ALHAJI BELLO BARAU v. CHARLES MAFUA ESQ
(2014)LCN/7499(CA)
In The Court of Appeal of Nigeria
On Monday, the 3rd day of November, 2014
CA/K/294/2013
RATIO
APPEAL: DETERMINATION OF AN APPEAL; WHETHER AN APPEAL IS DETERMINED BASED ON COGENT AND CREDIBLE ARGUMENT SUPPORTED BY EVIDENCE AND WHETHER AN APPELLANT WILL SUCCEED ON THE STRENGTH OF HIS CASE
An appeal is determined based on cogent and credible argument supported by evidence. It follows therefore that an Appellant can not be entitled to judgment simply because the Respondent has abandoned his defence by defaulting to file his brief of argument.
In Unity Bank Plc v. Bouari (2008) All FWLR (Pt. 416) 1825 at 1848, the Supreme Court, per Ogbuagu JSC held that:-
“The failure of a Respondent to file a reply brief is immaterial. This is because an Appellant will succeed on the strength of his case. But a Respondent will be deemed to have admitted the truth of everything stated in the Appellant’s brief in so far as such is born out by the records. In other words, it is not automatic. An Appellant must succeed or fail on his own brief.
John Holt Ventures Ltd v Oputa (1996) 9 NWLR (Pt.470) 101 CA,
Onyejekwe v. The Nigeria Police Council (1996) 7 NWLR (Pt 463) 704 CA; Waziri v. Waziri (1998) 1 NWLR (Pt.533) 322 CA; U.B.A. Plc v. Ajileye (1999) 13 NWLR (Pt.633) 116 CA”. per. ABDU ABOKI, J.C.A.
COURT: INTERFERENCE; WHETHER THE COURT AN APPELLANT COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT THAT IS PERVERSE
This Court can interfere with the findings of fact by a trial Court where such findings are not correct, lawful and just. See; SPDC (Nig) Plc v. Dino (2007) 2 NWLR (Pt.1019) 438. per. ABDU ABOKI, J.C.A.
COURT: THE DUTY OF THE COURT; THE DUTY OF THE COURT IN DECIDING MATTERS
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 Vs Oguneyehun (2008) 1 NWLR (Pt 1068) 397, Akaninwo Vs Nsirim (2008) 9 NWLR (Pt 1093) 439 and Awure Vs Iledu (2008) 12 NWLR (Pt.1098) 249. Per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
PRACTICE AND PROCEDURE: APPLICATION FOR AMENDMENT; SUSTAINING AN APPLICATION FOR AMENDMENT
The onus on an application seeking leave to amend is on the party seeking the indulgence to show that the proposed amendment does not run foul of the recognized principles. It commonsensical that the stage of the proceedings at which a court is called upon to exercise its discretion will determine the quality and quantity of materials that an applicant must put before the court to succeed. The quality and quantity of materials needed to sustain an application made at the commencement of trial cannot be the same that will be required for an application made after the close of the case of one of the parties; the latter application requires a much higher quality and quantity of materials. Thus, the courts have held that an application for amendment brought at a late stage of proceedings and which will entail the calling of additional evidence or affect the character of the case will require a higher quality of evidence to sustain than an amendment proposed before the commencement of trial – Laguro Vs Toku (1992) 2 NWLR (Pt.223) 278 and Ita Vs Dadzie (2000) 4 NWLR (Pt.652) 168. Per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
COURT: COURT’S DISCRETION; WHETHER IT IS THE COURT’S DISCRETION TO GRANT AN APPLICATION TO AMEND AND THE DUTY OF THE COURT TO EXERCISE ITS DISCRETION JUDICIALLY AND JUDICIOUSLY
Now, it is trite that an application to amend pleadings is an appeal to the discretionary jurisdiction of the Court.
It is also 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 Vs NNPC (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 Vs Yakubu (2008) 14 NWLR (Pt.1106) 104. The court’s discretion must be exercised so as to do what justice and fur play may require having regards to the facts and circumstances of each particular case – Mamman Vs 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 Vs Sanu (2008) 15 NWLR (Pt 1109) 1. Per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
COURT: INTERFERENCE; WHETHER AN APPELLANT COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT THAT IS NOT PERVERSE
An appellate Court does not ordinarily interfere with the exercise of discretion by a lower Court but it will do so where it is evident from the facts as contained in the records of appeal that the lower Court exercised its discretion upon wrong principles of law or improperly, or that a miscarriage of justice resulted or would result therefrom – Integration (Nig) Ltd Vs Zumafon (Nig) Ltd (2014) 4 NWLR (Pt.1398) 479 and Okorocha Vs Peoples Democratic Party (2014) 7 NWLR (Pt.1406) 213. Per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
Between
ALHAJI BELLO BARAU Appellant(s)
AND
CHARLES MAFUA ESQ. Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This appeal is against the interlocutory decision of the Kaduna State High of Justice, Kaduna delivered on the 9th October, 2012 by M.T.M. Aliyu J.
