NWLR (Pt. 1559) 385; Ani v. Effiok (2017) 8 NWLR (Pt. 1567) 281; SPDC (Nig.) Ltd. v. Agbara (2019) 16 NWLR (Pt. 1668) 310; Yusuf v. Mobil Oil (Nig.) Plc (2020) 3 NWLR (Pt. 1710)1, Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205.
In the glaring face of the original notice of appeal, exhibit AMA 2, being smeared with incompetence, there is no existing notice of appeal to be amended by substitution, alteration or correction by dint of exhibit AMA 1 – the proposed amended notice of appeal. Amendment of Court process does not envisage an amendment of an incompetent notice of appeal. It is a notorious principle of law that no one puts something on nothing and expects it to stand, see UAC v. Macfoy Co. Ltd. (1962) AC 152; CCB Plc. V. Ekperi (2007) 3 NWLR (Pt. 1022) 493; Alsthom v. Saraki (2005) 3 NWLR (Pt. 911) 208; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592. In the Latin days of the law, it was encapsulated in the maxim: Lex non cogit ad impossibila – the law does not command the impossible, see Lasun v. Awoyemi (2009) 16 NWLR (Pt. 1168) 513. The foregoing legal exposition, with due reverence, punctures the applicant’s salivating argument on the issue. It cannot fly. In the end, I have no option than to resolve the solitary issue against the applicant and in favour of the respondent.
On the whole, having resolved the mono issue against the applicant, the destiny of the application is obvious. It is bereft of any ounce of merit and deserves the reserved penalty of dismissal. Consequently, I dismiss the application. The parties shall bear the respective costs they incurred in the prosecution and defence of the doomed application.
MUHAMMAD IBRAHIM SIRAJO, J.C.A.: A draft of the lead ruling just delivered by my learned brother, OBANDE FESTUS OGBUINYA, JCA, was earlier made available to me. In it, His Lordship faulted the competence and validity of the Notice of Appeal sought to be amended by this application, and concluded that the application is not deserving of grant, as you cannot put something on nothing and expect it to stand. I align with this legal reasoning in also dismissing the application for want of merit. I abide by the order as to costs.
ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I have carefully perused the Draft Copy of the Judgment delivered by my Learned Brother, OBANDE FESTUS OGBUINYA JCA and found out that he rightly resolved all the issues in this Application.
It is settled that before a Court can exercise its competence to adjudicate on a Suit or Appeal, the Parties must be proper before the Court. This means that the Case before the Court must follow the due process of the law and upon the fulfilment of any condition precedent as to the exercise of jurisdiction. Failure to follow the due process or fulfil the conditions precedent for the exercise of Jurisdiction is fatal to the suit as the Proceedings no matter how well conducted are a Nullity. See UTIH VS ONOYIVWE (1991) 7 NWLR (PART 166) 166: USMAN VS UMARU (1992) 7 NWLR (PART 254) 377: EMEJURU VS ABRAHAM (2019) 4 NWLR (PART 1663) 541.
In the instant Appeal, the Notice of Appeal was defective as there was a unilateral alteration of the Parties in the Notice of Appeal without seeking the Leave of Court to do so. Failure to obtain the Leave of Court has rendered the Notice of Appeal incompetent and as such the Court is bereft of Jurisdiction to grant the Applicant’s Application for Amendment of the Notice of Appeal.
Therefore, I also dismiss this Application as it has no atom of merit. I abide by the Order made by my Learned Brother as to Costs.
Appearances:
B. S. Ajayi, Esq. with him, Dolapo Odede, Esq. For Appellant(s)
John Osaro, Esq. For Respondent(s)
