ALHAJI A. A. KHALIFA v. MR. FRANK ONOTU & ANOR (2016)

ALHAJI A. A. KHALIFA v. MR. FRANK ONOTU & ANOR

(2016)LCN/8384(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 23rd day of March, 2016

CA/K/516/2014

JUSTICE

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

ALHAJI A. A. KHALIFA Appellant(s)

AND

1. MR. FRANK ONOTU
2. OPURUM & PARTNERS Respondent(s)

RATIO

COURT: GRANT OF AMENDMENT; QUIDELINES FOR THE COURT IN CONSIDERING WHETHER TO GRANT AN AMENDMENT OR NOT

On the general principles of law that guide the Court in considering whether to grant an amendment or not, the cases of Ipodeola & Or v. Ushawole (1987) 3 NWLR (Pt. 59) P. 18; Oguntimehin v. Gubere & Or (1964) 1 All NLR P. 176; Alsyhom v. Saraki (2000) FWLR (Pt. 28); Saifaimnu & Ors v. Animashaun & Ors (2000) 22 WRN P. 35; Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt. 214); Adeniyi v. Oyeleye (2014) All FWLR (Pt. 726) P. 538; and Ojah v. Ogboni (1976) 4 SC 69 were cited and relied on wherein it have been enunciated that, in determining whether or not to exercise its discretion to grant or refuse an amendment, the Court would consider the following:
1. The attitude of the parties; 2. The nature of the amendment sought in relation to the suit;
3. The question in controversy; 4. The time the application is made; 5. The stage at which it is made and
6. All other relevant circumstance. PER. IBRAHIM SHATA BDLIYA, J.C.A.

COURT: GRANT OF AMENDMENT; THE GUIDING PRINCIPLE OF LAW APPLICABLE TO GRANTING OF AN AMENTMENT IN CIVIL PROCEEDINGS

What are the guiding principles of law applicable to the granting of an amendment of pleadings in civil proceedings. It is elementary that the granting or refusal of an amendment requires the exercise of the discretionary power of a Court of law. A Court of law has very wide discretion in granting or refusing amendment of pleadings, proceedings or notice of appeal based on an established principle that the fundamental object of adjudication is to decide the rights of the parties and not impose sanctions merely for mistakes made by the parties in the conduct of their cases by deciding otherwise than in accordance with their right.
The general principles of law guiding amendment of Court processes in general, and particularly, pleadings in civil proceedings have been settled by a litany of pronouncements by the Superior Courts. For instance in Ibrahim v. Dailey (2009) All FWLR page 1576 @ 1582, it was held that an amendment should be granted where:
“1. If it will entail injustice to the respondent.
2. If the applicant is acting malafides.
3. If the application is designed to overreach the respondent.
4. If the blunder of the applicant has done some injury.
Injustice is the opposite of justice. Therefore where justice willnot be done to the respondent, the application will be refused.” In Nalsa & Team Ass. v. N.N.P.C. (1991) 8 NWLR (Pt. 212) P. 652 @ 676, Karibi-White, J.S.C., had cause to re-state the principles and position of the law thus:
“In my view, whenever a party to an action has detected an error in the proceedings which if uncorrected will adversely affect his chances, and has by application made effort to correct such errors, the principles of justice demand that he should not be denied the opportunity to do so. It will be preposterous to conceded to the contention that the error so detected should remain uncorrected, so that the adversary can take advantage of it”.
In his book, Civil Procedure in Nigeria, 2nd Edition at Page 486, F. Nwadialo (of blessed memory) stated that:
“Ideally, the application should be made before the commencement of the proceedings. But this is not often possible, as the need for amendment may arise when the trial is already in progress in a situation like this, unless either party can still adduce evidence in the case new fact introduced by the amendment at the stage leave for it is sought, the application will not be granted.” PER. IBRAHIM SHATA BDLIYA, J.C.A.

COURT: ORDER OF AMENDMENT; FACTORS TO BE CONSIDERED IN AN APPLICATION FOR AN ORDER TO AMEND PLEADINGS IN CIVIL PROCEEDINGS
The determinate factors to be considered in an application for an order to amend pleadings in a civil proceedings have been lucidly stated in the case of Saifaimnu & Ors v. Animashaun & Ors (2000) 22 WRN P. 35 that:
“In determining whether or not to exercise its discretion to grant an amendment, the Court would consider:
1. The attitude of the parties; 2. The nature of the amendment sought in relation to the suit;
3. The question in controversy; 4. The time the application is made; 5. The stage at which it is made and
6. All other relevant circumstance.” PER. IBRAHIM SHATA BDLIYA, J.C.A.

COURT: APPLICATION FOR AMENDMENT; PRINCIPLES OF LAW APPLICABLE IN AN APPLICATION FOR AMENDMENT OF PLEADINGS IN A CIVIL PROCEEDINGS
Oputa, J.S.C. (of blessed memory) stated the principles of law applicable in an application for amendment of pleadings in a civil proceedings on page 140 of the case of Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt. 214) P. 140 that:
“The test as to whether a proposed amendment should be allowed is therefore whether or not the party applying to amend can do so without placing the opposite party in such a position which cannot be redressed by that panacea which heals every sore in litigation, namely cost.”
Lastly, in Adeniyi v. Oyaleye (2014) All FWLR (Pt. 726) P. 538, this Court, per Ogbuinya, J.C.A in examining the principles of law regarding of amendment of pleadings held that:
“The raison d’etre for amendment is for the purpose of determining in an existing suit, the real question or questions in controversy between the litigating/feuding 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 to a Court for 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 the Supreme Court. Sometime, the Court makes amendments suo motu.” PER. IBRAHIM SHATA BDLIYA, J.C.A.

COURT: GRANT OF AMENDMENT; SITUATIONS WHERE AN AMENDED SHOULD NOT BE GRANTED

However, an amended should not be granted to create a new or different suit or change the substance of the existing suit. In Hon. v. FMF Ltd (2001) FWLR (Pt. 62) P. 1890 it was held that:
“An amendment to create a suit where non-exist or to change the nature of the claim before the Court will not be granted.
In the case of CENTRAL BANK OF NIGERIA v. UCHENNA GODSWILL DINNEH (2005) LPELR-11349, IT WAS HELD THAT “An amendment which is intended by a party to change the nature of the case before the Court will generally be refused because it is not made bonafide but malafide and is intended to overreach the other party.”
Other circumstances in which an application to amend pleadings in a civil proceedings would be refused have been enunciated in the case of Ibrahim v. Dailey (2009) All FWLR (Pt. 156) P. 1682 thus:
“1. If it will entail injustice to the respondent.
2. If the applicant is acting malafides.
3. If the application is designed to overreach the respondent.
4. If the blunder of the applicant has done some injury.
Injustice is the opposite of justice. Therefore whether justice will not be done to the respondent, the application will be refused.” PER. IBRAHIM SHATA BDLIYA, J.C.A.

