BOTSHA v. JANG (2020)

BOTSHA v. JANG

(2020)LCN/14791(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Thursday, November 26, 2020

CA/J/105/2018(R)

RATIO

COURT: ESSENCE OF THE RULES OF COURT FIXING TIME FOR EXCHANGE OF PROCESSES BETWEEN PARTIES

the law is now fairly well settled that the rules the Court (and I want to think that includes orders of Court too) fixing time for exchange of processes between parties is for the convenience of parties so they can waive such late filing and service, such service being only irregular and not invalid: see Atanda v. Ajani (1989) 3 NWLR (PT 111) 511 @ 545 (S.C.); Dike Nwora v. U.B.A Plc (1978) 2 L.R.N. 149; S.P.D.C.N. Ltd v. Egweaja (2016) 10 NWLR (PT 1519) 1 @ 10-11; Ndika v. Chiejina (2012) FWLR (PT 117) 1178 @1164, 1198. PER MOSES UGO, J.C.A.

EVIDENCE: EFFECT OF FAILURE TO CHALLENGE DISPOSITIONS IN AFFIDAVIT

In the absence of any further affidavit by respondent challenging these depositions, it simply means that he admitted all of them (see Section 21(1) of the Evidence Act 2011). PER MOSES UGO, J.C.A.

APPEAL: POWER OF THE COURT TO CORRECT ERRORS IN RECORD OF APPEAL

Whichever way, an error, which did not by any means affect the competence of the Notice of Appeal competently filed by appellant/applicant, a living person, has been made. That is an error which this Court possesses sufficient powers, both inherent, under its enabling Law and the rules of this Court, to correct. It is of no moment how that blunder came about, when it was made and how late the application to correct is made. Courts do not exist to punish blunders of parties; they rather exist to settle their disputes accordance to substantial justice. In Akinyede & Ors v. Opere & Ors (1967) 1 ALL NLR 302 @ 305 (SC) it was said that:
“It is not in doubt that the Court has an inherent power to order the record of appeal of the trial Court to be amended so as to comply with the facts proved and the decision given.”
In Metal Construction (W.A.) Ltd & 2 Ors. v. Migliore & Anor. (1979) LPELR-1867 (SC) 2-13 the Supreme Court again said that:
“A Court of Appeal has an inherent power to order the record of appeal of the trial Court to be amended so as to comply with the facts proved before the Court and the decision given by it. This is very necessary power which the Court has always exercised if and when necessary to prevent the occurrence of substantial injustice; whether the amendment be formal (as in Gbogbolulu of Vakpo v. Head Chief Hodo (1941) 7 WACA 164) or quasi substantial (as in Clark v. Wood (1881-2) 9 QBD 276.).”
In Okeowo & Ors v. Migliore & Ors. (1979) N.S.C.C. 210 the apex Court (Idigbe J.S.C.) was even more effusive, with Idigbe, J.S.C., saying @ p. 238-239 that:
“It only remains for me to consider the submissions of Chief Williams on behalf of the appellants that there being no amendment of the prayer in the summons the learned Judge in the Court below erred in ordering the calling of a meeting of the company when the prayer was for the calling of a meeting of the Board. The Court of Appeal, he contended, was accordingly wrong in upholding an order which granted a relief that had not been sought. As is well known, the common rule of pleadings is that a party is bound by his own pleading. The strict application of this rule is capable sometimes of leading to miscarriage of justice hence the Courts have been invested with wide powers of amendment of pleadings. And so under general powers of amendment vested in them, the Courts, for the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in proceedings before them can, at any stage of the said proceedings either of their own motion or on the application of any of the parties thereto, order any document in the proceedings to be amended on such terms as to costs as may appear to them to be just. The Court below did not order any amendment of the originating summons to be carried out nor was any application therefore made to it. It does seem however that having analyzed the evidence before it, that Court decided, in the interest of justice, to determine the real question in controversy as, pursuant to the provisions of Section 11 of the Federal Revenue Court Decree No. 13 of 1973, it was within its competence to do. I agree with Chief Williams that not having first carried out an amendment of the prayer in the originating summons it erred in law in proceeding to order as it did. There was therefore, a manifest defect in the record of the proceedings on appeal before the Federal Court of Appeal. That Court however, in exercise of its powers under Section 16 of the Federal Court of Appeal Decree No. 43 of 1976 can amend such manifest defect and did amend the same. The provisions of Section 22 of the Supreme Court Act are to the same effect:
“The rule of conduct of the Courts in matters relating to amendment of pleadings is that however careless or negligent the first omission to ask for amendment may have been and however late the application therefore, the amendment should be allowed by the Court either on its own motion or on the application of a party to the proceedings, if such amendment can be made without injustice to the opposite party (i.e the other side); and there can be no injustice if the opposite party can be compensated by the award in his favour of the costs occasioned by the amendment. Learned counsel for the appellant contends, and I agree with him that the failure of learned counsel for the respondents to apply in the Court below and even in the Court of Appeal for leave to amend the prayer in the summons is in bad taste. As however has been said, Courts “do not exist for the purpose of punishing bad taste” (Per Bowen L.J. in Cropper v. Smith (1884) 26 Q.B.D. 700 at 712). The duty of the Courts is to determine the real issues in controversy as they appear on the evidence, although the conduct of the case on behalf of the litigant may have been slipshod or even cavalier. The locus classicus on the issue is to be found in the statement of Bowen L.J. inCopper v. Smith (Supra) when he observed:-
‘Now, I think it is a well-established principle that the object of Courts is to decide the rights of the parties, and not to punish them for the mistakes which they make in the conduct of their case… I know of no kind of error or mistake which, if not fraudulent… 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 I do not regard such amendments as a matter of favour or grace… 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 of the real matter in controversy, it is as such a matter of right on his part to have it corrected, if it can be done without injustice…” Italics supplied – see (1884) 26 Q.B.D. at 710 and 711.).”
Very recently in Setraco (Nig.) Ltd v. Kpaji (2017) 5 NWLR (PT 1558) 280; (2017) ALL FWLR (PT 884) 1732, the Supreme Court again confirmed that a notice of appeal that is not fundamentally defective, as in the instant one, can be amended, even after preliminary objection has been raised to it.
Now, Section 16 of the Court of Appeal Act 1976 referenced in Migliore’s case above is now Section 15 of the extant Court of Appeal Act 2004 and reads thus:
15. The Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal and … shall generally have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a Court of first instance and may re-hear the case in whole or in part …” PER MOSES UGO, J.C.A.

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

GYANG BOTSHA APPELANT(S)

And

GYANG JANG RESPONDENT(S)

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): Mr. Gyang Botsha, the appellant in this appeal, by his application dated and filed in this Court on 24/10/2019 seeks:
1. Leave of this Court to amend his Four-Ground Notice of Appeal of 12/1/2017 against the Ruling of the Customary Court of Appeal Plateau State dismissing his application in CCA/30A/98 for that Court to set aside its decision of 16th April 2004.
2. An order deeming the said amended Notice and Grounds of appeal already separately filed by him on 24/10/2019 and marked Exhibit C as properly filed and served.
3. An order of Court granting him extension of time to file his brief of argument dated 2/10/2019 and filed on 4/10/2019.
4. An order of Court deeming the said brief of argument filed dated 2/10/2019 and filed on 4/10/2019 as properly filed and served on the respondent.

In his grounds for the application and affidavit in support of same deposed to by one Mr. Bankat, a Litigation Secretary of his counsel Mr. Gideon Ngwen, it is stated that the application for leave to amend the notice of appeal is necessitated by the fact that the original notice of appeal

filed by Mr. Ngwen himself for appellant/applicant is not properly couched, just as there is also need to add two additional grounds to it. It is also there stated that the delay in filing appellant’s brief of argument is caused by health challenge to Mr. Ngwen which unduly slowed him down and brought counsel under intense pressure of work. The brief of argument he says is now ready and even filed as a separate process and served on respondent.

His opponent and namesake Mr. Gyang Jang is opposed to the application and filed counter-affidavit and written address to it, the latter at the instance of this Court. Mr. Jang contends in his counter affidavit and written address that the title of appellant/applicant’s instant application for amendment which simply bears:
Mr. Gyang Botsha
v.
Mr. Gyang Jang
not only deviates from the title of his original notice of appeal filed on 12/01/2017 at the lower Court which bears:
Mr. Gyang Botsha – Appellant
v.
Mr. Gyang Jang – Respondent
In Re: Nyam Botsha – Deceased;
even that title on the original Notice of Appeal does not align with the one on the title of the

13/10/2016 Ruling of the Customary Court of Appeal bearing:
1. Gyang Botsha
2. Nyam Botsha
v.
Gyang Jang.

The cumulative effect of all this, especially the fact that appellant/applicant’s Notice of Appeal does not reflect the names of parties exactly the way they are in the Ruling of the lower Court appealed against, Mr. Jang argued in his four-paragraph Counter affidavit (even as Section 115 (2) of the Evidence Act 2011 forbids conclusions and legal arguments in affidavits) and Written address, is that appellant’s original notice of appeal is defective and incompetent and so no amendment can be made to it. In support of his contention that an incompetent notice of appeal and indeed any incompetent process cannot be added to or amended, a point which is rather trite, he referred us to the cases of S.P.D.C. (Nig.) Ltd v. Agbara (2019) 6 NWLR (PT 1668) 310 @ 326 (SC), Mobil Oil (Nig.) Plc v. Yusuf (2012) 9 NWLR (PT 1304) 47 @ 57, and S.P.D.C. (Nig.) Ltd v. Ekosi (2016) 2 NWLR (PT 1496) 274 @ 288-289 and Uwazurike v. A.G. Federation (2007) 8 NWLR (PT 1035) SC 1 @ 17, and to buttress his contention that the notice of appeal

from the lower Court to this Court must reflect the parties in the decision of the lower Court appealed against, counsel referred us to this Court’s decision in Prof. Anyanwu v. Oparaocha & Ors (2019) LPELR-47336 (CA).

Apparently jolted by this stance of respondent in his counter affidavit, appellant/applicant was compelled to file a further and better affidavit and there disclosed among others that: his erstwhile co-appellant in the lower Court, Mr. Nyam Bot Sha, died since the 8th of April 2011, long before the ruling of the lower Court of 13/10/2016 appealed against and that Court even struck out his name from the proceedings before its said ruling on it so he, late Nyam Bot Sha, was no longer a party to the application before that Court at the time the ruling he is appealing against was made by that Court; that somehow, there has been general inconsistency on the part of both the lower Court and both parties in this appeal in expressing the names of parties to the application (a fact he said he regrets) and that that fact is evident in an earlier ruling of the Court below and even some processes filed by the respondent.

He argues, too, that Mr. Nyam Bot Sha, being already dead before the ruling in issue, cannot appeal or be a party to an appeal against that ruling. He also says that there was no doubt that the Court below erroneously expressed the names of the parties the way they appeared on its ruling appealed against, and that this Court has the power to correct the said error in the names of parties and direct how they should be expressed henceforth; that this Court is more interested in substance rather than technicality, etc.

All these are contained in paragraphs 5 (iii), (iv), (v), (vi), (vii), (viii), (ix) (x), (xi), (xii), (xiii), (xiv), (xv) where the same Godfrey Bankat the law office of Mr. Gideon Ngwen on the instruction of and information supplied to him by appellant swore that:
5(iii) That after demise of Mr. Nyam Bot Sha, on the 8th of April 2011, his name was immediately struck out as a party upon his [appellant’s] application.
(iv) That thereafter, there has been general inconsistency by the Court below and the parties in the way the names of parties is being expressed.
(v) That the fact deposed to in the foregoing paragraph is evident in by

an earlier ruling delivered by the Court below and even processes filed by the respondent.
(vi) That applicant’s counsel has also been inconsistent in expressing the names of the parties in this appeal and regrets same.
(vii) That what is certain is that Mr Nyam Botsha was no longer a party as at the time the ruling being appealed against was delivered by the Court below.
(ix) That for the same reason, he cannot be a party in this appeal.
(x) That the Court below and all the parties in this appeal, including the respondent, are all guilty of muddling up the names of the parties.
(xi) That a death (sic) person cannot appeal against the decision of the Court below.
(xii) That is the unlawful scenario the depositions in the respondent’s affidavit is trying to create.
(xiii) That it is not in doubt the fact that the Court below erroneously expressed the names of the parties in the way it has done by including the name of a dead person as applicant.
(xiv) That this Court has the power to correct that error and to direct how the names of the parties should henceforth be expressed.
(xv) That this Court has

always preoccupied itself with looking at the substance of the appeal as against matters bothering (sic) on technicality.

To buttress his assertions, appellant/applicant annexed to the Further and better affidavit of Mr. Bankat the three processes referenced in the further affidavit. These are:
(1) A 21/4/2016 interlocutory Ruling of the Court below (exhibit GB) with its title reading:
(1) Gyang Botsha – Appellant
2. Nyam Botsha
v.
Gyang Jang – Respondent
In Re: Nyam Botsha – Deceased
(2) Exhibit GB 1 – a counter affidavit filed by the respondent in the Court below showing its title as:
1. Gyang Botsha – Appellant
2. Nyam Botsha
v.
Gyang Jang – Respondent
In Re: Nyam Botsha – Deceased.
(3) Exhibit GB 2 – Respondent’s own Written Address filed at the Court below on 9/5/2016, where Respondent adopted the exact position reflected by appellant/applicant in his application by also titling his said process thus:
Gyang Botsha – Appellant
v.
Gyang Jang – Respondent

Appellant/applicant relied on these depositions in the written address he adopted in this Court, and submitted, with the aid of passages from the decisions of this Court and the Supreme Court in Akinyede & Ors v. Opere & Ors (1967) LPELR-25318 (SC) p.3 para C-D; Metal Construction (W.A.) Ltd & 2 Ors. v. Migliore & Anor. (1979) LPELR-1867 (SC) 2-13, (1979) 6-7 S.C. 163; Mudiaga-Odje v. Younes Power System Nig. Ltd (2013) LPELR-20306 (CA) p. 36-37, that this Court possesses inherent powers to order the record of the lower Court to be amended to comply to with its judgment to prevent occurrence of substantial injustice so we should so direct amendment of the records in the interest of justice. Counsel further reminded us that respondent and his counsel also participated in the proceedings of this Court of 7th October 2019 where this Court directed appellant/applicant to withdraw his then pending application reflecting Mr. Nyam Bot Sha, Nyam Bot Sha having died cannot be a party to Court proceedings. Besides, he went on, the names of parties and their arrangement in Exhibit GB2 filed by Respondent at the lower Court after the death of Mr. Bot Sha is exactly the same with the one on the instant motion so Respondent cannot be heard to complain about the title of

this application as that will amount to Respondent approbating and reprobating. By the process filed by respondent, counsel further submitted, he has waived whatever irregularity is in the processes appellant/applicant filed here, in support of which Mr. Ngwen cited the very instructive decision of the Supreme Court in Agbule v. Warri Refining Co. Ltd (2012) LPELR-20625 (SC) 14-15, (2013) 6 NWLR (PT 1350) 315.

By way of reply on points of law filed on 03/11/2020, Mr. Ngwen also submitted that the decision of this Court in Prof. Prof. Anyanwu v. Oparaocha & Ors (2019) LPELR-47336 (CA) relied on by Respondent is distinguishable from this case because it was a living person, who was original 3rd defendant at the trial in that case who upon the demise of the original 1st defendant was supposed to be 2nd defendant but found his name wrongly omitted in the processes filed after the demise and striking out of dead 1st respondent’s name, that appealed to this Court against the omission of his name from the proceedings in Prof. Anyanwu v. Oparaocha & Ors.Learned counsel in the same reply address also referred us to the Supreme Court’s decision in

Vulcan Gases Ltd v. G.F. Industries Ltd (2001) 9 NWLR (PT 719) 610 @ 653, 661 where it was stated that the Court possesses a discretionary power to grant an amendment to correct the name of a party even if doing so will have the effect of substituting a new party, provided the Court is satisfied that the mistake sought to be corrected is a genuine one and not misleading. Such an amendment, learned counsel submitted and cited p. 652 of the same case of Vulcan Gases Ltd v. G.F. Industries Ltd, has a retrospective effect by dating back to the time the original process sought to be amended was filed.

Resolution of issues
Before resolving these arguments, I must not fail to point out that Mr. Eric Duniya for Respondent, at the concluding part of his written address for respondent in opposition to the application, also objected to the competence of the written address filed by appellant/applicant on 26/3/2020. Mr. Duniya on Respondent’s behalf and relying on the decision of this Court in Adhekegba v. Minister of Defence (2013) 17 NWLR (PT 1382) 126 @ 141, submitted that on 11/3/2020, when this Court ordered parties to file written address,

appellant was given 14 days, but he flouted that order by filing his address only on the 26th of March 2020 so it was filed out of time, meaning that it is deemed not to have been properly filed and every submission based on it should be discountenanced.

