ALHAJI ABDULLAHI ADAMU v. MALLAM MUMKAILA ISA (2014)

ALHAJI ABDULLAHI ADAMU v. MALLAM MUMKAILA ISA

(2014)LCN/7219(CA)

In The Court of Appeal of Nigeria

On Friday, the 23rd day of May, 2014

CA/YL/45/2013

RATIO

WHETHER AN AMENDMENT INTENDED TO CHANGE THE NATURE OF A MATTER BEFORE THE COURT CAN BE MADE AT ANY TIME OR GRANTED ON APPEAL.

WHETHER AN AMENDMENT SEEKING JUXTAPOSITION OF PLEADINGS WITH AN ALREADY LED EVIDENCE WILL BE GRANTED

The law is well settled, and as rightly submitted by the Appellant’s counsel both before the Court below and in this Court, that an amendment which seeks to bring the pleading of a party in line with the evidence already led would most certainly be allowed in the interest of justice, if it would not in any way amount to injustice or overreaching or prejudice the other party. See SPDC V. Ambah (1999) 2 SCNJ 8151. per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

CONDITION FOR THE GRANT OF AN AMENDMENT OF PROCEEDING

As a general rule, an amendment of any proceeding including pleadings will be granted if it is for the purpose of eliminating all statements which may tend to prejudice, embarrass or delay the trial of the suit, and for the purpose of determining, in the existing suit, the real question or questions in controversy between the parties. The law is well settled that an amendment of pleadings should be allowed at any stage of the proceedings unless it will entail injustice to the other side responding to the application. The application should also be granted unless the applicant is acting mala fide or by his blunder, the applicant has done some injury to the Respondent which cannot be compensated in terms of costs or otherwise. See Akaninwo V Nsirim (2008) 1 SCNJ 275. per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

JUSTICES:

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria

Between

ALHAJI ABDULLAHI ADAMU – Appellant(s)

AND

MALLAM MUMKAILA ISA – Respondent(s)

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Taraba State High Court delivered 18/8/2011 by Nuhu S. Adi, J. refusing the leave sought by the Appellant as Plaintiff before the court below to amend the statement of claim in line with the proposed amendment as clearly outlined in the proposed amended statement of claim.

Being dissatisfied with the decision of the court below dismissing the application to amend the statement of claim, the Appellant had appealed to this Court vide a Notice of appeal filed on 20/3/2012, having earlier first sought and obtained the leave of this court to so do on 13/3/2012. See Page 53 of the record of Appeal.

By a specially endorsed writ of summons dated 12/1/2007 together with the statement of claim, the Appellant as Plaintiff filed Suit No TRSJ/3/2007. Alhaji Abdullahi Adamu V. Mallam Mumkaila Isa against the Respondent as Defendant claiming the following reliefs, namely;

(a) A declaration of title on the plaintiff over the parcel of land each measuring ground 30m x 35m and the second one with an area of 30m x 18 respectively situate and lying behind State Security Service Office Complex, Jalingo which said land is well known to the parties and illegally fenced by the Defendant.
(b) A mandatory order compelling the Defendant and/or his heirs, privies agents, assigns and/or whosoever claiming through him to remove any structure, building etc introduced thereon which do not form a natural part of the disputed land.
(c) A perpetual injunction restraining the Defendant and/or his privies, heirs, agents, worthiness representatives executors or whosoever claiming through him from further trespass either by remaining or causing improvements thereon.
(d) The sum of N500,000.00 being general damages for trespass and/or demonstration of naked power and financial strength by Defendant.
(e) Cost of filing and prosecution of the Suit.

See pages 1 – 7 of the record of Appeal.

Upon service of the writ of summons and the statement of claim, the Respondent as Defendant entered appearance on 7/2/2007 and subsequently filed the statement of defence on 12/6/2007 denying the claims of the Appellant as Plaintiff. At the close of pleading, the matter was initially assigned to High Court 5 Jalingo presided over by Hon. Justice Danjuma (as he then was), but following his elevation to the Court of Appeal it was subsequently transferred to be heard de-novo before Hon. Justice Nuhu S. Adi, J of the Court below. See Pages 8 – 15 of the record of Appeal.

After several adjournments before the Court below, the case proceeded to hearing on 19/5/2011. The Appellant as Plaintiff had called two witnesses, who testified as PW1 and PW2 respectively and the matter was adjourned on 6/6/2011 to 24/6/2011 for continuation of hearing. See pages 16 – 26 of record of Appeal.

However, on 14/6/2011, the Appellant as Plaintiff filed a Motion on Notice with supporting affidavit praying for the following reliefs:-
(1) An order of the Court granting leave to the Applicant to amend his specially endorsed writ/statement of claim.
(2) An order deeming as properly filed and served on the Respondent the amended specially endorsed writ/statement of claim herewith attached and marked Exhibit A.
(3) An order or order (s) as the Court may deem fit to make in the circumstances. See pages 27 – 37 of the Record of Appeal.

In opposition to the leave sought by the Appellant as Plaintiff to amend the statement of claim, the Respondent as Defendant filed on 20/7/2011 his counter affidavit stating that the amendment was merely intended to correct blunders and contradictions in the evidence already led by the Appellant’s witnesses and would thus overreach the Respondent if granted. See pages 38 – 39 of the record of Appeal.

On 21/7/2011, the court below proceeded to hear the application for amendment and on 18/8/2011, in a considered ruling dismissed the application for amendment and which ruling is now the subject matter of this appeal.
The Appellant challenged the decision of the court below on two grounds as contained in the Notice and grounds of Appeal filed on 20/3/2012. These two grounds of Appeal, without their particulars, are as follows.

