CENTRAL BANK OF NIGERIA V. UCHENNA GODSWILL DINNEH(2005)

CENTRAL BANK OF NIGERIA V. UCHENNA GODSWILL DINNEH

(2005)LCN/1850(CA)

In The Court of Appeal of Nigeria

On Thursday, the 8th day of December, 2005

CA/A/184/M/2004

 

JUSTICES:

IBRAHIM TANKO MUHAMMAD                        Justice of The Court of Appeal of Nigeria

MARY U. PETER ODILI                                         Justice of The Court of Appeal of Nigeria

OLABODE RHODES-VIVOUR                               Justice of The Court of Appeal of Nigeria

 

Between

CENTRAL BANK OF NIGERIA – Appellant(s)

AND

UCHENNA GODSWILL DINNEH – Respondent(s)

 

MARY U. PETER ODILI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Honorable Justice A.I. Chikere of the High Court of the Federal Capital Territory, Abuja, whereby the learned Judge granted the application of the Plaintiff/Respondent in allowing the amendment sought of the Statement of Claim by a motion of 18/10/2004, which read inter alia:-
(1) An order granting leave to the Plaintiff/Applicant to further amend his statement of claim in term of the schedule attached hereto as Exhibit A”.
The Schedule of Amendment stated as follows:-
”SCHEDULE OF AMENDMENT”
AMENDED STATEMENT OF CLAIM
1. Add the following words immediately after the word ‘suit’ which is the last word in paragraph 12 “which document was made pursuant to the provision of the (law) Act setting up the defendant.
2. Add the following immediately after the last word in paragraph 52 “although plaintiff is still willing and able to work if given the opportunity”
3. Remember the original paragraph 60 in the amended statement of claim as No. 61 and add a new paragraph 60 as Follows:
“(60) But for the decision of the defendant which was based on wrong premises and unfounded. Plaintiff would have remained in the employment of the defendant until he attains the age of 60 years when he would have put in 35 years in service”
4. In the new paragraph 61 (that is, original paragraph 60 of the amended statement of claim dealing with reliefs) add a (new) relief as an alternative relief to relief No. 3 immediately after the said original relief 3 as follows:
“ALTERNATIVELY:
a. An order directed at or against the defendant to pay to the plaintiff his salary and other emoluments mentioned in paragraph 58 above for the remainder of 13 years which the plaintiff would have served but for the wrongful action of the defendant mentioned in the statement of claim.
b. Further, order directed at or against the Defendant for the immediate payment to the plaintiff the latter’s gratuity and pension benefit calculated as if the plaintiff had retired at the age of 60 years and as if (six) he has served the defendant for 35 years.
c. An order directed at or against the defendant for payment of all other entitlements to the plaintiff as obtain or applicable in the policy, practice and or tradition of the defendant”.
The Application was supported by a 16 paragraph affidavit with Exhibit A (Schedule of amendment). There was no counter affidavit. The motion was extensively argued by counsel on either side and the learned trial Judge on 1/12/04 delivered her ruling and stated inter alia in conclusion:
“The issue for determination is ‘whether the reliefs sought to be amended in the schedule to amendment need calling of fresh witnesses with respect the answer is No. As I have already stated the facts of the Plaintiffs salary and emoluments (sic) are pleaded already in paragraph 58 of the Statement of Claim. I agree with learned (Counsel) L.O. Fagbemi (SAN) that the evidence in support of the new relief sought to be amended is already on record, so that it is necessary and in the interest of justice that the amendment be allowed. I so hold. I am fortified in my view by the decision of the Apex Court in the case of IMONIKHE v. ATTORNEY GENERAL, BENDEL STATE, (supra).
The Defendant/Respondent may if necessary amend its Statement of Defence.
No order as to cost”.
It is against that ruling that the defendant/Appellant has appealed on four grounds of appeal contained in its notice of appeal at pages 44 and 45 of the record.
The Appellant filed its Amended Brief of argument in which it formulated through learned Counsel four issues for determination which are:-
1. Whether following proper application of the applicable legal principles the trial Judge ought to have granted the relief sought by the plaintiff in the light of the following facts and circumstances:-
(a) at the time the application was made the statement of claim, and hence the suit, was incompetent by reason of the fact that all the existing reliefs sought in the statement of claim were not maintainable in law on the facts and circumstances of the case, i.e, the cause of action was non-existent.
(b) the limitation period of three months within which an action could properly be instituted pursuant to Section 2(a) of Public Officers Protection Act in respect of the new relief had expired.
(c) by legal principles an amendment relating to additional reliefs does not relate back to the date of filing of the original statement of claim but from the date on which the amendment was made; and
(d) the case of both sides had been closed and the case had been fixed for hearing of addresses by counsel.
2. Whether the amended statement of claim which was existing at the time the motion was filed disclosed a reasonable cause of action and whether the trial judge was wrong in refusing in her ruling to entertain the oral application by the counsel for the defendant in the course of his address on the motion to have this suit struck out for being incompetent for the reason that the suit did not disclose a cause of action as the reliefs claimed in it were not maintainable, an issue that concerns the jurisdiction of the court to entertain the suit.
3. Whether the trial Judge acted in breach of the defendant’s constitutional right to fair hearing when she failed to consider the case put forward before her by the defendant that she ought not to grant the motion for amendment in this case because the limitation period prescribed for bringing a suit against the defendant by Section 2(a) of Public Officers Protection Act had expired because she only mentioned the fact that that submission was made to her and authorities cited before her to support the contention, but she totally neglected to embark on the consideration of them in her ruling.
4. Whether the ruling of the trial Judge is erroneous in that at the commencement of the suit, the writ of summons and the statement of claim did not disclose a reasonable cause of action because none of the reliefs claimed by the plaintiff in those two processes was maintainable by it because:-
(i) the employment of the plaintiff did not and was not alleged to have statutory flavour and he was not alleged to have a legal estate or right in the official quarters in which he resided;
(ii) the effect of the writ of summons and the statement of claim in a suit to disclose a cause of action is to render the suit incompetent and incurably bad and liable to be struck out;
(iii) the only remedy that is open to such a plaintiff is to commence a new suit; it is not open to the plaintiff to amend such processes;
(iv) the court lacks jurisdiction to entertain such a suit; and
(v) the court and/or the parties lack the power to confer on the court jurisdiction to entertain an incompetent suit by amendment or any other means.
The Respondent raised three issues for determination which are as follows:-
1. Whether having regard to the legal principles guiding amendment of pleadings and all the circumstances of this case, the learned trial Judge was wrong in granting the amendment sought?
2. Whether the Appellant has not waived his right to defence of limitation if any at all and whether the relief sought to be included in the Plaintiff/respondent’s claim was caught by the provisions of Public Officers Protection Act and
3. Whether the Plaintiff/Respondent’s suit was incompetent?
While the Appellant in its Amended Brief argued their four issues together the Respondent in his Brief took his issues for determination seriatim and I find it easier to handle, to utilize the issues in the form articulated by the Respondent. I shall however, take them from the bottom up that is Issues 3, 2 and 1 respectively.
ISSUE 3:
This issue has to do with whether or not, the plaintiff/respondent’s suit was incompetent since the Appellant contended that at the commencement of the suit the writ of summons and the statement of claim did not disclose a reasonable cause of action because none of the reliefs claimed by the plaintiff in those two processes was maintainable by it because:
(i) the employment of the Plaintiff did not and was not alleged to have statutory flavour and he was not alleged to have a legal estate or right in the official quarters in which he resided;
(ii) the effect of the writ of summons and the statement of claim in a suit to disclose a cause of action is to render the suit incompetent and incurably bad and liable to be struck out;
(iii) the only remedy that is open to such a plaintiff is to commence a new suit, it is not open to the plaintiff to amend such processes;
(iv) the court lacks jurisdiction to entertain such a suit; and
(v) the court and/or the parties lack the power to confer on the court jurisdiction to entertain an incompetent suit by amendment or any other means.
The Respondent in response said that the fact that a claim or action may not succeed is not a reason or basis to conclude that the court lacks jurisdiction to entertain the same. He cited the cases of Arowolo v. Akapo (2003) 8 NWLR (Pt. 823) 451 at 502 – 503, Gudu v. Kitta (1999) 12 NWLR (Pt. 629) 21.
Mr. Fagbemi (SAN) learned Counsel for the Respondent stated that it is a settled principle of law that in order to determine whether the statement of claim discloses a reasonable cause of action or not, what the court should consider are the contents of the statement of claim and not the extent to which one relief can co-exist with another. That it is irrelevant to consider the weakness of the plaintiff’s claim. That the important thing is to examine the averments in the statement of claim and see if they disclose some cause of action or raise some questions fit to be decided by the court. He cited Dantata v. Muhammed (2000) 7 NWLR (Pt. 664) 176 at 197.
Learned Counsel went on to say that the plaintiff’s statement of claim discloses his right to institute an action for a wrongful act alleged, to wit; wrongful termination of his employment and breach of his constitutional right to fair hearing by an organ or institution regulated by statute and the constitution. That Section 36 of the 1999 Constitution of the Federal Republic of Nigeria confers on every citizen with a grievance the right of access to courts. That it makes it obligatory on the court that will determine the rights of the person to accord him a fair hearing. He referred to the case of: Kenon v. Tekam (2001) 14 NWLR (Pt. 732) 12 at 33 -34.
Mr. Fagbemi (SAN) submitted further that the two declaratory reliefs claimed by the respondent in paragraph 60 of his Amended statement of claim are the principal reliefs upon which other reliefs depend. That it is a settled principle of the law that the court can grant declaratory reliefs alone. He referred to Order 25 Rule 5 of the Federal High Court Rules 2000 and the case of Shitta-Bey v. Federal Public Service Commission (1981) SC 40.
Learned Counsel for the Respondent said the action is competent and the court has power and jurisdiction to adjudicate upon it. That what the appellant is attempting is to defeat justice on the altar of mere technicalities which the court frowns at. He cited Obiora v. Osele (1989) 1 NWLR (Pt.97) 279 at 302.
Also, that the appellant’s arguments are hypothetical and academic. That where there are two simultaneous applications, one destructive and the other curative, the court will hear the curative one before the destructive application. The learned Counsel said even if the appellant had a valid objection on the incompetence of relief No.3 which is not conceded that the said relief is incompetent the alternative relief sought to be let in and which the learned trial Judge allowed has the effect of curing the incompetence. He cited the cases of Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652 at 667 -778. Consortium MC v. NEPA (1992) 6 NWLR (Pt. 246) 132 at 142 paras G – H. Ceekay Traders v. G.M. Co. Ltd. (1992) 2 NWLR (Pt. 222) 132 at 147 – 148 to 159.
The learned SAN said that the Respondent’s action is maintainable in law and in no way caught by the provision of the Public Officer’s Protection Act.
Furthermore learned Counsel said the questions raised in the pleadings can only be resolved at full trial and evidence taken.
In his reply Brief, learned Counsel for the Appellant, Aluko-Olokun (SAN) said that this is not a case in which a claim or action may not succeed but one in which the court has no right to grant the reliefs claimed as the court has no jurisdiction to entertain incompetent claims. That where multiple reliefs are claimed any relief over which the court lacks jurisdiction is liable to be struck out.
I would want to see what the judicial authorities or at least some of them said on the matter presented in this issue. See World Gate Ltd. V. Senbajo (2000) 4 NWLR (Pt. 654) 681- 682 per Galadima JCA.
“In an amendment of a statement of claim, a new cause of action which did not exist at the date of the writ cannot be introduced.
Indeed, if the true points at issue are to be determined, the pleadings of either party should be rigidly adhered to and the court should make such arrangement as are necessary for the real rights of the parties to be determined. However, if an amendment is to the effect that it would bring into an action an entirely fresh cause of action arising after the action had been started, such an amendment may not be allowed. The amendment in such a case should not be entertained in as much as it relates to a cause of action which did not exist at the time when the writ was issued. Facts which arose after the action by the 1st respondent was filed has the effect of starting a fresh cause of action (Gowan v. Ike-Okongwu (1994) 2 NWLR (Pt. 326) 355 referred to.

1. An amendment merely for the purpose of determining the real issue (5) in controversy between the parties ought to be permitted at any stage of the proceedings even where the action had been reserved for judgment or an appeal provided:
(a) the applicant is not acting mala fide or trying to over reach 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 done injury to the other party which cannot be ameliorated by costs or otherwise assuaged.

An amendment which is intended by a party to change the nature of the case before the court will generally be refused because it is not made bona fide but mala fide and is intended to overreach the other party” (Oladiti v. Sungas Co. Ltd. (1994) 1 NWLR (Pt. 321) 433 referred to) P. 681 paras D-G per Galadima JCA.

A cause of action accrues when a breach of a person’s legal right occurs and not when damages are suffered. See USA Plc. v. Abdullahi (2003) 3 NWLR (Pt. 807) 359, See. Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1.

In Consortium MC v. NEPA (1992) 6 NWLR (Pt. 246) 132 at 142 per Nnaemeka-Agu JSC D – E, G – H.
”I must reiterate the fact that our courts have deliberately shifted away from the narrow technical approach to justice which characterized some earlier decisions of courts on the matter. Instead, it now pursues the course of substantial Justice….
To hold that learned Counsel for the appellant was right in his contention will tantamount to sanctioning injustice through the short arm of technicality. That is not our current aim in the administration of justice”.
The point is that the spirit of justice does not reside in Rules of Court, in forms and formalities, nor in technicalities. These should aid not defeat justice. see Obiora v. Osele (1989) 1 NWLR (Pt. 97) 279 at 302 per Oputa J.S.C.

It is trite that jurisdiction can be raised even for the first time at the Supreme Court. See Usman Dan Fodio University v. Kraus Thompson Organisation Ltd. (2001) 15 NWLR (Pt. 736) 305 per Aderemi JCA.

If there are two motions, one seeking to raise a point of non-compliance with a rule or an order by court and the other seeking to strike out or dismiss the proceedings on the ground of the non-compliance, a court of justice and equity ought to take the motion which seeks to regularize the proceedings and preserve the form being struck out or summarily dismissed first before considering the application for striking out or dismissal for non-compliance. Indeed, invariably in practice, the motion to summarily dismiss or strike out the appeal is withdrawn and struck out and the applicant compensated with costs. This is in accord with the rule that the courts are now expected to do substantial, and not technical justice. In such cases, the aim of the court ought to be to lean in favour of the proceeding that will bring about the doing of substantial justice. See Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652 at 667 – 668 per Nnaemeka-Agu JSC.
Once there is jurisdiction in the court to adjudicate on a claim, a defendant/applicant can only determine the case in limine by application under the Rules of Court. See Ege Shipping & Trading Industry v. Tigris International Corporation (1999) 14 NWLR (pt. 637) 70 at 89 – 90; