CENTRAL BANK OF NIGERIA V. IFEANYICHUKWU OKONKWO
(2013)LCN/6349(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 26th day of June, 2013
CA/E/161/2008
JUSTICES:
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
CENTRAL BANK OF NIGERIA – Appellant(s)
AND
IFEANYICHUKWU OKONKWO – Respondent(s)
RATIO
PRINCIPLES THAT GUIDE THE COURT IN THE CONSIDERATION OF AN APPLICATION FOR AMENDMENT
According to Black’s Law Dictionary 9th Edition, an amendment is a formal revision of or addition proposed or made to a statute, Constitution, pleadings, order or other instrument. It is a change made by addition, deletion or correction. Thus an amendment may be effected by addition or insertion, or by substitution. From the relevant judicial decisions, the courts have laid down the following as some of the principles that guide the consideration of an application for amendment; (1) An amendment should be allowed unless it will entail injustice to the respondent or the applicant is acting malafide, or some injury will be occasioned to the respondents that cannot be compensated by way of costs; EHIDIMHEN V. MUSA (2000) 8 NWLR (PT. 689) 640, (2) An amendment can be granted at any stage if it is in the interest of justice to do so; OKAFOR V. IKEANYI (1979) 3-4 SC 99: AISTHOM V. SARAKI (2000) 14 NWLR (PT. 687) 415: (3) Where an amendment relates to a mere misnomer it should be granted as a matter of course; COMMERCE ASSURANCE LTD V. ALLI (1992) 4 SCNJ 145: (4) Application for amendment is generally refused where to grant it will result in injustice to the other side; ADETUTU V. ADEROUNMU (1984) 6 SC. 92. PER AKEJU, J.C.A.
THE STANDARD OF EXERCISE OF THE COURTS JURISIDICTION
It is important that in matters of discretion, the court can only be judicial and judicious when it aims at doing justice based on only the materials placed before the court without undue reliance on or consideration of extraneous materials not before the court, and without ignoring the relevant materials placed before the court. See CENTRAL BANK OF NIGERIA V. OKOJIE (2002) FWLR (PT. 103) 349: OYEKANMI V. NEPA (2000) 15 NWLR (PT. 690) 414.The Brief of Argument allegedly filed on 22/8/2008 by the Appellant and which the respondent has contended that was filed out of time and therefore invalid has not been placed before this court for the purpose of this application either by the applicant who seeks its amendment or by the respondent who challenges this application. It is not the business of this court to speculate on any matter whether of fact or law nor placed before it ODIBA v. AZEGE (1998) 61 LRCN 4605. PER AKEJU, J.C.A.
WHETHER OR NOT AN AMENDMENT WILL BE ALLOWED TO SETTLE THE REAL ISSUES IN CONTROVERSY
It is therefore also recognised that an amendment will be allowed so as to settle the real issues in controversy. I do not doubt the assertion of the applicant that the error now sought to be corrected was legitimately made by Counsel who is the custodian of the legal principles applicable to the case after the client might have played his own role of supplying the facts and properly briefing the Counsel. Such a litigant ought not to be penalised for any omission, mistake, error or even blunder in law committed by his Counsel. The courts do not make it a practice to visit the sin of a Counsel on the litigant. See AKINPELU V: ADEGBORE (2008) ALL FWLR (PT. 429) 413: ENYIBROS FOODS PROCESSING COMPANY LTD. V. N.D.I.C. (2007) ALL FWLR (PT. 367) 793.
It is true as argued by the respondent that the applicant has not filed further affidavit in response to the paragraphs of the Counter Affidavit specifically mentioned by him. The failure to file such further affidavit does not confer such Counter Affidavit with materiality or substantiality. Where the evidence of a party is hollow or does not establish the assertions of the party the adverse party may ignore such evidence. See NEKA B.B.B. MANUFACTURING CO. LTD. V. AFRICAN CONTINENTAL BANK LTD. (2004) ALL FWLR (PT. 198) 1175. PER AKEJU, J.C.A.
ISAIAH OLUFEMI AKEJU, J.C.A.: (Delivering the Leading Ruling): By the Motion on Notice dated 21st March, 2011 but filed on 11/4/2011, the appellant had prayed this court for:
“An order granting leave to the Appellant/Applicant to amend the Notice and Grounds of Appeal dated 3rd day of August, 2006 and filed on the same date; and the Appellant’s Brief of Argument dated the 21st day of August, and filed on 22nd day of August 2008 in terms of the Schedule of Amendment attached to the supporting Affidavit as Exhibit B.”
The grounds upon which the prayer was sought are stated as follows:-
i. Upon the instruction of the Appellant/Applicant, the Appellant/Applicant’s Solicitors on 3rd day of August 2006 filed Notice and Grounds of Appeal dated 3rd August 2006, which originated this Appeal.
ii. While preparing the Notice and Grounds of appeal the Appellant/Applicant’s Counsel mistakenly included as a relief sought from this court to “set aside the garnishee order absolute made on the 19th day of July 2006” instead of “to set aside the decision of the court below dated the 2nd day of August 2006.”
iii. The same mistake made in the Notice and Grounds of Appeal reflected in the Appellant’s Brief of Argument dated 21st day of August 2008 and filed on the 22nd day of August, 2008.
iv. There is need to amend the Notice And Grounds of Appeal and the appellant’s Brief of Argument to properly placed (sic) before the court the issues in controversy between the parties in this appeal.”
The facts on which the application has been premised are contained in the affidavit of 9 paragraphs filed in support thereof and to which exhibits A, B, C and D were attached which are the Notice of Appeal dated 3rd August 2006; Schedule of Amendments; Proposed Amended Notice of Appeal; and Proposed Appellant’s Amended Brief of Argument respectively. In his opposition to the application, the Respondent filed a Counter Affidavit of 25 paragraphs on 10/8/12, and on the order of this court, the parties filed their respective Written Addresses which they adopted and relied upon as their arguments in respect of the motion.
The sole issue formulated by the appellant/applicant in the Written Address prepared by Tochukwu Maduka Esq. of Counsel is whether in the circumstances of the court should not grant the Appellant/Applicant’s motion for amendment.
As argued by the learned Counsel, this court is conferred with jurisdiction by the provisions of Order 6 Rule 15 of the Court of Appeal Rules, 2011 and Section 15 of the Court of Appeal Act 2004 to permit the amendment of a Notice of Appeal at any time. The learned Counsel submitted that this court will allow an amendment to be made to a process except where such an amendment will result in injustice, surprise or embarrassment to the other party, citing GOWON V. IKENGWU (2003) 6 NWLR 815 (PT. 815) 38.
It was contended that the appellant had appealed against the decision of the Federal High Court, Enugu delivered on 2nd day of August, 2006 but due to the error or mistake of Counsel, the relief sought in the Notice of Appeal was stated as “to set aside the garnishee order absolute made on the 19th day of July, 2006” instead of “to set aside the decision of the court below dated 2nd day of August 2006” which is the decision actually appealed against; and which is well know to the respondent. It further contended that the error sought to be corrected is that of Counsel and not that of the appellant, and the respondent who has not filed a brief of argument will suffer no prejudice by the court granting the prayer.
Mr. Ifeanyichukwu Okonkwo who has personally handled this matter as the Respondent filed a Respondent’s Written Address on 4/3/2013 where he relied on issues of both law and fact to oppose the motion. He is hereinafter simply called the respondent.
According to the respondent, the judgment of the Federal High Court, Enugu delivered on 2/8/2006 in suit No. FHC/EN/CS/129/2006 had Ifeanyichukwu Okonkwo as the judgment creditor and the Central Bank of Nigeria as the garnishee, and so this court does not possess the power under Section 15 of the Court of Appeal Act, 2004 to change the parties, moreso that there had not been any application for that purpose.