Ground One
The learned trial Judge erred in law in his finding when he held thus;
“I have carefully considered the evidence of PW2 under cross examination and the contents of Exhibit 2 and firmly form the opinion that this amendment sought is to patch up any differences in the evidence of PW2 and the said exhibit 2. If the amendment sought is allowed in the circumstance, it will certainly overreach the Applicant who by his purposed amended statement of claim is bringing up facts that are substantially radically different from the root of title earlier pleaded. The amendment is to the effect that the land in dispute is not even the one sold to the Plaintiff by PW2. If such amendment is permitted, it will work hardship on the Defendant/Respondent who has to change his line of defence and will also result to injustice to him as the crow (sic) examination of PW2 would become useless” thereby occasioning a miscarriage of justice.

Ground Two
The learned trial Judge erred in law when he held thus:
“All the same, the application for amendment sought by the applicant is hereby refused for reason earlier given in this ruling and so is hereby dismissed” and this occasioned a grave miscarriage of justice.”

At the hearing of the Appeal on 30/4/2014, respective counsel to the Appellant and the Respondent duly adopted their respective briefs and while the Appellant prayed the court to set aside the ruling appealed against and grant the amendments sought; the Respondent urged the court to dismiss the appeal as lacking in merit.

In the Appellant’s Brief of argument filed on 25/2/2014, learned counsel to the Appellant Miss T. C. Ohanyido formulated a sole issue for determination as distilled from the two grounds of appeal. On the other hand, in the Respondent’s brief of argument filed on 25/3/2014, learned counsel to the Respondent, D. G. Tukura Esq., also formulated a sole issue for determination as distilled from the two grounds of Appeal.

The sole issue for determination as identified by the Appellant is:
“whether or not the learned trial Judge was right in law by refusing the application to amend on ground that the amendment would overreach and/or cause or occasion a grave miscarriage of justice'”
Learned counsel to the Appellant submitted on the sole issue that in law parties can amend their pleadings at any time of the proceedings and even on appeal and contended that a party’s case must be presented in consonance with the pleadings predicated on the originating process in spite of the detection of errors or omission and/or commission or new and more material facts in and to checkmate injustice.

Learned counsel to the Appellant submitted further that the fundamental object of adjudication is to decide the rights of the parties and not to impose sanctions merely for the mistakes they make in the conduct of their case by deciding otherwise than in accordance with their rights and contended that in considering an application for amendment the courts take into consideration the affidavit of the parties, the nature of the amendment sought, the question in controversy and the time when the amendment was being sought. Counsel relied on Alsthom V. Saraki (2000) 11 SCJN 2.

Learned counsel to the Appellant also submitted that the court below failed to exercise its discretion properly when it refused to grant the amendment sought by the Appellant and contended that there was nothing in evidence before the court below that the application was brought in bad faith. Counsel relied on Amosan V. R.T.D.T.C. (2009) 17 NWLR (Pt.1170) 207 at P. 209; Ogidi V. Igba (1999) 6 SCNJ 107 at P.138.

Learned counsel to the Appellant further submitted that the amendment sought was to bring the pleadings of the Appellant in line with evidence already led before the court below, which the court below erroneously regarded as evidence to patch up the case of the Appellant and contended that there was no evidence before the court below to show that the Respondent would be overreached if the application was granted since the Respondent who bears the onus to show that he will be overreached failed to so do. Counsel referred to Section 137 (1) Evidence Act 2004 and relied on Amason V. R.T.D.T.C (supra) at Pp. 209 – 210.
At any rate, learned counsel to the Appellant submitted that on a grant of the amendment sought, the Respondent was at liberty to amend his own pleading even without the leave of Court in so far as is necessary to meet the facts introduced by the amendments sought including pleading afresh to the case so introduced in the amended statement of claim. Counsel relied on Mobil Oil Nig. Plc V. IAI 36 (2000) 4 SCNJ 124 at P. 126; Alsthom V. Saraki (supra) at P. 4.

Learned counsel to the Appellant finally submitted that the Court below in its ruling appealed against did not confine itself to the issue of amendment but proceeded to decide on matters touching on the substantive suit, such as whether or not the amendment sought was to bring in facts radically different from the root of title earlier pleaded and that the land in dispute was not even the one sold to the Plaintiff by the PW2 and prayed that the appeal be allowed and the ruling of the Court below set aside. Counsel relied on Amason V. R.T.D.T.C. (supra) at P. 211.
On his part, the sole issue for determination as identified by the Respondent is
“Whether the learned trial Judge was not right in refusing the Appellant/Applicant’s application to amend his writ of summons and statement of claim having regard to the nature and circumstances of how the evidence sought to be amended was elicited under cross examination.”

Learned Counsel to the Respondent, on the sole issue conceded that in law pleading can be amended at any stage of the proceedings if the intendment of the amendment is to bring into focus the real issue in controversy between the parties and contended that in considering an application for amendment, the Courts take into account the attitude of the parties, the nature of the amendment sought, the question in controversy and the time when the amendment was being sought. Counsel relied on Alsthom S.A. V. Saraki (2001) 14 NWLR (Pt. 687) 415.
Learned counsel to the Respondent submitted that the real cause of the amendment sought by the Appellant was the contradictions in the evidence of the PW 2 under cross examination in relation to Exhibits 1 and 2 and the land in dispute and contended that the amendment sought was to introduce fundamental and radical claim mainly to patch up the contradictions in the case of the Appellant before the Court below and would clearly overreach the Respondent if allowed.

Learned counsel to the Respondent submitted that in the circumstances of the case and the intended amendment it was clear and as rightly held by the Court below that the amendment sought was made mala fide and contended that it was not to bring the pleading in line with evidence already led but rather to introduce a new claim radically and fundamentally different from the earlier root of title claimed by the Appellant and urged the Court to dismiss the appeal as lacking in merit.

I have taken a calm look at the respective sole issue for determination as formulated by the parties, one issue each as distilled from the two grounds of Appeal. I had earlier in this judgment set out in details the two grounds of appeal without their particulars. I have also calmly perused the Record of Appeal as it relates to the application before the Court below by the Appellant to amend the statement of claim. I have further considered and reviewed in details the submissions of counsel to the respective parties, noting carefully the plethora of decided cases relied upon by them in their respective briefs of arguments.

Now, upon an anxious consideration of all of the above, particularly the facts and circumstances as revealed in the Record of Appeal and the germane principles of law on both amendments and exercise of discretion by a Court, I am of the firm view that the sole issue for determination as formulated by the learned counsel to the Appellant is more apt and germane and thus best represents the real issue for determination in this Appeal.

In my view, a consideration of the sole issue as identified by the learned counsel to the Appellant will invariably involve a consideration of the sole issue as identified by the learned counsel to the Respondent.

I shall therefore, adopt and set out here under the sole issue as identified by the learned counsel to the Appellant at the sole issue for determination in this appeal namely:
“Whether or not the learned trial judge was right in law by refusing the application to amend on the ground that the amendment would overreach and/or cause or occasion a grave miscarriage of justice.”

In law, a decision by a court whether to grant or refuse an application for amendment by a party of his pleadings or process before the Court is clearly one involving the exercise of discretion by the court one way or the other.

In this appeal therefore, the crux of the challenge to the decision of the Court below can be located squarely within the confines of whether the Court below exercised its discretion judicially and judiciously, given the set of facts and circumstances before it in the application by the Appellant to amend his statement of claim?

Having had a calm reading of the ruling of the Court below, it does appear to me that the Court below in refusing the Appellant’s application for leave to amend the statement of claim held the following main three views or positions, namely:
(1) That the amendment sought by the Appellant as Applicant was to patch up any differences between the evidence of PW2 under cross examination and the contents of Exhibit 2.
(2) That the amendment sought was intended to introduce substantially radical different facts on the root of title of the Appellant as earlier pleaded in the statement of claim.
(3) That the amendment sought is not intended to bring the pleading in line with the evidence already led by the Appellant through any of the two witnesses that had testified. See pages 46 – 47 of the Record of Appeal.

Now, the question that readily arises is whether on the facts and circumstances of the application before the Court below and in the light of the applicable principles of law as regard amendments and exercise of discretion by the Courts, did the Court below exercised its discretion judicially and judiciously or arbitrarily in disregard of or in misconception of the law and misapprehension of the facts when it refused the Appellant’s application for amendment in the ruling appealed against by the Appellant?

To answer this crucial question, it would appear that a restating of the applicable principles of law on amendments and exercise of court’s discretion would be apposite at this juncture in this judgment and that is what I shall proceed to do anon.

The law is that an amendment which is intended to bring into focus the real issues in controversy between the parties can be made at any time and may be granted even on appeal. However, 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 and cannot be said to have been made bona fide but mala fide and is intended to overreach the other party. See Oladiti V. Sungas Co Ltd. (1994) 1 NWLR (PT.321) 433; World Gate Ltd V. Senbajo (2000) 4 NWLR (PT. 654) 681; CBN V. Uchenna Godswill Dinneh (2005) 1 LPELR 11349.
But, an amendment merely for the purpose of determining the real issue (s) in controversy between the parties ought to be permitted at any stage of the proceedings, even where the action has been reserved for judgment or an appeal provided that:
(a) The Applicant is not acting mala fide or trying to overreach the other party.
(b) The amendment will not entail injustice or embarrassment or surprise to the other party.
(c) By his blunder the Applicant has not caused injury to the other party which cannot be ameliorated by cost or otherwise assuaged.
See CBN V. Uchenna G. Dinneh (supra) at P. 11349; Ehidimhen V. Musa (2000) 8 NWLR (Pt.669) 640.

It is thus settled law that trial Courts are allowed free hand to exercise their discretion to amend any pleading anytime before judgment provided no new issues have been introduced thereby. Consequently, an amendment should not be allowed to introduce a different case from that which is already before the court whether in form or in substance, and for this proposition of law, authorities abound. But whatever happens, trial courts, like the Court below should not be lightly prevented from exercising their discretionary powers in allowing the amendment of pleading in favour of the parties. However, such discretion which could have been described as unfettered if not for the requirements of it not to cause injustice, embarrassment or surprise to the other party is thus not completely unfettered. See Alhaji Ayinde Awure & Anor V. Adisa Ibedu (2007) LPELR 3779; Nabson Ltd V. Mobile Oil (1995) 7 NWLR (Pt.407) 254; Okafor V. Ikeanyi (1979) 3 – 4 SC 99; Aboyeji V. Momoh (1994) 4 NWLR (Pt.341) 646; Chief Ojah V. Chief Ogboni (1976) 4 SC 69.

On the position of the law, as the plethora of authorities brought to my attention contend, it seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision on the real matter in controversy, it is as much a matter 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 and therefore an amendment will be allowed if is intended to bring the pleadings in line with evidence already led. See Chief Ojah V. Chief Ogboni (1976) 4 SC 69; Nicholas Ogidi V. Chief Daniel Egba (1999) 10 NWLR (pt.621) 41; Ajakaiye V. Adedeji (1990) 7 NWLR (Pt.161) 192; Ubanga V. Usanga (1982) 5 SC 103.
It is perhaps for this germane reason more than any other reasons that in law it is well settled that where an amendment sought relates to a mere misnomer, it will be granted almost as a matter of course. See Commerce Assurance Ltd V. Alli. (1992) 2 NWLR (Pt.232) 10.
Now, what then is the rationale behind the principles of law on amendment as regards the role of amendment? The aim of an amendment, as is commonly agreed is usually to prevent the manifest justice of a case from being defeated or delayed by formal slips which may arise from inadvertence of counsel. See Adesanoye V. Adewole (2004) 11 NWLR (Pt.884) 414; Ogboru V. Ibori (2004) 7 NWLR (Pt.871) 192; Njoku V. UAC Foods (1999) 12 NWLR (Pt.632) 557; House of Reps. & Ors V. SPDC & Ors (2010) LPELR 5016; Ehidimhen V. Musa (supra).
However, it must be pointed out at once that notwithstanding the utilitarian role of amendment in bringing into focus the real issue in controversy, yet the court will not grant amendment to set up a different cause of action or change the character of the case of a party without an amendment of the writ of summons. See Ekpan V. Ujo (1986) 3 NWLR (Pt.26) 63; Uzor V. N.S.W.U. & Ors (1973) 1 All NLR 38; Hon. Justice Garba Abdullahi V. Governor of Kano State & Ors (2011) LPELR 8925.
Furthermore, it is also the law that where an amendment is sought purposely for either the reason to cause a delay in the hearing of a matter or cause to lose its proper meaning by reason of derailment it is certainly done in bad faith. There must in all circumstances be good faith and reason for an amendment to be obliged The question of amendment, although open ended as it may sound, is not however, a free for all match overreaching the cause of justice. It is rather for the just determination of a cause, which makes litigation effectual and meaningful. See Chima Chijioke V. Mrs. Bosede Soetan (2006) 10 NWLR (pt. 990) 170.
What then can be said to be an amendment within the broader context of the litigation process in our courts? An amendment simply put is the correction of an error committed in any process, pleading or proceedings at law or in equity and thus an amendment can be made either as a matter of course or by consent of the parties upon notice to the Court in which the proceedings is pending. See Secondi Bogban V. Motor Diwhre & Ors (2005) 16 NWLR (pt. 951) 274; Adekeye V. Akin-Olugbade (1987) 3 NWLR (Pt.60) 214.
As earlier observed, because the courts are more concerned with deciding the rights of the parties than in their errors or mistakes, which can be corrected at any stage, an amendment which will not cause injustice to the other party and can at worst be ameliorated by cost will be granted at any stage if it is in the interest of justice. See Okafor V. Ikeanyi (1979) 3 – 4 SC 99; Chief Eyo Eta V. Chief Okon Dazie (2013) LPELR 2013 6 (SC).
There is yet another very crucial aspect of the law on Amendment, where evidence has been led on facts not pleaded and an amendment is sought to bring the pleadings in line with the evidence already led on facts not hitherto pleaded. The law is that such an amendment may be allowed in order to bring the pleading in line with the evidence already led but not withstanding this open-ended leeway an amendment will not be allowed if it would amount to changing the character of the case put forwarded by an Applicant. See Laguro & Idowu V. Toku & Vinabled (1992) 2 NWLR (Pt. 223) 278; Imonikhe V. A.G. of Bendel State (1992) 6 NWLR (pt. 248) 396; Union Bank of Nigeria. V. Ogboh (1995) 2 NWLR (Pt. 380) 647; Fayemi V. Olorunfemi (1998) 1 NWLR (pt. 534) 523; Chijike V. Soetan (2006) 10 NWLR (Pt. 990) 179; Unipertol Nig. Ltd V. Musa (1992) 7 NWLR (Pt. 251) 63; Shell V. Ambah (1999) 3 NWLR (Pt. 593) 1; Nabson V. Mobil Oil (1995) 7 NWLR (Pt. 407) 254.

Having to a large extent restated the germane principles of law on amendment; what it means, when it will be granted, when it will be refused and what is its role in the adjudication process in the courts, I think I should pause to also restate some of the relevant principles of law on the exercise of discretion by courts which, in addition to the principles of law on amendment, is also part of the real crux of the issue in this appeal.

Every court of law established by the Constitution in this country can safely and aptly be described as a Court with the power to exercise discretion as it is a Court of law and equity.

It is thus well settled in law that an Appellate court should be very wary of setting aside the exercise of discretion by a Lower Court as an Appellate court is not at liberty to substitute its own discretion for the discretion already exercised by the Lower Court except where the Appellate Court reaches a clear conclusion that there has been a wrongful exercise of discretion; that no weight or no sufficient weight was given relevant consideration or that the exercise was done mala fide or arbitrarily or illegality or considering extraneous matter. See Ikenta Best Nig. Ltd. V. A.G. of Rivers State (2009) 6 NWLR (Pt. 1084) 61; UBA V. Stalban GMBH(1989) 3 NWLR (Pt. 110) 317; Chief Nicholas Banna V. Telepower Nig. Ltd (2006) 15 NWLR (Pt. 1105) 198; Enekebe V. Enekebe (1964) 1 All NLR 102; Solanke V. Ajibola (1986) 1 All NLR 64.
It follows therefore, that in every case where the exercise of discretion is challenged, then the Appellate court such as this Court is bound to look at the surrounding circumstances so as to determine whether the Court below exercised its discretion judicially and judiciously or arbitrarily. See Charles Ekwelugo V. ACB Nig. Ltd (2006) 6 NWLR (pt.975) 30.
However, due to the overriding need not to unnecessarily fetter the exercise of discretion by trial courts, it is not in all cases that an Appellate Court will interfere with the exercise of discretion by a trial court, simply because it did not favour one of the parties litigating before it. The Appellate Court thus, will not interfere with the exercise of the discretion in the absence of proof that it has been wrongly exercised. Consequently, one cannot lay down hard and fast or immutable principles or rules as to the exercise of judicial discretion by a Court and this is so because the moment that is done then the discretion becomes unnecessarily fettered from the onset. See Hon. Justice Kalu Anyah V. African Newspapers of Nigeria Ltd (1992) 2 NWLR (Pt. 247) 319.
It is perhaps for this reason more than any of the other germane reasons that it is now well settled in law and that an appellate Court does not lightly interfere with the exercise of discretion of trial Courts. It does so only if its shown that the trial court has acted on some wrong principles of law or a misapprehension of the facts; in that the exercise is arbitrary or patently wrong. See Sonnar Nig. Ltd. V. Nordwind (1987) 1 NWLR (Pt. 66) 520.

In bringing my restating of the relevant principles of the law on the exercise of discretion by the courts to a close in this judgment, it is also pertinent to point out that an Appellate court will not interfere with a finding of fact by a trial court where such finding is supported by the pleadings and evidence adduced before the trial court.

The law is thus well settled that where a trial court unquestionably evaluates the evidence and dispassionately appraised the facts, it is not the business of the appellate court to substitute its own view for those of the trial court. An Appellate Court will therefore, only interfere in exceptional circumstances where such finding is perverse, not supported by evidence or had occasioned a miscarriage of justice. See Rabiu Hamza V. Peter Kure (2010) 10 NWLR (Pt. 1203) 630; Woluchem V. Gudi (1981) 5 SC 291; Maya V. Stocco (9168) 1 All NLR 441; Onasanya V. Nwoko (1974) 6 SC 69; Lawal V. Dawodu (1972) 1 All NLR (Pt. 2) 270; Mogaji V. Odofin (1978) 4 SC 91.

Consequently, on the above restated succinct principles of the law on exercise of discretion by the courts, it follows that judicial discretion exercisable by all levels of Courts in the hierarchy of Courts in this Country is thus clearly a sacred power which inheres to a Judge, be it a trial Court or an Appellate court in appropriate and deserving cases.
It is truly a type of armour, speaking metaphorically, which the Judge should and ought to employ judicially and judiciously whenever the occasion demands to arrive at a just and fair decision. It is thus, going by its purpose and usefulness, a very vital tool in the due administration of Justice and therefore not to be exercised carelessly or lackadaisically or revolutionary or radically or whimsically by the courts. See Ajuwa V. SPDC Ltd. (2011) 18 NWLR (Pt. 1279) 787; Odusote V. Odusote (1971) 1 All NLR 219; Olatubosun V. Texaco Nigeria Plc (2012) 14 NWLR (Pt. 1319) 200; Acbi V. Ebenighe (2014) 4 NWLR (Pt. 1397) 380 at P. 407.
In Chief Ikechukwu V. Hon. Tony Nwoye & MW (2014) 4 NWLR (Pt. 1397) 227 at P. 239, the Supreme Court per Ogunbiyi, JSC, had poignantly and succinctly put the issue of proper exercise of discretion by the courts thus:
“It is also trite though elementary, to state that the court is, as provided by the Constitution, clothed and imbued with enormous wide and inherent powers which are exercisable at its discretion for purpose of doing justice. The caveat however, restrict that the exercise of such discretion must not be whimsical or lackadaisical without due care and attention. It must, in other words, be judicial and judicious having regard to all the facts and material placed before it and also the circumstances relating to the case…”

Now, it would appear that I have in this judgment devoted enough pages and quite a great deal of time and space to restating the guiding principles of the law on amendments and exercise of discretion; that may well be so but, in my view, it is a well informed decision so to do in view of my earlier observation in this judgment that the crux or more aptly the pivot on which the resolution of the sole issue for determination in this appeal lies is simply; whether the Court below exercised its discretion in the decision appealed against judicially and judiciously or not on all the facts, circumstances and issues canvassed and submitted to it for decision in the Appellant’s application to amend the statement of claim?

In the application before the Court below, the Appellant had sought to amend the statement of claim, particularly touching on paragraphs 11 and 12, which state as follows:

11: Alhaji Adamu J. Gongong Maliki in exercise of his right of ownership gave one Christopher Tanko a piece of land measuring about 30m x 45m leaving a remaining piece of land measuring 30m x 45m x 18m and Mallam Ali Jarma measuring about 30m x 15m

12. The Plaintiff avers that both Christopher Tanko and Ali Jarma transferred title to their plots of land to him vide purchase which was evidenced in writing. Copies of the said receipt/sale agreements are hereby pleaded”. See page 5 of Record of Appeal.

However, by the proposed Amended statement of claim, for which leave of the Court below was sought, the Appellant as Plaintiff proposed to amend the statement of claim as touching on and as underlined in the following paragraphs of the proposed Amended statement of claim, paragraphs 11 – 17 which state as follows:

11: Alhaji Adamu J. Gongong Maliki in exercise of the right of ownership gave one Christopher Tanko a piece of Land measuring about 30m x 45m leaving a remaining piece of land measuring 30m x 18m which Mohammed Adamu Gongong a son to Alhaji Adamu J. Gongong Maliki later sold to the Plaintiff in the presence of witnesses which included Ali Jarma.

12: The Plaintiff avers that both Christopher Tanko and Mohammed Adamu Gongong transferred title of their plots of land to him vide purchase which were evidenced in writing. Copies of said receipt/sale agreements are hereby pleased (sic).

(13) The Plaintiff avers that it was after the completion of the purchase price that he caused Christopher Tanko to include the measurement of the additional piece of land purchased from Mohammed Adamu Gongong in the formal agreement between Christopher the Plaintiff.

(14) The Plaintiff avers that Adamu Gongong also sold an adjoining piece of land comprising three plots of land to Late Alhaji Kagal

(15) Sometime in 2003, when late Alhaji Kagal intended to fence the said pieces of land purchased from Adamu Gongong, it was difficult for him to do so, as plot No. 13 belonging to the Plaintiff happened to be in the middle of the three plots numbering 11, 15 & 17.

16. The Plaintiff avers that he was approached by Alhaji Kagal in order to make an alternative agreement so as to enable late Kagal fence his plots of land and commence erecting same

17. The Plaintiff avers that he was offered and shown Plot No. 11 which happened to be at the edge and shares boundary with a road in exchange for plot No. 13, which he inspected and agreed to the exchanged”
See pages 34 – 35 of Record of Appeal.

I have also averted my mind to the relevant pieces of evidence of the PW2 as can be found at pages 20 – 21 of the Record of Appeal.

Now, on the strength of the facts and circumstances in the application before the Court below, was the amendment sought merely to patch up any differences between the case of the Appellant as put forward by the PW2 in his evidence and Exhibit 2?

Having had a calm review of the submissions of counsel to the parties and having considered the proposed amendments in line with the relevant principles of law on amendment as copiously restated earlier in this judgment and as are replete in the several decided cases referred to in this judgment, I cannot but agree completely with the submission of learned counsel to the Respondent and I so hold that the intended amendments as revealed in paragraphs 14, 15, 16 and 17 of the proposed amended statement of claim were clearly a clever attempt by the Appellant to patch up the differences between the pleadings of the Appellant as it stood and the evidence of the PW2 to the contrary under cross examination.

In my view therefore, the Court below was perfectly right when it held, and here I am specifically referring to paragraphs 14, 15, 16 and 17 of the proposed amended statement of claim, that these intended amendments were clearly meant to patch up the case of the Appellant on the face of the cross examination evidence of the PW2 and therefore, would clearly overreach the Respondent. It was consequently, properly and rightly refused by the Court below, which decision on these paragraphs of the proposed amended statement of claim cannot be faulted and such discretion judicially and judiciously exercised by the Court below cannot under any guise or known principles of law be interfered with by this Court. See Hon. Justice Kalu Anyah V. African Newspaper of Nig. Ltd. (supra) at P. 319; Nabson V. Mobil Oil (supra) at P. 254; Chief Ojah V. Chief Ogboni (supra) at P.77; Oladiti V. Sungas Co. Ltd (supra) at P. 433; Worldgate Ltd. V. Senbajo (supra) at P. 681.

Furthermore, on the second reason proffered by the Court below, for refusing the application on the ground that the amendment intended to introduce a substantially radical different facts on the root of title earlier pleaded by the Appellant, was the Court below right in its decision and exercised its discretion judicially and judiciously or not?

The learned counsel to the Appellant had relied on the case of Amason V. R.T.D.C. (supra) to contend that the Court below in coming to the decision that the intended Amendments seek to introduce substantial radical fact on his root of title different from the root of title earlier pleaded was a pronouncement touching on issues in the substantive suit and ought not to have been made at the interlocutory stage of the ruling in an application for amendment by the Appellant.

I have averted my mind to the above submission and read through the law report of the case of Amason V. R.T.D.C. (supra) and I am of the view that whether the above contention by the Appellant’s counsel was right or wrong would invariably depend on the resolution of the question; whether the Court below in coming to the decision that the amendment sought would introduce a radically different facts in the Appellant’s root of title earlier pleaded by the Appellant was right or wrong?

The case of the Appellant as Plaintiff as revealed from the statement of claim is clearly to the effect that he bought the land in dispute from one Christopher Tanko, who testified as PW2 and also another portion of land from one Ali Jarma, both of whom bought or got their respective parcels from their common grantor, one Alhaji Adamu I. Gongong Maliki, the District/Village Head of the area behind the State Security Service Office Complex in Jalingo, the area the land in dispute is situate. See paragraphs 3, 10, 11, 12, and 13 of the statement of claim at pages 4 – 5 of Record of Appeal.

However, but curiously by the amendments sought, the case of the Appellant as Plaintiff would seem to be that the land in dispute was the parcel of land at Plot 11, which was offered to the Appellant as an alternative land and in exchange for his Plot 13 which he bought from PW2 as agreed between the Appellant and one Alhaji Kagal now late to enable Alhaji Kagal fence his own lands at plots 11, 15 and 17 of which plot 13 belonging to the Appellant as Plaintiff and bought from the PW2 was in the middle thereof.

In the light of the above facts and circumstances as sought to be pleaded in the proposed amended statement of claim, could the Court below have been able legally and logically to resolve the issue of the purpose and intendment of the amendments sought without reference to the original pleading and proposed amended statement of claim of the Appellant as Plaintiff? I think not.

In my view therefore, the reference by the Court below to the case of the Appellant as put forward in the existing statement of claim and the case sought to be put forward in the proposed amended statement of claim was perfectly in order without which it was impracticable, in my view, for the Court below to decide the issue of the relevance of the amendments sought in line with the well settled principle of the law on amendment, chiefly amongst which is the well settled principle that an amendment which intends to introduce a different case or change the character of the case of the party ought not to be allowed and authorities abound on this point. See Awure V. Adisa (supra) at P. 3779; Nabson V. Mobile Oil (supra) at P. 254; Okafor V. Ikeanyi (supra) at P. 99; Chief Ojah V. Chief Ogboni (supra) at P. 77; Aboyeji V. Momoh (supra) at P. 99; Kode V. Yusuf (supra).

In my view therefore, the Court below was right in its reference to the case of the Appellant as revealed on the existing statement of claim and the intended case of the Appellant at revealed on the purposed amended statement of claim and by doing so did not, as erroneously contended, with due deference, by the learned counsel to the Appellant, made any pronouncements touching on any issues in the substantive suit.

The case of Amason V. R.T.D.C. (supra), though it remains good law, is not apposite to the facts and circumstances of this appeal and in my view therefore, does not avail the Appellant. In that case the Court succinctly restated the germane principle of law that trial Courts as well as all other Courts must refrain from pronouncing on issues touching on the substantive matter before it while dealing with and deciding interlocutory matters, when it poignantly stated at P. 21 thus:
“A court must avoid comments on issues in the substantive suit when dealing with an interlocutory application. This is to avoid the possible effects of prejudicial comments. In the instant case, the trial court expressed a prejudicial, biased and pre-conceived opinion on the Appellants’ case in its decision on an interlocutory application.”

I have already held that the Court below never made any pronouncements in any way prejudicial to the substantive case of the Appellant as Plaintiff but merely considered the intendment of the proposed amendment on the case on the existing pleadings of the Appellant.

Now, going by the proposed amendments in paragraphs 14, 15, 16, and 17 of the proposed amended statement of claim, it is clear and as rightly held by the Court below at pages 46 – 47 of the Record of Appeal that the intended amendment in these paragraphs would clearly change the root of title of the Appellant to the land in dispute from the PW2 as pleaded in the existing statement of claim to one Alhaji Kagal as sought to be introduced by the averments in the proposed amended statement of claim in paragraph 14, 15, 16 and 17 thereof.

In my view, such an amendment if allowed would clearly overreach the Respondent as rightly held by the Court below in line with the contention of the Respondent in his counter affidavit and by his vehement objection to the application before the Court below.

I now come to the third reason proffered by the Court below in refusing in its entirety the amendments sought by the Appellant, which is that the amendments sought, and here I am referring to the entire amendments sought including as underlined in paragraphs 11, 12 and 13 of the proposed amended statement of claim, were not intended to bring the pleadings of the Appellant in line with evidence already led, when the Court below at page 47 of Record of Appeal held thus:
“Mr. Adekina of counsel to the Appellant has argued that one of the reasons for permitting the amendment is to bring the pleadings in line with the evidence before the Court. I quite agree with him and the case of SPDC V. Ambah (supra) cited by the learned counsel to the Plaintiff is good law. However, I have gone through the evidence on record and there is nothing in the evidence of PW1 and PW2 (the only witnesses so far) near to the amendments sought. In other words, there is no evidence before me that is in line with the amendment sought.”

On the one hand, it is the contention of the Appellant that the above decision was contrary to the established evidence before the Court below and for which the application ought to have been granted to enable the Appellant amend his pleadings in line with the evidence already led before the Court below and which would not occasion any injustice to the Respondent.

On the other hand, the Respondent, as expected, contended to the contrary that there was no evidence on the record for which the pleading of the Appellant as Applicant ought to be amended to bring in line with.

Now, was the Court below right in its decision that there was nothing in the evidence before it on which the Appellant could have been granted leave to amend the pleadings to bring it in line with the evidence already led? In other words, did the Court below exercise its discretion in this aspect of the decision appealed against on a proper appraisal of the facts and circumstances before it and in line with the applicable principles of law?

The starting point in the resolution of this aspect of the appeal is simply the Record of appeal as showing the entirety of the evidence already led by the Appellant through his witnesses so far; that is PW1 and particularly PW2, one Christopher Tanko.
In his evidence, PW2, Christopher Tanko testified inter alia at page 22 of the Record of Appeal thus:
“I sold the plot to the Plaintiff. There is an agreement to that effect. The sales agreement between the Plaintiff and myself has two witnesses, Hon. Ibrahim Adamu was my witness and Alhaji Isiaka Mohammed was the Plaintiff’s witness. There was a small land behind that one I sold to the plaintiff, which Hon. Ibrahim Adamu, son of Alhaji Adamu Gongong added to the Plaintiff. All of us signed that document. The document was signed on 9th April, 2002….”

The above pieces of evidence were already before the Court below as part of the evidence in chief of the PW2. These pieces of evidence, no doubt, are clearly not evidence given on any facts as pleaded in the existing statement of claim, but yet were admitted in evidence and the Appellant by the amendments sought in paragraphs 11, 12 and 13 of the proposed amended statement of claim seek to bring his pleading in line with these pieces of evidence already led before the Court below by PW2.

Now, was the Court below on the fact of the above pieces of evidence, as led by PW2 as part of the case of the Appellant, right when it held that there was no evidence before the Court below for which the Appellant sought to amend his pleadings to bring it in line with the evidence already led? I think not.

In my finding therefore, the Court below was, with due deference, hopelessly wrong and reached a very perverse decision that there was nothing in evidence before the Court below for which the Appellant can rightly be allowed to amend his pleading to bring it in line with such already existing evidence even on the printed record at page 22 of the Record of Appeal.

In this vein, the onus to show prejudice or the overreaching nature of the amendment sought was on the Respondent, which onus in my finding on the proposed amendments in paragraphs 11, 12 and 13 was not discharged by the Respondent as required of him by law. See Amason V. R.T.D.T.C. (supra) @ Pp. 209 – 210.

It would appear that the Court below having rightly averted its mind to the above position in the law as brought to its attention by the learned counsel to the Appellant, however, regrettably fell into grave error in its application of the principle of law to the facts clearly established by the affidavit evidence of the Appellant as Applicant and the recorded evidence of PW2 before it.