Mr. Ngwen in appellant/applicant’s Reply on points of law responded that, it is not correct that appellant/applicant’s written address was filed out of time. He said that in any case, even if it was actually filed out of time as respondent claims, by responding to that written address with his own address, respondent has waived the non-compliance so his complaint should be discountenanced. Mr. Ngwen at the hearing of the application and adoption of written addresses by counsel to parties on 4/11/2020 even went further to object to the respondent’s address filed on 7/4/2020 on the same grounds like Mr. Duniya of the said address of respondent being filed outside the seven days’ time set by this Court for respondent to file it. Mr. Ngwen said that is why appellant/applicant did not even file a reply to the said address, so as not to be seen as waived – even as in actual fact a reply

address on points of Law was filed by Mr. Ngwen for appellant/applicant on 03/11/2020 as earlier shown.

Mr. Duniya in response submitted that respondent’s written address filed on 7/4/2020 was filed within the seven days this Court gave respondent to file it, given that appellant/applicant only served respondent his address on 1st April 2020. Counsel finally urged us to discountenance Mr. Ngwen’s objection to that address and dismiss this application.

Let me first make the point that these objections by both counsel on the regularity of the addresses exchanged by them is hardly of any moment given that both counsel separately filed responses to the said addresses they claim were filed out of time. They are by that fact deemed to have waived any irregularity in the purported late service of the said addresses on them, for the law is now fairly well settled that the rules the Court (and I want to think that includes orders of Court too) fixing time for exchange of processes between parties is for the convenience of parties so they can waive such late filing and service, such service being only irregular and not invalid: see Atanda v. Ajani

(1989) 3 NWLR (PT 111) 511 @ 545 (S.C.); Dike Nwora v. U.B.A Plc (1978) 2 L.R.N. 149; S.P.D.C.N. Ltd v. Egweaja (2016) 10 NWLR (PT 1519) 1 @ 10-11; Ndika v. Chiejina (2012) FWLR (PT 117) 1178 @1164, 1198. In the result, both objections are hereby overruled.
At any rate, the said complaints/objections of parties, in as much as they do not touch the validity of the application and affidavits filed by parties, is hardly of any effect on the application, for while the importance of receiving addresses from counsel cannot be emphasized in some cases, there are also cases which are so straightforward and the law so commonplace that even the failure of counsel to address the Court may cause no miscarriage of justice: seeNdu v. The State (1990) 11-12 S.C. 122 @ 135 – 135 (SC); Niger Construction Co. Ltd v. Okugbeni (1987) 4 NWLR (PT 67) 787 @ 792 (SC).

Coming now to the application itself and the arguments for and against it, it has to be noted that respondent did not file any further counter affidavit to controvert the depositions of appellant/applicant in his further affidavit earlier reproduced as to what happened in the lower Court. Those

depositions are particularly that late Nyam Bot Sha whose absence in the title of this application is the grouse of respondent is not only long dead but that he died even before the decision of the lower Court appealed from and so his name ought not to be even reflected on the title of the said decision of the lower Court that is the subject of this appeal.

Also not challenged is that respondent, following late Nyam Bot Sha’s death, also titled his own Brief of argument at the Court below exactly the same way (without Mr. Nyam Bot Sha) as appellant/applicant did in this application.

Also not in dispute is that the lower Court also indicated in the processes filed before it that Mr. Nyam Bot Sha passed away long before its final ruling appealed against.
Also not disputed is that that Court itself, following the death of late Nyam Bot Sha, had been inconsistent with the title of the appeal and who are the proper parties before it.

Perhaps even most important is the equally unchallenged deposition in the further and better affidavit of appellant/applicant deposed by Mr. Bankat on behalf of appellant/applicant to the effect that the

Court below even struck out Late Nyam Bot Sha’s name from its proceedings before its ruling but erroneously muddled up things by including his name in its final ruling now on appeal and also that both appellant and respondent have been muddling the title of the suit/appeal by including late Late Bot Sha’s name in it, for which this Court advised appellant/applicant to withdraw his previous application bearing Late Bot Sha’s name and come properly.

In the absence of any further affidavit by respondent challenging these depositions, it simply means that he admitted all of them (see Section 21(1) of the Evidence Act 2011). And if that be the position, as it must be especially as the processes before the Court also attest to them, it can hardly be argued with any seriousness that appellant/applicant Mr. Gyang Bot Sha was bound to include in his appeal before this Court the name of his erstwhile co-defendant/appellant, late Nyam Bot Sha, who had long died and even had his name struck out from the proceedings by the Court below before its ruling now on appeal. It is only the living, and not the dead that can be parties to Court proceedings.