COURT ORDER FOR AMENDEMENT; THE ESSENCE OR PURPORT OF ALLOWING AN AMENDMENT OF PLEADINGS IN CIVIL PROCEEDINGS

Before delving into the reasons given by the learned trial Judge of the lower Court for dismissing the application for an order to amend the pleadings it is pertinent to highlight the essence or purport of allowing an amendment of pleadings in civil proceedings. Ikyegh, J.S.C. in Makinde v. Orium Engineering Services (UK) Ltd (2014) NWLR (Pt. 1417) p.1 @ 30 held that:
“The essence of the power of amendment is therefore to make whole what has been left undone either inadvertently or by blunder or oversight, in order to avoid injustice”. See Ojikutu v. Odeh 14 W.A.C.A. 641 where it was held thus:
“Blunders must take place from time to time, and it is unjust to hold that because a blunder during interlocutory proceedings has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits. All such cases of blunder may be remedied by payment of costs or the imposition of terms and conditions”.
That is why it is universal for rules of Court to make provisions for the amendment of process and/or proceeding before the Court.
Achike, J.S.C (of the blessed memory) put it in these words in the case of Alsthom S.A. v. Saraki (2000) FWLR (Pt. 28)
“Amendment enables the slips blunder, error, and inadvertence of counsel to be corrected of justice ensuring always that to justice is occasioned to the other party — once the justice of the case so demands, the Court can grant an amendment at any stage of the proceedings.” PER. IBRAHIM SHATA BDLIYA, J.C.A.

COURT: APPLICATION FOR AMENDMENT; WHETHER THE APPLICATION FOR AMENDMENT WAS MADE MALAFIDE, WHEN IS AN ACT DONE MALAFIDE

Can it be said that the appellant made the application for the amendment of the statement of claim malafide, in bad faith? When is an action malafide? In Akaniwo v. Nsirim (supra) pp. 308-310, TOBI, J.S.C. stated when an act is done malafide thus:
“Malafide is the opposite of bonafide. It simply means bad faith as opposed to bonfide, which is good faith. Malafide projects a sinister motive designed to mislead or deceive another. Malafide is more than bad judgment or mere negligence. It is a conscious doing of a wrong arising from dishonesty purpose or moral obliquity. Malafide is not a mistake or error but a deliberate wrong emanating from ill-will”. PER. IBRAHIM SHATA BDLIYA, J.C.A.

COURT: AMENDMENT OF PLEADING; WHEN CAN AN AMENDMENT OF PLEADING BE MADE

An amendment of pleadings can be made at any time, during the pendency of proceedings, before judgment. The appellants harnessed this cardinal principle of law when they made the application for amendment of law when they made the application for amendment of their statement of claim. The application came at the threshold of the proceedings in the case, when hearing just began with the evidence of one witness. The application was therefore made in good faith. PER. IBRAHIM SHATA BDLIYA, J.C.A.

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Kaduna State (hereinafter referred to as the lower Court) in suit No. KDH/KAD/1027/2012, delivered on the 22nd of October, 2014, by Justice HANNATU A. L. BALOGUN. Sometime in 2012, Alhaji A. A. Khalifa, (the appellant) instituted a suit against Mr. Frank Onotu and Opurum & Partners (the respondents), seeking the following reliefs:
“a. A declaration that the improvements or developments carried out on property No. 4, Galadima Road, Ungwan Rimi, Kaduna in the sum of N14 Million is for the purpose of advance payment for rent to the 1st defendant.
b. An order of this Court restraining the defendants themselves, their agents, privies or assigns or any person directly or by necessary implication whatsoever and howsoever from ejecting out, removing out, or parking out the plaintiff from property No. 4, Galadima Road, Unguwan Rimi, Kaduna pending the determination of this suit.
c. An order of this Court setting aside the notice of owner’s intention to recover possession of house No. 4 Galadima Road, Unguwan

Rimi, Kaduna served on the plaintiff dated 3rd December, 2012.”

Pleadings were filed, issues joined and the matter went to trial. The appellant testified at the trial. At this stage of the hearing of the case he became dissatisfied with the way and manner his counsel was handling and prosecuting the case on his behalf. He therefore brought an application before the lower Court seeking for leave to change counsel.
Leave to change counsel was granted on the 5th of March, 2014. He thereafter engaged Falalu Bello & Co. to prosecute the case for him. Upon taking over the case, the new counsel found that there was the need to amend the statement of claim earlier filed by the previous counsel. Consequently a motion on notice was filed on the 25th of September 2014, praying the lower Court for the following orders:
“1. An order granting leave to the plaintiff/applicant to amend his originating process, statement of claim and other accompanying process.
2. An order deeming the amended originating process, amended statement of claim and other processes attached hereto as “Exhibit 1” as properly filed and served.
3. An order setting aside the

evidence of PW1 and recalling him to testify on his amended claims before this Honourable Court.
4. An order appointing and directing an independent Estate Surveyors & Valuers from valuation Department of Ministry of Lands, Survey and Country Planning Kaduna to immediately enter, assess value and quantify in monetary terms the renovations carried out by the plaintiff in property No. 4, Galadima Road, Ungwan Rimi, Kaduna.
5. An order either fixing or appointing a Judge of the Rent Tribunal of Kaduna state as an “official referee” for the purpose of assessing the appropriate rents payable on property No. 4 Galadima Road, Ungwan Rimi, Kaduna since the expiration of the initial rent in accordance with the Rent Restriction Law Cap. 133 Laws of Kaduna State.”

The application of the appellant was supported by an affidavit and a further affidavit. The respondent filed a counter-affidavit challenging the depositions contained in the affidavit in support of the application. After addresses of learned counsel, and consideration of the entire application, the learned trial Judge delivered her ruling on the 22nd of October, 2014, wherein all the reliefs

sought were refused, and the application was dismissed in its entirety. Peeved and piqued by the refusal to grant the reliefs sought and the dismissal of the application, the appellant filed a notice and grounds of appeal to this Court, on three (3) grounds. The appellant sought for an order setting aside the ruling of the lower Court, and in its place grant all the reliefs and direct that the matter be heard and determine by another judge of the High Court of Justice, Kaduna State.

The appellant filed his brief of argument on the 24th of December, 2014 with 2 issues distilled from the 3 grounds of appeal. The respondents filed their brief of argument on the 5th of June, 2015, wherein the 2 issue contained in the appellant’s brief of argument were adopted on page 2 thereof. The 2 issues contained in the appellant’s brief of argument are thus:
“a. Whether the learned trial judge exercise her discretion in accordance with relevant applicable principles when she dismissed the application for amendment?
b. whether the learned trial Judge was right to have dismissed prayers 4 & 5 on the ground that they were hinged on the prayer for amendment or

any other grounds for that matter?”

RESOLUTION OF ISSUES
The 2 issues are hereunder taken and resolved seriatim.
ISSUE 1
On this issue, Mohammed, Esq. of learned counsel to the appellant submitted that the granting or refusal of an order of amendment of pleading in a civil proceedings, is at the discretion of the Judge. However, such exercise of discretion must be judicious and judicial in the over all interest of achieving substantial justice to the parties. On the general principles of law that guide the Court in considering whether to grant an amendment or not, the cases of Ipodeola & Or v. Ushawole (1987) 3 NWLR (Pt. 59) P. 18; Oguntimehin v. Gubere & Or (1964) 1 All NLR P. 176; Alsyhom v. Saraki (2000) FWLR (Pt. 28); Saifaimnu & Ors v. Animashaun & Ors (2000) 22 WRN P. 35; Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt. 214); Adeniyi v. Oyeleye (2014) All FWLR (Pt. 726) P. 538; and Ojah v. Ogboni (1976) 4 SC 69 were cited and relied on wherein it have been enunciated that, in determining whether or not to exercise its discretion to grant or refuse an amendment, the Court would consider the following:
1. The attitude

of the parties;
2. The nature of the amendment sought in relation to the suit;
3. The question in controversy;
4. The time the application is made;
5. The stage at which it is made and
6. All other relevant circumstance.

On whether the granting of the proposed amendment would be prejudicial or over-reacting to the respondents, learned counsel did contend that, far from it, having regard to the stage at which the amendment is sought, i.e. at the beginning of trial where only one witness had testified. That the respondents still have the opportunity to amend their pleadings if they so desire. In conclusion, counsel urged the Court to resolve issue 1 in favour of the appellant.

Ogwoeruchukwu, Esq., of learned counsel to the respondents, pointed out that it is not the law that every application for amendment must be granted, that is why the Court of law has the discretion to do what is just and fair when considering an application for an order to amend pleadings in a civil proceedings. Counsel did contend that the learned judge of the lower Court did exercise her discretion judiciously and judicially, in refusing to grant the

order to amend the pleadings by the appellant, on the ground that it was not just an amendment of the pleadings, but to grant same would tantamount to changing the nature of the case before the Court.

Learned counsel drew the attention of the Court to the affidavit in support of the application and submitted that there are no cogent and verifiable reasons therein to warrant the grantable of the amendment. The cases of Aminu v. Jinodu (1952) 4 NWLR (Pt. 233) P. 91 and Ajakaiye v. Adedeji (1990) 7 NWLR (Pt. 161) P. 91 cited to buttress the submissions supra. Counsel further submitted that the granting of the amendment would introduce new issues which would alter or change the nature of the case before the Court, therefore, the amendment should not be allowed. The cases of Hong v. F.M.F. Ltd (2001) FWLR (Pt. 62) P. 1890; C.B.N. v. Uchenna Dinneh (2005) LPELR-11349 and Adaka v. Ikot-Abasi TRC (1991) 6 NWLR (Pt. 198) P. 480 @ 490 cited to reinforce the submissions supra. Concluding, counsel urged the Court to resolve issue 1 against the appellant.

The appellant applied vide motion on notice filed before the lower Court on the 25th of September 2014,

seeking for an order to amend his statement of claim after the commencement of the hearing of the case by lower Court. What are the guiding principles of law applicable to the granting of an amendment of pleadings in civil proceedings. It is elementary that the granting or refusal of an amendment requires the exercise of the discretionary power of a Court of law. A Court of law has very wide discretion in granting or refusing amendment of pleadings, proceedings or notice of appeal based on an established principle that the fundamental object of adjudication is to decide the rights of the parties and not impose sanctions merely for mistakes made by the parties in the conduct of their cases by deciding otherwise than in accordance with their right.
The general principles of law guiding amendment of Court processes in general, and particularly, pleadings in civil proceedings have been settled by a litany of pronouncements by the Superior Courts. For instance in Ibrahim v. Dailey (2009) All FWLR page 1576 @ 1582, it was held that an amendment should be granted where:
“1. If it will entail injustice to the respondent.
2. If the applicant is acting

malafides.
3. If the application is designed to overreach the respondent.
4. If the blunder of the applicant has done some injury.
Injustice is the opposite of justice. Therefore where justice willnot be done to the respondent, the application will be refused.”
In Nalsa & Team Ass. v. N.N.P.C. (1991) 8 NWLR (Pt. 212) P. 652 @ 676, Karibi-White, J.S.C., had cause to re-state the principles and position of the law thus:
“In my view, whenever a party to an action has detected an error in the proceedings which if uncorrected will adversely affect his chances, and has by application made effort to correct such errors, the principles of justice demand that he should not be denied the opportunity to do so. It will be preposterous to conceded to the contention that the error so detected should remain uncorrected, so that the adversary can take advantage of it”.
In his book, Civil Procedure in Nigeria, 2nd Edition at Page 486, F. Nwadialo (of blessed memory) stated that:
“Ideally, the application should be made before the commencement of the proceedings. But this is not often possible, as the need for amendment may arise when the

trial is already in progress in a situation like this, unless either party can still adduce evidence in the case new fact introduced by the amendment at the stage leave for it is sought, the application will not be granted.”
The determinate factors to be considered in an application for an order to amend pleadings in a civil proceedings have been lucidly stated in the case of Saifaimnu & Ors v. Animashaun & Ors (2000) 22 WRN P. 35 that:
“In determining whether or not to exercise its discretion to grant an amendment, the Court would consider:
1. The attitude of the parties;
2. The nature of the amendment sought in relation to the suit;
3. The question in controversy;
4. The time the application is made;
5. The stage at which it is made and
6. All other relevant circumstance.”
Oputa, J.S.C. (of blessed memory) stated the principles of law applicable in an application for amendment of pleadings in a civil proceedings on page 140 of the case of Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt. 214) P. 140 that:
“The test as to whether a proposed amendment should be allowed is therefore whether or not the party

applying to amend can do so without placing the opposite party in such a position which cannot be redressed by that panacea which heals every sore in litigation, namely cost.”
Lastly, in Adeniyi v. Oyaleye (2014) All FWLR (Pt. 726) P. 538, this Court, per Ogbuinya, J.C.A in examining the principles of law regarding of amendment of pleadings held that:
“The raison d’etre for amendment is for the purpose of determining in an existing suit, the real question or questions in controversy between the litigating/feuding 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 to a Court for 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 the Supreme Court. Sometime, the Court makes amendments suo motu.”

In refusing to grant the reliefs sought by the appellant, and dismissing same, the learned trial judge of the lower Court found and held thus:
“From the above, having held

that the respondents will be prejudiced and seen that they will suffer an injustice if this application for amendment is granted, I therefore refuse prayer 1 and consequently prayers 2 and 3 of the motion papers.
On prayer 3, I wish to add further that since I have held that the plaintiff demonstrated good understanding and speaking of the English language the application in itself lack merit and it is accordingly refused.
Prayers 4 and 5 do not flow from the case as presently constituted but hinge on the amendment being sought which has been refused.
In any event, the plaintiff has already given evidence on the nature of renovations made and the value and is still in the process of calling his witnesses.
It will be recalled that this case went through the pre-trial stage and parties stated that they did not need to call any experts. None of the parties presented any case for the determination of the Court or experts.
In any event as already held, reliefs 4 & 5 do not flow directly from the statement of claim as presently is but from the intended new reliefs.
On the whole prayers 4 and 5 are also refused.
On the whole, this

motion is dismissed.”

Was the learned trial judge of the lower Court justified in dismissing the application to amend the statement of claim for the reasons given in the portion of the judgment reproduced supra. In Ojo v. Ogboni (1976) 4 SC 69 @ 85-86, Madarikan J.S.C (of blessed memory) dealing with the granting of an order to amend pleadings said:
“It is well settled law that an amendment of pleading should be allowed unless:
1. It will entail injustice to the respondent;
2. The applicant is acting malafide… or
3. By his blunder, the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise”
In Padeola v. Oshowole (1987) 3 NWLR (Pt. 59) P. 18, the Supreme Court succinctly stated the position of the law on amendment of pleadings in these terms:
“It is within the power of the Court to grant an amendment even if the amendment would add to the existing cause of action or substitute there for a new cause of action, provided the additional or the new cause of action arises out of the same or substantially the same facts as are contained in the pleading.”
However, an amended should

not be granted to create a new or different suit or change the substance of the existing suit. In Hon. v. FMF Ltd (2001) FWLR (Pt. 62) P. 1890 it was held that:
“An amendment to create a suit where non-exist or to change the nature of the claim before the Court will not be granted.
In the case ofCENTRAL BANK OF NIGERIA v. UCHENNA GODSWILL DINNEH (2005) LPELR-11349, IT WAS HELD THAT “An amendment which is intended by a party to change the nature of the case before the Court will generally be refused because it is not made bonafide but malafide and is intended to overreach the other party.”
Other circumstances in which an application to amend pleadings in a civil proceedings would be refused have been enunciated in the case of Ibrahim v. Dailey (2009) All FWLR (Pt. 156) P. 1682 thus:
“1. If it will entail injustice to the respondent.
2. If the applicant is acting malafides.
3. If the application is designed to overreach the respondent.
4. If the blunder of the applicant has done some injury.
Injustice is the opposite of justice. Therefore whether justice will not be done to the respondent, the application will be

refused.”

memory) put it in these words in the case of Alsthom S.A. v. Saraki (2000) FWLR (Pt. 28)
“Amendment enables the slips blunder, error, and inadvertence of counsel to be corrected of justice ensuring always that to justice is occasioned to the other party — once the justice of the case so demands, the Court can grant an amendment at any stage of the proceedings.”

The statement of claim in suit No. KDH/KAD/1027/2012 can be found on pages 4-7 of the printed record of appeal. The application by the appellant to amend the statement of claim is on page 82 of the record of appeal. The affidavit in support of the application is on pages 84-85 of the record of appeal. The counter affidavit of the respondent challenging the depositions in the affidavit in support of the application of the appellant is on pages 117-119 of the record of appeal. Applying the general principles of law on amendment of pleadings in a civil proceedings as enunciated in the decisions of the Apex Court, and this Court, was the learned trial Court judge of the lower Court right in dismissing the application of the appellant?

As earlier alluded to in this judgment, an application

for an order to amend pleadings in a civil proceeding can only be refused where:
“1. If it will entail injustice to the respondent.
2. If the applicant is acting malafides.
3. If the application is designed to overreach the respondent.
4. If the blunder of the applicant has done some injury.
To the respondent which cannot be compensated by cost.
Injustice is the opposite of justice. Therefore whether justice will not be done to the respondent, the application will be refused.”

Whether the application of the appellant will over-reach the respondents, or be prejudicial to them or was made malafide, one needs to compare the original statement of claim which is on pages 4-7 with the proposed amended statement of claim on pages 92-96 of the record of appeal. A comparison of these processes clearly shows that the issues in them remain same. So also are the questions in controversy. The substance of the dispute remained same. On whether an amendment will overreach the opposing party or not, it is necessary to know what is meant by it. In Yusuf v. Adegoke (2009) All FWLR (Pt. 385) P. 384 TOBI, J.S.C. expounded it thus:
“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 fulcrum of the respondent’s case.”
Denton West, J.C.A, stated the law very lucidly when an amendment can be overreaching, and should not be granted in the case of Sani v. Abdulsalam (2010) All FWLR (Pt. 528) P. 966 @ 998 thus:
“Application for amendment of pleadings will be refused in a case where it is established that the adverse party will be overreached by the amendment sought is at the stage of trial when he has already closed his case and the amendment will require his reopening the case. Or where the adverse party will be required to recall his witnesses, one or two of whom might have did and therefore cannot be recalled, or a vital witness has left the jurisdiction of the Court and cannot be recalled without an amount of expenses or delay. In such a case, it is the rule that amendment should not be allowed.
Relating the principle enunciated in the case above to the fact of the instant case, can it be said that the

respondents herein will be prejudiced by the grant of the applicant’s application to amend their pleadings as prayed. Amendment of pleadings can be made at any stage of trial, even on appeal if it is established that the amendment sought is to bring the pleadings in line with evidence which has already been adduced by the parties and which is already on record.”
It is not sufficient to assert that an amendment will be over-reaching to the other party. That party making the assertion has a burden to prove how or in what manner the over-reaching has accrued. In the instant appeal, the respondents have not been able to show in their counter-affidavit in what manner the amendment, if granted, will be over-reaching which is prejudicial to their case.

mislead or deceive another. Malafide is more than bad judgment or mere negligence. It is a conscious doing of a wrong arising from dishonesty purpose or moral obliquity. Malafide is not a mistake or error but a deliberate wrong emanating from ill-will”.

Can it be said that the appellant made the application to amend the statement of claim malafide, that is, in bad faith. It is not in dispute that the appellant applied for change of counsel which was granted on the 5th of March, 2014. There was industrial action by staff of the Judiciary in Kaduna State from July to August 2014. The High Court of Justice Kaduna State was on vacation from 4th August to 15th September, 2014. The application of the appellant for an order to amend the statement of claim was filed on the 25th of September, 2014. Can it be said that it was filed after a long delay, therefore, in bad faith? I do not think so. The Application was filed within a reasonable period in view of the events narrated supra. The issue of its being filed malafide, (in bad faith) has, therefore not been established by the respondents.

An amendment of pleadings can be made at any time, during the

pendency of proceedings, before judgment. The appellants harnessed this cardinal principle of law when they made the application for amendment of law when they made the application for amendment of their statement of claim. The application came at the threshold of the proceedings in the case, when hearing just began with the evidence of one witness. The application was therefore made in good faith.

The essence of an amendment of Court process is to enable the parties to a dispute to fully and comprehensively present their grievances to the Court for a just adjudication toward the just and fair determination of the dispute by the Court. Therefore, where it is desirable the parties should not be deprived of the right to present their case simply because a mistake or a blunder has been committed in the process of filing documents. The essence of granting an amendment is therefore to correct inadvertence or even blunders, so that justice can be done in the adjudication process. On the essence of granting an amendment of Court process in general, the case of Makinde v. Oriom Engineering Services (UK) Ltd (2014) 177 NWLR (Pt. 1417) P. 1 @ 30, demonstrated the

need to grant an amendment as follows:
“The essence of the power of amendment is therefore to make whole what has been left undone either inadvertently or by blunder or oversight, in order to avoid injustice. Se Ojikutu v. Odeh 14 W.A.C.A. 641 thus – ‘Blunders must take place from time to time, and it is unjust to hold that because a blunder during interlocutory proceedings has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits. All such cases of blunder may be remedied by payment of costs or the imposition of terms and conditions.’
That is why it is universal for rules of Court to make provision for the amendment of process and/or proceeding before the Court.”

In deciding whether to allow an amendment or not, the court must exercise its discretion judicially and judiciously. Accordingly, the primary consideration should always be whether the amendment sought is for the purpose of determining in an existing suit, the real question or questions in controversy between the parties. This is so because no matter how negligent or careless the party seeking the

amendment may have been or however late the proposed amendment, it should be allowed so long as it will not entail injustice to the respondent or the applicant is not acting malafide. Furthermore, a Court would not refuse an amendment simply because it introduces a new cause but would do so even where the amendment will result in a complete change of an action into one of substantially different character. See Oloro & Ors v. Falana & Ors (2011) 17 NWLR (Pt. 1275) p. 207 @ 210, UBA Plc v. Dafiaga (2000) 1 NWLR (Pt. 640) p. 175, Ogidi v. Egba (1999) 10 NWLR (Pt. 10) NWLR (Pt. 621) p. 42 and N.D.D.C. v. Precision Association Ltd (2006) 16 NWLR (Pt. 1006) p. 527.

Having regard to the foregoing, I am of the view that the learned trial judge of the lower Court ought to have exercised her discretion in favour of the appellant by granting an order for amendment of the statement of claim. Per prayer 1 and 2 of the motion on notice filed on the 25th of September, 2014. Issue 1 is hereby resolved in favour of the appellant.

In the application before the lower Court, the appellant sought by prayer 3 for an order setting aside the evidence of the appellant who

testified as PW1, and to recall him as a witness to testified in the event of granting the prayer for leave to amend the statement of claim. The appellant relied on the depositions contained in paragraph 7 to 10 of the affidavit in support of the motion on notice filed on the 29th of September, 2014. The depositions in the aforesaid paragraphs are as follows:
“7. That the Plaintiff is an illiterate in English Language but studied Arabic/Quranic Studies in detail. The processes filed on his behalf ought to contain jurat.
8. That these documents were not translated to him. Even his depositions were not translated for him in detect the mistakes or incorrect facts.
9. That the Applicant also informed this Honourable Court the day he testified as PW1, that he does not understand English language but the Proceedings of that day was conducted in English language despite his inadequacy in English language.
10. That his level of understanding of English language is below a person who successfully completed primary school.
11. That he did not understand the questions put to him under cross examination and he did not give intelligible

answers.”

The deposition on oath of the appellant is on pages 98 to 101 of the record of appeal. It has not been stated in the deposition that the appellant is an illiterate who could not speak nor understand English language. When he adopted his deposition on oath before the lower Court he did not inform the Court that he was illiterate so could not speak nor understand the English Language very well. There was no application to the Court for an interpretation of the proceedings of the Court to him on the ground that he could not speak nor understand English language. There are no materials before the lower Court that the appellant was illiterate by reason of which he could not, and did not understand the proceedings of the lower Court when he gave evidence as PW1. For the forgoing reasons, the application for an order to set aside the evidence of the appellant as PW1 before the lower Court cannot be granted. However, the 2nd part seeking for recalling of a witness is hereby granted. Prayer 3 is partially granted.

ISSUE 2
This issue questions the correctness of the decision of the learned Judge of the lower Court dismissing prayer 4 and 5 on

the ground that they are tied to the amendment of the pleadings which had been refused. Mohammed, Esq., did submit that prayers 4 and 5 of the application are not related to the amendment of the pleadings, rather, prayer 4 deals with cost of the renovation carried out on the property, whereas prayer 5 deals with the appropriate rent payable on property, No. 4 Galadima Road, Kaduna. Counsel pointed out that prayers 4 and 5 could be sustained without the granting of the proposed amendment in view of paragraphs 4, 5, 7, 11, 14 and 17 of the statement of claim sought to be amended.

Concluding, learned counsel adumbrated that prayers 4 and 5 in the application are independent of the prayer 1 (one) for amendment, and can be sustained even if the amendment could not be granted.

Ugwoeruchukwu, Esq., of learned counsel to the respondents contended that the learned trial Judge of the lower Court was right in not granting prayers 4 & 5 having dismissed prayer 1 and 2 of the application. That prayers 4 and 5 introduced new issues which are substantially different from the original issues before the lower Court. It has been argued that the granting of prayers

4 and 5 would drastically change or alter the nature of the claims before the Court, thus creating a new one to the disadvantage of the respondents. Counsel contended that prayers 4 and 5 cannot be sustained without the granting of the amendment sought by the appellant. In conclusion, learned counsel did urge the Court to hold that prayers 4 and 5 cannot be sustained without prayers 1, and 2, therefore same be refused and dismissed. Prayers 4 and 5 are as follows:
“4. An order appointing and directing an Independent Estate Surveyors & Valuers from Valuation Department of Ministry of Lands, Survey and Country Planning Kaduna to immediately enter, assess, value and quantify in monetary terms the renovations carried out by the plaintiff in property No. 4, Galadima Road, Ungwan Rimi, Kaduna.
5. An order either fixing or appointing a Judge of the Rent Tribunal of Kaduna State as an “official referee” for the purpose of assessing the appropriate rents payable on property No. 4 Galadima Road, Ungwan Rimi, Kaduna since the expiration of the initial rent in accordance with the Rent Restriction Law Cap. 133 Laws of Kaduna State.”

The averments

contained in paragraphs 4, 5, 7, 11, 14 and 17 of the statement of claim sought to be amended are reproduced hereunder for easy comprehension. They are follows:
“4. The plaintiff avers that on the 12th August, 2010, he paid the 1st defendant through the 2nd defendant the sum of N1,470,000.00 being Rent for a Duplex at No. 4, Galadima Road, Unguwan Rimi, Kaduna.
The plaintiff pleads the receipt of payment dated 12th August, 2010.
5. The plaintiff avers that on the 13th August, 2010, he wrote two letters to the 2nd defendant for repairs of the following:
a. Fence the property
b. Build the Guard House
c. Put flow tiles in area that matters
7. The plaintiff avers that he carried out the repairs in paragraph 5 above under the supervision of the 2nd defendant and expended N14 Million.
11. The plaintiff avers that he wrote to the 2nd defendant on the 21st May, 2012 and raised as follows:
a. The property has no water
b. The toilet where not in good condition
c. The ceiling where also falling off
14. The plaintiff avers that on the 4th October 2012, he caused his lawyers to write the 2nd defendant demanding

for spread of improvements, developments or renovations carried out on the property as rent.
The plaintiff pleads his lawyer’s letter dated the 4th October, 2012.
17. In the premises and by reason of the matters aforesaid, the plaintiff has suffered injury and loss of expenses on improvements or developments carried out on the property in the sum of N14 Million only.”

Whether the amendment of the statement of claim sought in prayer 1 and 2 of the motion on notice filed on the 29th of September, 2014 are granted or not prayers 4 and 5 can be sustained in view of the averments contained in paragraphs 4, 5, 7, 14 and 17 of the statement of claim sought to be amended. I do not therefore subscribe to the holding of the learned trial judgment of the lower Court that prayers 4 and 5 of the application of the appellant cannot be sustained if prayer 1 and 2 are refused and dismissed. However, whether the lower Court ought to have granted prayers 4 & 5 as an amendment of the statement of claim is another issue. In my view the issues raised in paragraphs 4, 5, 7, 11, 14 and 17 of the statement of claim do not require the orders sought by prayers 4 and

5 of the application of the appellant, for such issues can be proved or established by calling Estate Valuers who are experts in the relevant areas of the Estate Surveying and Valuation. There is no need for an order of the Court to call any expert as a witness by any of the parties. The amendments sought to introduce prayers 4 & 5 by way of an amendment to the statement of claim are therefore not grantable by an amendment to the pleadings as sought by the appellants. Issue 2 is resolved against the appellant.

In the result, having resolved issue 1 in favour of the appellant, the partially appeal succeeds. The ruling of the lower Court delivered on the 22nd of October 2014 in suit No. KDH/KD/1027/2014, dismissing the application for leave to amend the statement of claim is hereby affirmed except for prayers 1, 2 and partially3. Pursuant to the provisions of Order15 of the Court of Appeal Act, 2011, I hereby make an order granting prayers 1, 2 and part of prayer 3 of the appellant, granting him leave to amend his statement of claim as contained in the proposed amended statement of claim. Prayers 4 and 5 are not granted for the reasons adumbrated

hereinbefore in this judgment. The applicant is to file the amended statement of claim within 14 days from date of judgment. The suit No. KDH/KD/1027/2012 is hereby remitted to the lower Court for continuation of trial to finality by Justice Hannatu A. L. Balogun.

Parties to bear the costs of the prosecution of the appeal.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Ibrahim Shata Bdliya, JCA. His Lordship has considered and resolved the issues in contention in this appeal.

The Appellant is the plaintiff in the lower Court. Trial had commenced in the matter before the lower Court and the Appellant had testified as the first plaintiff witness. The Appellant thereafter changed Counsel and his new Counsel filed an application praying for the following orders:
i. An order granting leave to the plaintiff to amend his originating processes, the statement of claim and other accompanying processes.
ii. An order deeming the amended originating processes, amended statement of claim and other processes attached hereto as “Exhibit 1”

as properly filed and served.
iii. An order setting aside the evidence of PW1 and recalling him to testify on his amended claims before this Honorable Court.
iv. An order appointing and directing an independent Estate Surveyor and Valuer from the Valuation Department of Ministry of Lands, Survey and Country Planning Kaduna to immediately enter, assess, value and quantify in monetary terms the renovations carried out by the plaintiff in the property at No. 4, Galadima Road, Ungwan Rimi, Kaduna.
v. An order either fixing or appointing a Judge of the Rent Tribunal of Kaduna State as an “official referee” for the purpose of assessing the appropriate rents payable on the property at No. 4, Galadima Road, Ungwan Rimi, Kaduna since the expiration of the initial rent in accordance with the Rent Restriction Law, Cap 133 Laws of Kaduna State.

The Respondent opposed the application. The lower Court heard arguments on the application and it dismissed same in a considered Ruling. This Ruling is the subject of this appeal.

It is obvious that the prayers sought by the Appellant on the application were an appeal to the discretionary jurisdiction of

the Court. It is trite that when a Court is called upon to exercise its discretion in favour of an application, it must ensure that it does not act arbitrarily but judicially and judiciously based on sound principle of law and by giving weight to relevant considerations – First Fuels Ltd v. N.N.P.C. (2007) 2 NWLR (Pt. 1018) 276. Discretion is a very fluid situation and when a Court is invited to exercise its discretion one way or the other, the Court has to take cognizance of the very facts of the case before it – Bello v. Yakubu (2008) 14 NWLR (Pt. 1106) 104. The Court’s discretion must be exercised so as to do what justice and fair play may require having regards to the facts and circumstances of each particular case – Mamman v. Salaudeen (2005) 18 NWLR (Pt. 958) 478. A Court must always exercise its discretion only on the basis of the materials placed before it and on no extraneous considerations – CFAO (Nig.) Plc v. Sanu (2008) 15 NWLR (Pt. 1109) 1. Thus, for a party to succeed in showing that a, trial Judge exercised his discretion wrongly he has the onus to justify the fact that the discretion was not exercised judicially, i.e. that the discretion was

exercised in an arbitrary manner and without due regard to all relevant considerations of necessary factors or on reliance upon wrong principles – National Bank of Nigeria Ltd v. Guthrie (Nig.) Ltd (1993) 3 NWLR (Pt. 284) 643 and Statoil (Nig.) Ltd v. Star Deep Water Petroleum Ltd (2015) 16 NWLR (Pt. 1485) 361.

Additionally, the Courts have consistently held that an applicant who seeks the exercise of a Court’s discretion in his favour has a duty to place before the Court sufficient materials to satisfy the Court that he is entitled to a favourable exercise of the Court’s discretion – Alamieyeseigha v. Federal Republic of Nigeria (2006) 16 NWLR (Pt. 1004) 1, In Re: NDIC (Liquidator of Alpha Merchant Bank Plc); Adesanya v. Lawal (2007) 7 NWLR (Pt. 1032) 54. An applicant seeking the Court’s discretion must ensure that he supports his application with all necessary evidence and it is equally a corresponding duty of the Court to determine whether the applicant has discharged his duty in that regards, If he fails, it is just right and fair that the Court should refuse to exercise its discretion in his favour – Solanke v. Somefun (1974) 1 SC 141 and University

of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143.

The questions that the Appellant has to answer on this appeal therefore are whether he placed sufficient materials before the lower Court to be entitled to a favourable exercise of the discretion of the lower Court in favour of his application and whether he has shown that the lower Court did not exercise its discretion judicially and judiciously.

The first two prayers on the motion on notice before the lower Court were for leave to amend the statement of claim and the accompanying originating processes of the Appellant. Now, it is a fundamentalprinciple of litigation that parties are bound by their pleadings and cannot give evidence of any fact outside their pleadings. However, in drawing his pleadings, a party is not immune from errors. Also, there are times when new facts which enhance the merit of a party’s case may not come to light until long after the pleadings had been filed. To prevent injustice in such situations, the Courts are empowered to grant a party leave to amend his pleadings. The Courts have a very wide discretion in granting or refusing leave to amend. Under the Rules of Court, an

amendment should be mainly for the purpose of determining in the suit the real question or questions in controversy between the parties. This purpose is the guiding principle in the Court’s exercise of the power.

The position of the law is that the duty of a Court is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of the cases by deciding otherwise than in accordance with their rights. There should be 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. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy and such amendment is not a matter of favour or grace. Thus, as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right. In other words, however negligent or careless may have been the first omission and however late the proposed

amendment the amendment should be allowed if it can be made without injustice to the other side – Ologunleko v. Oguneyehun (2008) 1 NWLR (Pt. 1068) 397, Akaninwo v. Nsirim (2008) 9 NWLR (Pt. 1093) 439 and Awure v. Iledu (2008) 12 NWLR (Pt. 1098) 249.

The original claims of the Appellant before the lower Court were:
i. A declaration that the improvements or developments carried out on the property at No 4, Galadima Road, Unguwan Rimi, Kaduna in the sum of N14 Million is for the purpose of advance payment for rent to the first Defendant.
ii. An order of this Court restraining the Defendants themselves, their agents, privies or assigns or any person directly or by necessary implication whatsoever and howsoever from ejecting out, removing out or parking out the plaintiff from the property at No. 4, Galadima Road, Unguwan Rimi, Kaduna pending the determination of this suit.
iii. An order of this Court setting aside the notice of owner’s intention to recover possession of house at No 4, Galadima Road, Unguwan Rimi, Kaduna served on the plaintiff and dated 3rd of December, 2012.

In the averments in the statement of claim in support of the

claims, the Appellant complained about the increment of the rent payable on the property in issue by the Respondents from N700,000.00 to N1.5 Million and the letters exchanged on the increment of rents were part of the documents front loaded by the Appellant in support of his case.

In the proposed amendment, the Appellant sought to alter his claims to read:
i. A declaration that the plaintiff is entitled to deduct the cost of renovating the property at No. 4, Galadima Road, Unguwan Rimi, Kaduna in the sum of N8.7 Million or the sum as may be independently assessed or to convert the said sum to his rent as agreed and that the Defendants are caught by estoppel by word and conduct on the renovation.
ii. A declaration that the Defendants’ rent increase from N700,000.00 to N1.5 Million or N1 Million (as allegedly agreed) is callous, unlawful and is in clear violation of the provisions of the Rent Restriction Law, Cap 133, Laws of Kaduna State 1991.
iii. An order setting aside the letters of rent increase or the alleged agreement and direct the reversion to and payment of rent of N700,000.00 per annum or with variation as may be assessed in

accordance with the provisions of the Rent Restriction Law 1991subject to necessary deduction or conversion.
iv. An order setting aside the notice of owners intention to recover possession of House at No. 4, Galadima Road, Unguwan Rimi, Kaduna issued by the Defendants to the Plaintiff on the ground that it is not contemplated by the Recovery of Premises Law Cap 128 and is offensive to the other provisions of the Kaduna State Laws 1991.

In the affidavit in support of the application, the Appellant deposed that it was the course of perusing and going through the originating processes and all other processes filed on his behalf with his new Counsel who just took over the matter that it was revealed that the processes filed did not represent the true story of events and contained some incorrect information and that there was a need to amend the processes to bring forth the true state of events. In the counter affidavit to the application, the Respondents did not contest these averments, but stated that the proposed amendment would change the nature of the suit as the Appellant would be presenting a different case and that this would greatly prejudice

the Respondents in their counterclaim and would not serve the interest of justice. In refusing the proposed amendment, the lower Court stated in the Ruling thus:
” Looking at the original statement of claim and the present one, it does not appear that what is sought is just an amendment. It appears to me to be a complete overhaul of the plaintiff’s case which amounts to putting forward a different claim in the main.
I agree with learned counsel to the respondents that the proposed amendments will overreach them and be prejudicial to them. Furthermore, when one compares the proposed statement of claim and the present reply to counterclaim, one will see that the proposed statement of claim contradicts the defence to counterclaim and changes the defence on the issue of rent review.
I agree with learned counsel to the respondent that the amendment is a substantial change to the nature of the suit.”

A read through the original claims of the Appellant as reproduced above and the contest on the rent increment as contained in the original statement of claim and in the frontloaded letters, and comparing same to the proposed

amended claims, also as reproduced above, shows that it is incorrect that the proposed amendments amounted to a complete overhaul of the case of the Appellant or constitutes a substantial change to the nature of the suit. The amendments only sought to put in clearer terms the issues in contest between the parties. Now, “to overreach” means to circumvent, outwit or get the better of something by cunning or artifice. It also means to defeat one’s object by going too far. It connotes smartness on the part of a party in the litigation to defeat his opponent by a thoroughly organized plan to frustrate the intention and intendment of the adverse party. An overreaching conduct is an inequitable conduct because it is not fair and just – National Inland Waterways Authority v. Shell Petroleum Development Co. (Nig.) Ltd (2008) 13 NWLR (Pt. 1103) 48. In Yusuf v. Adegoke (2007) 11 NWLR (Pt. 1045) 332, Niki Tobi, JSC, speaking of an overreaching conduct in an application to amend, stated thus:
“Because the law recognizes a possible lapse or failure of human memory, it has worked out procedures for amendment of pleadings to accommodate any possible lapse or failure. But

the amendment of pleadings is not open ended, in the sense that an applicant can always succeed on 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 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.”

Applying these statements on overreaching conduct to the facts of this case, it is my candid view that the act of the Appellant in seeking to amend his pleading and other processes in the manner proposed, and at the stage of the proceedings it was sought, did not amount to an overreaching conduct. The amendment was sought after the Appellant changed his Counsel and before the close of his case, at a time that defence was yet to open its case and at a stage that the Respondents can still make consequential amendments to their pleadings and lead evidence thereon. The Courts grant amendment of pleadings

in such circumstances – see for example, Diamond Bank Ltd v. Ugochukwu (2008) 1 NWLR (Pt. 1067) 1, Adeniyi v. Oyeleye (2014) All FWLR (Pt. 726) 538. It is my view that the Appellant placed sufficient materials before the lower Court to sustain his prayer for leave to amend his processes and that the lower Court exercised its discretion wrongly without giving due regard to all relevant and necessary factors and it placed reliance upon wrong principles of law. I thus agree with the lead judgment that the portion of the Ruling refusing the grant of the first two prayers on the motion paper of the Appellant should be set aside and I hereby do so.

The third prayer of the Appellant on the motion paper was for an order setting aside the evidence already led by the Appellant as the first plaintiff witness and for an order recalling him to testify on his amended claims before this Honorable Court. I must say that I find the prayer for an order setting aside the evidence already led by the Appellant as the first plaintiff witness rather strange and novel. It was not that the Appellant sought the lower Court to expunge the evidence because it was legally

inadmissible. I am not aware of any law, statutory or case law that empowers a Court to set aside the entire evidence led on oath by a witness in a trial, and Counsel to the Appellant did not cite or refer to any such law either in his arguments on the application before the lower Court or in his brief of arguments before this Court. It is trite law that a Court cannot in the exercise of its discretionary jurisdiction under its inherent powers do or allow to be done something that the law does not permit – Mabera v. Obi (1972) All NLR 772, Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350.

With regards to the second part of the prayer on the recall of the Appellant to give further evidence on the amended processes, the lower Court refused the prayer as lacking in merit. It is trite that the exercise of the discretion to grant an application to recall a witness in civil matters and to lead additional evidence is not governed by any statutory provision and it is largely a matter of practice and it is predicated on the peculiar facts and given circumstances of the particular case and coupled with its attendant exigencies – Orisakwe & Sons Ltd v. Afribank Plc

(2012) LPELR-CA/J/11/2005. The overriding factor in the consideration of the application is whether or not the interests of justice require that the application should be granted. In other words an application by a party to recall a witness who had already given evidence should succeed where the interests of justice require it. The party applying to recall the witness must supply sufficient materials relating to why he wants the witness recalled and what he intends to put to the witness and it is on these facts that the trial Judge will decide whether or not the justice of the case obliges him to exercise his discretion one way or the other – Willoughby v. I.M.B. Ltd (1987) 1 NWLR (Pt. 48) 105, Tiwani Limited v. Citi Trust Merchant Bank Ltd (1997) 8 NWLR (Pt. 515), Musa v. Dalwa (2010) LPELR-CA/J/242/2001.
In the instant application, it was the case of the Appellant that the need to recall him as a witness was brought about by the proposed amendment to his processes and it is for him to testify on the amended claims. It is recognized that where an amendment to the originating process is allowed, a party to the proceedings has a right to recall witnesses

to testify on the amended processes – Osuolale v. State (1991) 8 NWLR (Pt. 212) 770 and Pincent v. State (1997) 1 NWLR (Pt. 480) 234. I thus find merit in the second part of the third prayer of the Appellant and I will grant same.

The fourth and fifth prayers of the Appellant on the application are for an order appointing an independent Estate Surveyor and Valuer from the Valuation Department of Ministry of Lands, Survey and Country Planning Kaduna to assess, and value in monetary terms the renovations he carried out in the property in issue, and for an order appointing a Judge of the Rent Tribunal of Kaduna State as an “official referee” for the purpose of assessing the appropriate rents payable on the property. Reading through the pleadings of the parties, including the proposed amended processes, it is the case of the Appellant that he carried out renovations in the property in dispute to the tune of a particular figure and it is also his case that the rent review proposed by the Respondent was unlawful and in clear violation of the provisions of the Rent Restriction Law, Cap. 133, Laws of Kaduna State 1991. The Respondents did not deny that the

Appellant carried out renovations in the property, but they stated that the property was in very good tenantable condition and not in need of any further improvement and that it was the Appellant that chose to improve it to his taste.

It is elementary that in a civil proceeding, a party who asserts a fact has the onus of proving that fact. It is not the duty of a Court to prove a party’s case for him and the Court, as an impartial arbiter, can only make orders to assist a party in obtaining evidence to prove of his case where it is shown that the party has made all efforts to obtain such evidence and facts are deposed to show that the evidence cannot be otherwise obtained. In the instant case, I am not aware of any law, and none was referred to by Counsel to the Appellant, that says that the Appellant can only prove the cost of the renovations he carried out in the property through the evidence of an independent Estate Surveyor and Valuer from the Valuation Department of Ministry of Lands, Survey and Country Planning Kaduna. And if indeed there is such a Law, there were no facts deposed in the affidavit in support of the application showing the failed

efforts the Appellant made to get such independent Estate Surveyor and Valuer and also showing that only a Court order could make such evidence available. Similarly, I am not aware of any law, and also none was referred to by Counsel to the Appellant, that says that the Appellant can only prove the appropriate rents payable on the property in question through the evidence of a Judge of the Rent Tribunal of Kaduna State appointed as an “official referee” in order to establish that the rent review proposed by the Respondent was unlawful and in clear violation of the provisions of the Rent Restriction Law. The Appellant did not supply any materials before the lower Court to sustain the grant the fourth and fifth prayers sought on the motion paper. The lower Court was thus on firm ground when it refused the two prayers.

It is for these reasons, and the fuller exposition of the law contained in the lead judgment, that I also find some merit in this appeal and I allow the appeal in part. I hereby affirm the Ruling of the High Court of Kaduna State in Suit No. KDH/KAD/1027/2012 delivered by Honorable Justice Hannatu A. L. Balogun on the 22nd of October, 2014,

save for the portion refusing leave to the Appellant to amend his processes in the manner proposed in the motion on notice dated the 25th of September 2014 and filed before the Court as well as the portion refusing leave to the Appellant to be recalled to give further evidence on the amended claims and which potions are hereby set aside. I hereby order as follows:
i. Leave is hereby granted to the Appellant to amend his originating processes, the statement of claim and other accompanying processes in the manner proposed in the amended originating processes, amended statement of claim and other processes attached as “Exhibit 1” to the application dated the 25th of September, 2014 and filed before the lower Court.
ii. The Appellant is granted fourteen days from the date of this judgment to file the amended processes.
iii. The Appellant is granted leave to be recalled as a witness to give further evidence on the amended claims.

I abide the consequential orders contained in the lead judgment on the remittance of the case to the lower Court and on costs of this appeal.

AMINA AUDI WAMBAI, J.C.A.: I had the

advantage of reading the draft copy of the judgment just delivered by my learned brother, IBRAHIM SHATA BDLIYA, JCA, I agree with his exposition of the Law and his conclusion that there is merit in the appeal.

The primary consideration in granting an application for amendment of pleadings is whether the amendment sought is for the purpose of determining in the existing suit, the real question or questions in controversy between the parties. The Courts are enjoined to grant amendment of pleadings at any stage of the proceedings except where the Applicant does not merit it, or the grant will be prejudicial to the other party or, introduce fraud, or set up a new case. See OYENUGA v. UNIFE (1965) NWLR 9, KODE v. YUSUF (2001) 5 NSCQR 376.

In the instant case, the learned trial Judge wrongly exercised his discretion in refusing the application for amendment which was for the purpose of determining the real question(s) in controversy. Rather than refuse the application, the punishment of awarding costs against the Applicant would have atoned for any inconvenience the application would have occasioned.

I am therefore at one with my learned brother that

this is an appropriate situation to set aside the decision of the Lower Court and by Section 15 of the Court of Appeal Act, I grant leave to the Appellant to amend his statement of claim as contained in the application.

Appearances

M. T. Mohammed, Esq.For Appellant

AND

Ben Ugwoeruchukwu, Esq.For Respondent