The law is and has always been that the exercise of discretion by a Court must not be whimsical or lackadaisical without due care and attention to the facts and circumstances of the case before it. Similarly, where it is shown that a trial Court had acted on some wrong principles of law or as in the instant appeal on a misapprehension of the facts and thus rendering the exercise of the discretion of the Court below in this specific issue as arbitrary and indeed patently wrong, an Appellate Court would most certainly interfere with such wrongful exercise of discretion.
In both cases as above and also additionally in cases in which an Appellate Court reaches a clear conclusion, as I have done in this aspect of the appeal that there has been a wrongful exercise of the discretion by the Court below as no weight or no sufficient weight was given to the glaring evidence of the PW2 before the Court below and thus rendering the decision reached thereby by the Court below on paragraphs 11, 12 and 13 of the proposed amended statement of claim clearly perverse and an injudicious exercise of its discretion by the Court below, such a wrong and perverse decision cannot be allowed be stand but must be set aside on appeal. See Ikechukwu V. Nwoye (supra) at P. 239 paras. B – D; Sonnar Nig. Ltd. V. Norwind (supra) at P. 520; Ikenta Best Nig. Ltd V. AG of Rivers State (supra) at P. 612; UBA V. Staban GMBH (supra) at P. 317; Enekebe V. Enekebe (supra) at P. 102; Solanke V. Ajibola (supra) at P. 46; Chief Banna V. Telepower Nig. Ltd (supra) at P. 198.

In the circumstances therefore, and based on the findings, reasons and applicable principles of law contained in this judgment, I hold firmly that in reference to paragraphs 14, 15 16 and 17 of the proposed amended statement of claim, the Court below was right and did exercise its discretion judicially and judiciously in refusing the application to amend the statement of claim of the Appellant as touching on these proposed amendments in paragraphs 14, 15, 16 and 17 of the proposed amended statement of claim.

In the result, the Appeal against the decision of the Court below at it touches on these paragraphs 14, 15, 16 and 17 of the proposed amended statement of claim fails for lacking in substance and that part of the decision of the Court below is hereby affirmed.

However, in reference to the proposed amendments in paragraphs 11, 12 and 13 of the proposed amended statement of claim, the Court below clearly acted arbitrarily and in misapprehension of the facts and evidence already led before it as shown in the Record of Appeal at page 22 and thus misconceived and misapplied the applicable law to the established facts before it.

In the result, the Appeal against the decision of the Court below as it touches on these paragraphs 11, 12 and 13 of the proposed amended statement of claim has merits and therefore, succeeds.

Consequently, I hold that the Appeal partly succeeds and the sole issue for determination is hereby resolved partly in favour of the Appellant. The Appeal is hereby partly allowed and the decision of the Court below as touching on paragraphs 11, 12, and 13 of the proposed amended statement of claim is hereby set aside.

The Appellant is hereby granted leave to amend the statement of claim as underlined in paragraphs 11, 12, and 13 of the proposed amended statement of claim, but paragraphs 14, 15, 16 and 17 of the proposed amended statement of claim remained refused as rightly decided by the Court below.

The Appellant shall within 14 days from the date of this judgment file and serve on the Respondent the amended statement of claim, including therein paragraphs 11, 12 and 13 but to the exclusion of paragraphs 14, 15, 16 and 17 before the Court below.

Consequently, Suit No: TRSJ/3/2007: Alhaji Abdullahi Adamu V. Mallam Mumkaila Isa filed by the Appellant before the Court below is hereby remitted to the Chief Judge of Taraba State High Court for reassignment to any other Judge of Taraba State High Court other than Hon Justice Nuhu S. Adi, of the Court below.

I make no order as cost.

JUMMAI HANNATU SANKEY, J.C.A.: I have had the advantage of reading in draft a copy of the lead Judgment by my learned brother, Georgewill, JCA. He has fully discussed the facts of the dispute leading to this Appeal and the applicable principles of law. I entirely agree with him.

After a cool and calm view of the facts, the pronouncements and findings of the learned trial Judge in his refusal to allow the Appellant to amend his Statement of Claim in terms of paragraphs 11 – 13, with due deference, I have come to the irresistible conclusion that there has been a wrongful exercise of judicial discretion by the learned trial Judge. Evidently, contrary to the finding of the learned trial Judge thereon, the amendments of those three (3) paragraphs were merely intended to bring the pleadings in line with the evidence already before the trial Court.

However, with regard to paragraphs 14 – 17, it is manifest that the learned trial Judge acted quite rightly, as the Appellant attempted, by means of the amendment sought, to have a second bite at the cherry after the PW2 had testified, in a manner which was contrary to the pleadings of the Plaintiff. By these proposed amendments, he sought to radically change his pleadings on his root of title. This would result in a radical change of his original case on the pleadings upon which issues had long been joined. This would, without a doubt, overreach the Respondent, and so, in that circumstance, the exercise of the trial Court’s discretion to refuse the amendment sought in respect to paragraphs 14 – 17, was properly exercised.

In view of this and the cogent reasoning contained in the lead Judgment of my learned brother, Georgewill, JCA, I agree that the Appeal succeeds in part. I endorse the orders made in the lead Judgment, inclusive of the order on costs.

ADAMU JAURO, J.C.A.: I read in draft the lead judgment just delivered by my learned brother BIOBELE ABRAHAM GEORGEWILL, J.C.A. The judgment has exhaustively considered the issue of amendment of pleadings, I am in agreement with the reasoning and conclusion contained therein, which I also adopt as mine.
I abide by all consequential orders made.

Appearances

M. P. Sunday Esq. For Appellant

AND

P. M. Shagnah Esq., holding the brief of D. G. Tukura, Esq. For Respondent