The respondent formulated one issue for determination in this application as follows:
In view of mandatory provision in Order 6 Rule 2 (1) of the Court of Appeal rules, 2011, whether the Appellant/Applicant’s motion for amendment ought not be refused, notwithstanding the proceeding conducted on 27/9/2010 by this court striking out the names of purported 2nd and 3rd Respondents who were never parties in this case either at the court below or in the Court of Appeal, a null and void order which cannot confer jurisdiction.
The respondent had argued that the applicant did not file any further affidavit in reaction to his own Counter affidavit, and the effect of this failure is that the facts in the Counter Affidavit are not contradicted and they are to be relied upon by the court, citing IKPANA V. R.T.P.C.N. (2006) 3 NWLR (PT. 966) 106. The respondent specifically referred to paragraphs 14, 15, 16, 17, 18, 19, 20, 22, 23 and 24 of the Counter Affidavit.
In the resolution of the above issue, the respondent contended further, this court will have to resolve the issue whether the order of this court dated 27/9/2010 granting leave to the appellant to withdraw against the 2nd and 3rd respondents who were never parties on record either at the trial court or in the Court of Appeal in violation of Order 6 Rule 2 (1) of the Court of Appeal rules, 2011 can confer jurisdiction to validate such proceedings conducted without jurisdiction. The respondent had argued that on 27/9/10 this court struck out the names of parties joined as 2nd and 3rd respondents in this appeal, but who were never parties to the action but that order is void and a nullity as it was made without jurisdiction and cannot validate the proceedings, citing BENSON AGBULE V. WARRI REFINERY & PETROCHEMICAL CO. LTD (2013) 6 NWLR (PT. 1350) 318: THE MILITARY ADMINISTRATOR OF BENUE STATE V. ULEGEDE ESQ. (2001) 17 NWLR (PT. 741) 194: LAKANMI V. ADENE (2003) 10 NWLR (PT. 828) 353.
As further argued by the respondent, the order of this court on 27/9/10 granting the withdrawal against the 2nd and 3rd respondent from this appeal presupposed that those parties were in existence and the order was thereby made without jurisdiction, citing FADIORA V. GBADEBO (1978) 3 SC 219: FEDERAL REPUBLIC OF NIGERIA V. IFEGWU (2003) 13 NWLR (PT. 167) 703: P.P.A. V. INEC (2012) 13 NWLR (PT. 1317) 215: KERE V. KALBA (2004) ALL FWLR (PT. 221) 1477. The illegality of that order of 27/9/10 overrides all other questions and this court will not continue therewith; AGIP (NIG) LTD V. AGIP PETROL INT’L (2010) ALL FWLR (PT. 520) 1198.
According to the respondent, the Notice of Appeal filed on 3/8/2006 is vitiated and defective as it does not contain the relief sought, and as such, it cannot be amended or regularised, citing NSIRIM V. NSIRIM (1990) 3 NWLR (PT. 139) 285: N.N.B. OLC V. DENLAG LTD. (2004) ALL FWLR (PT. 228) 606: AMABRA V. OPOBO (2010) ALL FWLR (PT. 520) 1313. The leave of this court cannot be granted to change the relief sought in the Notice of Appeal filed on 3/8/2006 the same being incompetent and there is no provision for substitution of relief sought in a Notice of Appeal under the Court of Appeal Rules, 2011; FAYEMI V. ONI (2010) 17 NWLR (PT. 1222) 336: ALAMIEYESEIGHA V. IGONIWARI (NO. 2) 2007) 7 NWLR (PT. 1034) 254. On the effect of proceedings based on an incompetent Notice of Appeal, the cases of NATIONAL INLAND WATERWAYS AUTHORITY V. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD. (2007) ALL FWLR (PT. 361) 1727 and ASHCO NIG LTD. V. WARD & GREEN (2010) 3 NWLR (PT. 1181) 302 were cited.