The Respondent to this appeal who was the Plaintiff at the lower Court took out a writ of summons dated 10th of April, 2012 together with a statement of claim dated 16th August, 2010 in which he claimed against the Defendant who is the Appellant in this appeal as follows.
(1). The sum of N8,453,727.00 (Eight Millio, Four Hundred and Fifty-Three Thousand, Seven Hundred and Twenty-Seven Naira) only being professional fees owed the Plaintiff by the Defendant for all the services provided in respect of Suit No. KDH/KAD/728/2003; FHC/KD/CS/10/09 and KDH/KAD/387/08.
(2). Interest on the said sum of N8,453,727.00 (Eight Million, Four Hundred and Fifty-Three Thousand, Seven Hundred and Twenty-Seven Naira) only at the rate of 15% per annum from the date of filing this suit until judgment is delivered, and thereafter at the rate of 10% per annum on the judgment sum until same is fully liquidated.
(3). Cost of this suit.
(4). IN THE ALTERNATIVE, the payment of such sum as shall be determined by the Court based upon the quantum of service provided by the Plaintiff to the Defendant.
The Defendant in response filed his statement of defence pursuant to motion on notice dated 10th November, 2010.
On receiving the Defendant’s statement of defence the Plaintiff filed a reply dated 16th December, 2010. The Defendant also amended paragraphs 14 to conform with the true position of things as it happened and introduced paragraph 15 to counter the Plaintiff’s assertion as raised in the reply to statement of defence, particularly paragraph 4(e) of the reply dated 2nd Day of March, 2012.
The Plaintiff on his part filed a counter affidavit with written address to the Defendant’s motion on notice dated 15th June, 2012.
The lower Court in its ruling dated 9th October, 2012 on the Defendant’s motion refused the application for Amendment.
It is against this ruling that the Defendant appeal to this Court. In accordance with the rules of this Court the Appellant filed his brief of Argument on 4th March, 2014 and deemed filed on 26th June, 2014 in which he raised a lone issue for determination as follows:
“Whether the trial court was right in refusing the Defendant’s Amendment as contained in paragraph 15 of his Amended Statement of Defence dated 15th June, 2012 in light of the Plaintiff’s Assertion in paragraph 4(e) of his reply to Statement of Defence dated 16th December, 2010”?
The Respondent on his part did not file any Brief of Argument instead on 2nd October, 2014 he filed a notice dated 26th September, 2014 in which he stated that he was not contesting the appeal as he has nothing to urge the Court.
On 13th October, 2014 when the matter came up for argument, learned counsel to the Respondent M. O. Abdulsalam Esq. reaffirmed their position and urged the Court to allow the appeal.
The ruling of the lower Court which gave rise to this appeal inter alia reads at page 153 as follows:
“It is my view that having taken steps to prove fraud in relation to the amount allegedly paid to the Plaintiff as the Defendant did in KDH/KAD/75/12, the only conclusion to draw from the amendment in this case to introduce the issue of fraud is that the Defendant desire the embarrassment of the Plaintiff and this Court will not allow that. I refuse the leave to allow the Defendant amend to allege fraud including the amendment in paragraph 15 of the Proposed Amendment which is baseless. The leave granted the Defendant is only to amend the actual amount allegedly paid to the Plaintiff by B. Stabilini”. (underlined mine for emphasis).
I have earlier stated in this judgment that the Respondent failed or neglected to file his Brief of Argument in this appeal. It is trite that without a brief of argument filed and served, there can be nothing to emphasize and clarify in oral argument. See:-
Ogbu v. Urum (1981) 12 NSCC 81 at 85;
Mini Lodge Ltd v. Ngei (2007) WRN (1014) 54 at 68.
It follows therefore that a Respondent who fails to file his brief of argument as in the instant case will not be heard in oral argument and will be deemed to have admitted the truth of everything stated in the Appellant’s brief in so far as such is borne out by the record. See:-
Lagricorn Co. Ltd v. U.B.N. Ltd (1996) 4 NWLR (Pt.441) 185.
An appeal is determined based on cogent and credible argument supported by evidence. It follows therefore that an Appellant can not be entitled to judgment simply because the Respondent has abandoned his defence by defaulting to file his brief of argument.
In Unity Bank Plc v. Bouari (2008) All FWLR (Pt. 416) 1825 at 1848, the Supreme Court, per Ogbuagu JSC held that:-
“The failure of a Respondent to file a reply brief is immaterial. This is because an Appellant will succeed on the strength of his case. But a Respondent will be deemed to have admitted the truth of everything stated in the Appellant’s brief in so far as such is born out by the records. In other words, it is not automatic. An Appellant must succeed or fail on his own brief.
John Holt Ventures Ltd v Oputa (1996) 9 NWLR (Pt.470) 101 CA,
Onyejekwe v. The Nigeria Police Council (1996) 7 NWLR (Pt 463) 704 CA; Waziri v. Waziri (1998) 1 NWLR (Pt.533) 322 CA;
U.B.A. Plc v. Ajileye (1999) 13 NWLR (Pt.633) 116 CA”.
In the instance case the trial court had refused the appellant’s leave to amend certain paragraphs of his statement of defence, which gave rise to this appeal. In determining the issues placed before the court, this Court has the power to look at every thing contained in the record of appeal before it, in order to enable it arrive at a just decision of the Appeal and to see whether the trial Court exercise its discretion judicially and judiciously. See:-
Chevron (Nig) Ltd v. Onwugbelu (1996) 3 NWLR (Pt.437) page 404; First Fuels Ltd Vs NNPC (2007) 2 NWLR (Pt.1018) 276;
Bello Vs Yakubu (2008) 14 NWLR (Pt.1106) 10-4.
This Court can interfere with the findings of fact by a trial Court where such findings are not correct, lawful and just. See;
SPDC (Nig) Plc v. Dino (2007) 2 NWLR (Pt.1019) 438.
Although the Respondent in this appeal failed to file his brief of argument but instead filed a notice of non objection to the appeal, I however find it very prudent to examine the record of appeal as well as the Appellant’s submission as contained in his brief of argument in order to discover whether the Appellant has made out a good and strong case on why the appeal should be allowed.
In the instant case the exercise of the discretion by the lower Court was based on matter not placed before it. The issue of not wanting to embarrass the Plaintiff is extraneous. Hence, the discretion was not exercised judiciously and judicially. See; CFAO (Nig.) Plc v. Sanu (2008) 15 NWLR (Pt.1109) page 1. There is merit in the appeal and it is hereby allowed.
The application of the Appellant dated 15th of June, 2012 seeking leave to amend his statement of defence is hereby granted and leave is granted to the Appellant to file the amended statement of defence in the proposed terms.
There is no order as to costs.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Abdu Aboki, JCA. His Lordship has considered and resolved the issues in contention in this appeal. I abide the conclusions reached therein.
The Appellant in this appeal was the defendant in the lower Court and the Respondent was the plaintiff. The appeal arose from the Ruling of the lower Court refusing an application filed by the Appellant to amend his statement of defence. It is a fundamental principle 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 Vs Oguneyehun (2008) 1 NWLR (Pt 1068) 397, Akaninwo Vs Nsirim (2008) 9 NWLR (Pt 1093) 439 and Awure Vs Iledu (2008) 12 NWLR (Pt.1098) 249.
The onus on an application seeking leave to amend is on the party seeking the indulgence to show that the proposed amendment does not run foul of the recognized principles. It commonsensical that the stage of the proceedings at which a court is called upon to exercise its discretion will determine the quality and quantity of materials that an applicant must put before the court to succeed. The quality and quantity of materials needed to sustain an application made at the commencement of trial cannot be the same that will be required for an application made after the close of the case of one of the parties; the latter application requires a much higher quality and quantity of materials. Thus, the courts have held that an application for amendment brought at a late stage of proceedings and which will entail the calling of additional evidence or affect the character of the case will require a higher quality of evidence to sustain than an amendment proposed before the commencement of trial – Laguro Vs Toku (1992) 2 NWLR (Pt.223) 278 and Ita Vs Dadzie (2000) 4 NWLR (Pt.652) 168.
The records of appeal show that trial in this matter commenced before the lower Court on the 28th of February, 2012 and that in course of the evidence in examination in chief of the Respondent as the first plaintiff witness, Counsel to the Respondent applied for an adjournment to amend the Reply filed to the Statement of Defence of the Appellant. The records show that the application to amend the Reply to the Statement of Defence was heard and granted by the lower Court on the 27th of March, 2012. In apparent response to the amended Reply, the Appellant filed a motion on notice dated the 15th of June, 2012 to amend his Statement of Defence. In the affidavit in support of the application, the Appellant deposed that the amendment was sought to plead some new facts that came to his knowledge after the filing of the Statement of Defcnce and which were germane to his case and to the issues in controversy in the matter. In his counter affidavit to the application, the Respondent did not contest the assertion that the facts sought to be added by the proposed amendment were new facts that came to the knowledge of the Appellant after the filing of the Statement of Defence. Rather, his case was that since the proposed amendment sought to include an allegation of fraudulent conversion/concealment of money he received on behalf of the Appellant, it was intended to embarrass him. The lower Court in refusing the Appellant’s application stated that “… the only conclusion to draw from the amendment in this case to introduce the issue of fraud is that the defendant desire the embarrassment of the plaintiff and this Court will not allow that.”
Now, it is trite that an application to amend pleadings is an appeal to the discretionary jurisdiction of the Court.
It is also 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 Vs NNPC (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 Vs Yakubu (2008) 14 NWLR (Pt.1106) 104. The court’s discretion must be exercised so as to do what justice and fur play may require having regards to the facts and circumstances of each particular case – Mamman Vs 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 Vs Sanu (2008) 15 NWLR (Pt 1109) 1.
An appellate Court does not ordinarily interfere with the exercise of discretion by a lower Court but it will do so where it is evident from the facts as contained in the records of appeal that the lower Court exercised its discretion upon wrong principles of law or improperly, or that a miscarriage of justice resulted or would result therefrom – Integration (Nig) Ltd Vs Zumafon (Nig) Ltd (2014) 4 NWLR (Pt.1398) 479 and Okorocha Vs Peoples Democratic Party (2014) 7 NWLR (Pt.1406) 213. The application of the Appellant to amend the pleadings, in the instant case, was done at an early stage in the trial and did not thus require too high quality of evidence to sustain and the grant or refusal of an application to amend is determined by the justice of a matter, and not on the whether the proposed amendment would bruise the ego of one of the parties. The lower Court, in the instant case, predicated its exercise of discretion on matters extraneous to the issues in controversy before it and the exercise of discretion was thus manifestly wrong, arbitrary and injudicious. This is a proper case for this Court to interfere.
It is for these reasons, and the more reasons given in the lead judgment, that I also find merit in this appeal and I allow the appeal. The decision of the High Court of Kaduna contained in the Ruling delivered by Honorable Justice M.T.M. Aliyu on the 9th of October, 2012 in Suit No KDH/KAD/740/2010 is set aside. The application of the Appellant dated the 15th of June, 2012 seeking leave to amend his Statement of Defence is hereby granted and leave is granted to the Appellant to file the amended Statement of Defence in the proposed terms. I also make no order on costs.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: This appeal is against the interlocutory decision of the Kaduna State High Court delivered by M.T.M. Aliyu J on the 9th October, 2012 refusing leave to the Appellant, as Defendant, to amend his Statement of Defence and to file a new witness deposition to reflect the amendment. The said Motion contained on page 83 of the Record was for the following:
1. An order granting leave to the defendant in this case to amend his statement of defence by amending paragraph 14 of the original statement of defence and adding a new paragraph 15 thereof.
2. An order granting leave to the defendant to file a new witness deposition thereof to reflect the amendment.
3. An order deeming the amended statement of defence and the new witness deposition annexed hereto and marked as Exhibit A and B respectively as duly filed and served the necessary filing fees having been paid.
The trial Judge refused the application on the ground that the amendment sought was to introduce the issue of fraud which in the Court’s opinion was to embarrass the Respondent.
The Respondent, in response to the appeal, filed a Notice of Non Contest. There being no objection to this appeal I, in agreement with my learned brother, Abdu Aboki, JCA and for the fuller reasons given by him, allow the appeal.
Leave is granted to the Appellant to amend his Statement of Defence as prayed, by amending paragraph 14 and adding a new paragraph 15 as reflected in the Amended Statement of Defence exhibited to the Appellant’s Motion.
Leave is also granted to the Appellant to file a new Witness Deposition in terms of the deposition exhibited to the said Motion.
Appearances
No appearance for the AppellantFor Appellant
AND
M.O. Abdulsalam Esq.For Respondent