The dead are normally allowed, and in fact implored by those of us on this side of the divide, to Rest in Peace. Even the decision of this Court in Prof. Anyanwu v. Oparaocha & Ors (2019) LPELR-47336 (CA) cited by Respondent does not change that position or support the argument of respondent that dead persons like Late Mr. Nyam Bot Sha must continue to be parties in Court proceedings even after their demise and failure to reflect their names renders a notice of appeal and indeed any process filed without their name incompetent.
On the unchallenged facts of this case, I am in no doubt that there was clearly an error by the lower Court in reflecting in its ruling of 13/10/2016 now on appeal the name of late Nyam Bot Sha whom it had long struck out on account of his death. There was also an error, albeit in a lesser form, on the part of appellant/applicant’s in perpetuating the error of the Court below by reflecting the same long-struck-out name of late Nyam Bot Sha in his notice of appeal to this Court. That is even as his error is less grave, since he indicated clearly in his notice of appeal that late Nyam Bot Sha was already

‘deceased.’ I think he should have just ignored the error of the lower Court and simply filed his notice of appeal without the name of late Nyam Bot Sha. It is possible, though, that he anticipated this objection of his opponent and decided to play safe by still tagging along his erstwhile partner in the case even when he had left for the world beyond.
Whichever way, an error, which did not by any means affect the competence of the Notice of Appeal competently filed by appellant/applicant, a living person, has been made. That is an error which this Court possesses sufficient powers, both inherent, under its enabling Law and the rules of this Court, to correct. It is of no moment how that blunder came about, when it was made and how late the application to correct is made. Courts do not exist to punish blunders of parties; they rather exist to settle their disputes accordance to substantial justice. In Akinyede & Ors v. Opere & Ors (1967) 1 ALL NLR 302 @ 305 (SC) it was said that:
“It is not in doubt that the Court has an inherent power to order the record of appeal of the trial Court to be amended so as to comply with the

facts proved and the decision given.”
In Metal Construction (W.A.) Ltd & 2 Ors. v. Migliore & Anor. (1979) LPELR-1867 (SC) 2-13 the Supreme Court again said that:
“A Court of Appeal has an inherent power to order the record of appeal of the trial Court to be amended so as to comply with the facts proved before the Court and the decision given by it. This is very necessary power which the Court has always exercised if and when necessary to prevent the occurrence of substantial injustice; whether the amendment be formal (as in Gbogbolulu of Vakpo v. Head Chief Hodo (1941) 7 WACA 164) or quasi substantial (as in Clark v. Wood (1881-2) 9 QBD 276.).”
In Okeowo & Ors v. Migliore & Ors. (1979) N.S.C.C. 210 the apex Court (Idigbe J.S.C.) was even more effusive, with Idigbe, J.S.C., saying @ p. 238-239 that:
“It only remains for me to consider the submissions of Chief Williams on behalf of the appellants that there being no amendment of the prayer in the summons the learned Judge in the Court below erred in ordering the calling of a meeting of the company when the prayer was for the calling of a meeting of

the Board. The Court of Appeal, he contended, was accordingly wrong in upholding an order which granted a relief that had not been sought. As is well known, the common rule of pleadings is that a party is bound by his own pleading. The strict application of this rule is capable sometimes of leading to miscarriage of justice hence the Courts have been invested with wide powers of amendment of pleadings. And so under general powers of amendment vested in them, the Courts, for the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in proceedings before them can, at any stage of the said proceedings either of their own motion or on the application of any of the parties thereto, order any document in the proceedings to be amended on such terms as to costs as may appear to them to be just. The Court below did not order any amendment of the originating summons to be carried out nor was any application therefore made to it. It does seem however that having analyzed the evidence before it, that Court decided, in the interest of justice, to determine the real question in controversy as, pursuant to the

provisions of Section 11 of the Federal Revenue Court Decree No. 13 of 1973, it was within its competence to do. I agree with Chief Williams that not having first carried out an amendment of the prayer in the originating summons it erred in law in proceeding to order as it did. There was therefore, a manifest defect in the record of the proceedings on appeal before the Federal Court of Appeal. That Court however, in exercise of its powers under Section 16 of the Federal Court of Appeal Decree No. 43 of 1976 can amend such manifest defect and did amend the same. The provisions of Section 22 of the Supreme Court Act are to the same effect:
“The rule of conduct of the Courts in matters relating to amendment of pleadings is that however careless or negligent the first omission to ask for amendment may have been and however late the application therefore, the amendment should be allowed by the Court either on its own motion or on the application of a party to the proceedings, if such amendment can be made without injustice to the opposite party (i.e the other side); and there can be no injustice if the opposite party can be compensated by the award in

his favour of the costs occasioned by the amendment. Learned counsel for the appellant contends, and I agree with him that the failure of learned counsel for the respondents to apply in the Court below and even in the Court of Appeal for leave to amend the prayer in the summons is in bad taste. As however has been said, Courts “do not exist for the purpose of punishing bad taste” (Per Bowen L.J. in Cropper v. Smith (1884) 26 Q.B.D. 700 at 712). The duty of the Courts is to determine the real issues in controversy as they appear on the evidence, although the conduct of the case on behalf of the litigant may have been slipshod or even cavalier. The locus classicus on the issue is to be found in the statement of Bowen L.J. inCopper v. Smith (Supra) when he observed:-
‘Now, I think it is a well-established principle that the object of Courts is to decide the rights of the parties, and not to punish them for the mistakes which they make in the conduct of their case… I know of no kind of error or mistake which, if not fraudulent… 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 I do not regard such amendments as a matter of favour or grace… 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 of the real matter in controversy, it is as such a matter of right on his part to have it corrected, if it can be done without injustice…” Italics supplied – see (1884) 26 Q.B.D. at 710 and 711.).”
Very recently in Setraco (Nig.) Ltd v. Kpaji (2017) 5 NWLR (PT 1558) 280; (2017) ALL FWLR (PT 884) 1732, the Supreme Court again confirmed that a notice of appeal that is not fundamentally defective, as in the instant one, can be amended, even after preliminary objection has been raised to it.
Now, Section 16 of the Court of Appeal Act 1976 referenced in Migliore’s case above is now Section 15 of the extant Court of Appeal Act 2004 and reads thus:
15. The Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of

appeal and … shall generally have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a Court of first instance and may re-hear the case in whole or in part …”

In the light of all the foregoing, this Court hereby ORDERS that THE TITLE and NAMES OF PARTIES in:
1. The 13/10/2016 Ruling of the Plateau State Customary Court of Appeal in Appeal No. CCA/30A/98 which is the subject of this appeal and spans pages 128 – 135 of the records of the lower Court as transmitted to this Court;
2. Appellant/Applicant’s Four-Ground Notice of Appeal filed on 12/01/2017 by him against the said Ruling which spans pages 136-140 of the same records;
3. Any every other process so far filed by parties in this appeal,
BE AND IS HEREBY AMENDED to simply read Mr. GYANG BOT SHA vs. Mr. GYANG JANG, as it appears in appellant/applicant’s instant application for amendment of his notice of appeal and that every subsequent process shall bear only that title.

With that order, and in the absence of any opposition by respondent to the merits of

appellant/applicant’s instant application filed on 24/10/2019, the said application of appellant is also hereby granted as prayed and it is specifically further ordered that:
1. Leave be and is hereby granted to appellant/applicant to amend his original notice of appeal as set out in the Schedule of Amendment annexed to his application as exhibit B.
2. Appellant/applicant’s said amended notice and grounds of Appeal already filed on 04/10/2019 is hereby deemed properly filed and served.
3. Time is also extended up to today for appellant to file and serve his brief of argument in this appeal.
4. Appellant’s brief of argument in this appeal already filed on the 3rd day of October as a separate process and served on the respondent is deemed and filed and served today, the 26th day of November 2020.

TANI YUSUF HASSAN, J.C.A.: I had the opportunity of reading before now, the Ruling just delivered by my learned brother, BOLOUKUROMO MOSES UGO, JCA. I adopt the Ruling as mine and grant the application as prayed. I abide by the order made therein.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I have had the opportunity of reading

before now the Ruling just delivered by my learned brother, BOLOUKUROMO MOSES UGO, JCA. I agree with the reasoning and conclusion that the application is meritorious and should be granted.

I also grant the application and abide by all the consequential orders made therein.
Therefore the objection thereto is dismissed by me in its entirety.

Appearances:

Gideon Ngwen, Esq., with him, D. D. Dakur, Esq. and J. A. Lakai, Esq. For Appellant(s)

Eric E. Duniya, Esq., with him, S. N. Bwede, Esq. For Respondent(s