On the amendment of the appellant’s Brief, the respondent contended that the Brief was filed outside the statutory period without the leave of court thereby being a nullity; BURAIMOH V. BAMIGBOSE (1989) 3 NWLR (PT. 109) 352. The record of Appeal contains names of non-parties and it is defective, while a motion has been filed for the dismissal of the appeal. On the whole the respondent urged us to refuse this application as there is no competent appeal not withstanding that a brief of argument had been purportedly filed. This court has the power to strike out the invalid Notice of Appeal; KHALIE V. YAR’ADUA (2003) 16 NWLR (PT. 847) 446.
The Appellant/Applicant has by this application sought the leave of this court to amend the following processes;
(1) The Notice and Grounds of Appeal dated the 3rd day of August, 2006 and filed on the same date; and
(2) The Appellant’s Brief of Argument dated the 21st day of August, and filed on 22nd day of August, 2006.
The power of this court to grant an amendment of a Notice of Appeal is in Order 6 Rule 15 of the Court of Appeal Rules 2011 which provides that;
“15. A notice of appeal may be amended by or with the leave of the court at any time.”
From the tenor of the above Rule of court, the consideration of an application for leave to amend a Notice of Appeal calls for exercise of discretion by this court, and the law is trite that discretion must be exercised both judicially and judiciously upon the facts of the case as presented by the parties themselves, the circumstances of the case, and the applicable rules and law. In the OWNERS OF THE M.V. LUPEX V. NIGERIAN OVERSEAS CHARTERING AND SHIPPING LTD. (2003) LPELR-SC 21/2000. Mohammed JSC stated what the exercise of discretion entails at page 18 thus;
“An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case guided by the spirit and principles of law.”
A motion for the exercise of court’s discretion therefore is expected to be filed with a supporting affidavit showing the facts the applicant relies upon for the grant thereof and where the respondent opposes the motion, the facts for such opposition are to be shown by way of a Counter Affidavit. See U.B.A. V. G.M.B.H. (1989) LPELR-3400 SC. It needs to be stated here also that the law is trite that when it comes to matters of exercise of judicial discretion, previous decisions are not of much value as they do not constitute binding precedent. See DOKUBO-ASARI V. F.R.N. (2007) 5-6 SC 150. (2007) 9 MJSC 160.The applicant in the instant case has relied on the affidavit of 9 paragraphs filed in support of the motion and deposed to by one Ukamaka Ibeh, the Chief Litigation Secretary in the Law firm of Appellant’s Counsel, the material paragraphs of which are paragraphs 4, 5, 6, 7 and 8 as follows:-
“4. That upon the instruction of the Appellant/Applicant, this Law Firm on 3rd day of August 2006 filed Notice and Grounds of Appeal dated 3rd August 2006, which originated this Appeal. Copy of the Notice and Grounds of Appeal is shown to me and annexed hereto as Exhibit “A.”
5. That the Principal Counsel in the Law Firm …inform me and I verily believe him as follows:-
(a) That while preparing the Notice and Grounds of Appeal he mistakenly included as a relief sought from this court to “set aside the garnishee order absolute made on the 19th day of July 2006” instead of to “set aside the decision of the court below dated the 2nd day of August, 2006.”
(b) That the same mistake he made in the Notice and Grounds of Appeal reflected in the Appellant’s Brief of Argument dated 21st day of August 2008 and filed on the 22nd day of August 2008.”
6. That these mistakes have been corrected and the intended amendments are as contained in the Schedule of Amendments shown to me and attached hereto as Exhibit “B”.
7. That the Proposed Amended Notice of Appeal is shown to me and annexed hereto as Exhibit “C.”
8. That the Proposed Amended Appellant’s Brief is shown to me and annexed hereto as Exhibit “D.”
It thus becomes clear both from the grounds for the application which I had earlier on set out and the affidavit evidence, that the application has been necessitated by the need to correct the error of thee appellant’s Counsel in correctly stating in the Notice and Grounds of Appeal filed in commencement of this appeal, the relief the appellant is seeking in the appeal which error is stated to have also been reflected in the Appellant’s Brief filed subsequently.
The Respondent who filed a Counter Affidavit of 25 paragraphs denied the depositions in the applicant’s affidavit and stated the following inter alia;
“4. It is a fact well known to me that the Appellant/Applicant by the motion now before the court sought to amend the notice of appeal filed on 3/8/2006 to wit:
“set aside the garnishee Order absolute made on the 19th day of July 2006” instead, “set aside the decision of the court below dated the 2nd day of August 2006”, the amendment sought is of no moment as it is one and the same thing.
6. That I know as a fact that in the ruling of the learned trial court below dated 2/8/2006 which the APPELLANT/APPLICANT appealed against by Notice of Appeal filed on 3/8/2006. The court below in the said ruling of 2/8/2006 at page 219 of the Record of Appeal concluded thus:
“In the circumstances the motion filed by the Garnishee on the 28/7/2006 asking the court to set aside its order Nisi fails and is hereby dismissed.”
Therefore the substitution of the relief sought will not change anything.
7. It is a fact well known to me that there is no difference between the reliefs sought in the notice of appeal filed on 3/8/2006 and the purported Schedule of amendment in the motion filed on 11/4/2011 to wit:
“Set aside the decision of the Court below dated the 2nd day of August, 2006.”
The matter in issue being that the decision of the learned trial court below is a refusal of the prayer in the motion filed on 28/7/2006 and argued praying the court for: an order setting aside the order absolute made in this case on the 19/7/2006. Which was refused in the ruling of 2/8/2006 that gave rise to this appeal filed on 3/8/2006.”
According to Black’s Law Dictionary 9th Edition, an amendment is a formal revision of or addition proposed or made to a statute, Constitution, pleadings, order or other instrument. It is a change made by addition, deletion or correction. Thus an amendment may be effected by addition or insertion, or by substitution.
From the relevant judicial decisions, the courts have laid down the following as some of the principles that guide the consideration of an application for amendment; (1) An amendment should be allowed unless it will entail injustice to the respondent or the applicant is acting malafide, or some injury will be occasioned to the respondents that cannot be compensated by way of costs; EHIDIMHEN V. MUSA (2000) 8 NWLR (PT. 689) 640, (2) An amendment can be granted at any stage if it is in the interest of justice to do so; OKAFOR V. IKEANYI (1979) 3-4 SC 99: AISTHOM V. SARAKI (2000) 14 NWLR (PT. 687) 415: (3) Where an amendment relates to a mere misnomer it should be granted as a matter of course; COMMERCE ASSURANCE LTD V. ALLI (1992) 4 SCNJ 145: (4) Application for amendment is generally refused where to grant it will result in injustice to the other side; ADETUTU V. ADEROUNMU (1984) 6 SC. 92.The respondent has strenuously argued that the present appeal is vitiated by the appellant adding two parties to the processes before this court as 2nd and 3rd respondents who were non – parties at the trial court. However, this argument has clearly been defeated by the respondent himself who stated in paragraph 11 of his Counter Affidavit that:
“11. I know as a fact that during the proceeding in this Court of Appeal, dated 27/8/2010 upon the Motion on Notice by the Appellant/Applicant the Honourable Court struck out the names of the 2nd and 3rd respondents i.e. I.N.E.C. and R.E.C. Anambra State.”
The respondent’s contention that this court had no vires to make that order cannot be a matter to be decided by this court which, as far as that issue is concerned, has become functus officio leaving the rest for an appeal to the Superior Court. It cannot be correct as contended by the respondent that the processes that have been regularised by the order of this court still remain vitiated or invalid by reason of the same error that has been corrected.
On the matter of the Appellant’s Brief, the respondent deposed in paragraph 20 of his Counter Affidavit as follows:-
’20. That I know as a fact that the purported Appellant’s Brief of Argument filed on 22/8/2008 was filed without the mandatory permission of this Honourable Court and the present Motion on Notice filed on I 11/4/2011 touches on the said incompetent Brief of Argument.”
The respondent has also argued in this line in his Written Address. Let me state here again that the instant application calls for exercise of discretion. It is important that in matters of discretion, the court can only be judicial and judicious when it aims at doing justice based on only the materials placed before the court without undue reliance on or consideration of extraneous materials not before the court, and without ignoring the relevant materials placed before the court. See CENTRAL BANK OF NIGERIA V. OKOJIE (2002) FWLR (PT. 103) 349: OYEKANMI V. NEPA (2000) 15 NWLR (PT. 690) 414.The Brief of Argument allegedly filed on 22/8/2008 by the Appellant and which the respondent has contended that was filed out of time and therefore invalid has not been placed before this court for the purpose of this application either by the applicant who seeks its amendment or by the respondent who challenges this application. It is not the business of this court to speculate on any matter whether of fact or law nor placed before it ODIBA v. AZEGE (1998) 61 LRCN 4605.
The Notice of Appeal attached to this motion and marked exhibit A shows that it contains “Relief sought” which is “To allow the appeal and set aside the garnishee order absolute made on the 19th day of July 2008” which is what the applicant now says was inserted by error of Counsel and now applies to amend in the manner shown in the Schedule of Amendment which is exhibit “B.”
The respondent has not shown that the error was not that of the Counsel nor has he shown any malafide in bringing this application and has not shown any prejudice he will suffer if this application is granted. The closest the respondent has got is in paragraph 21 of his Counter Affidavit:
“21. That I know that the reliefs sought by the APPLICANT in its motion of 11/4/2011 are without merit.”
In my candid view, the famous dictum of Bowen LJ in CROPPER V. SMITH (1884) 26 CH. D. 700 at pages 710 and 711 adopted by Madarikan JSC in CHIEF OJAH OJAH & ORS V. CHIEF EYO OGBOUIN & ORS (1976) LPELR – 2366 (SC) at pages 10-11 is also applicable here that “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 mistakes which they make in the conduct of their cases by deciding otherwise than in accordance with their rights …. I know of no kind of error or mistake which, if not fraudulent or intended to over reach, 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 amendment as a matter of favour or of grace …”
It is therefore also recognised that an amendment will be allowed so as to settle the real issues in controversy. I do not doubt the assertion of the applicant that the error now sought to be corrected was legitimately made by Counsel who is the custodian of the legal principles applicable to the case after the client might have played his own role of supplying the facts and properly briefing the Counsel. Such a litigant ought not to be penalised for any omission, mistake, error or even blunder in law committed by his Counsel. The courts do not make it a practice to visit the sin of a Counsel on the litigant. See AKINPELU V: ADEGBORE (2008) ALL FWLR (PT. 429) 413: ENYIBROS FOODS PROCESSING COMPANY LTD. V. N.D.I.C. (2007) ALL FWLR (PT. 367) 793.
It is true as argued by the respondent that the applicant has not filed further affidavit in response to the paragraphs of the Counter Affidavit specifically mentioned by him. The failure to file such further affidavit does not confer such Counter Affidavit with materiality or substantiality. Where the evidence of a party is hollow or does not establish the assertions of the party the adverse party may ignore such evidence. See NEKA B.B.B. MANUFACTURING CO. LTD. V. AFRICAN CONTINENTAL BANK LTD. (2004) ALL FWLR (PT. 198) 1175.
From the foregoing and in the circumstances of this application I find it just and expedient to grant this application in the following terms:-
Leave is granted to the appellant/applicant to amend the Notice and Grounds of Appeal dated the 3rd day of August 2006 and filed same date as stated in the Schedule of Amendments which is exhibit B to this application by deleting the phrase “set aside the garnishee order absolute made on the 19th day of July 2006” and replace same with “set aside the decision of the court below dated the 2nd day of august 2006.”
The appellant shall file the Appellant’s Brief of Argument, to reflect this amendment and in due compliance with all the relevant rules of this court.
I do not make any order as to costs.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I agree.
EMMANUEL AKOMAYE ASIM, J.C.A.: I had read a copy of the ruling just delivered by my learned brother, ISAIAH OLUFEMI AKEJU. I agree with the reasoning and conclusions. I also grant the application in the same terms as stated therein.
Appearances
T. Maduka with C.J. Chime For Appellant
AND For Respondent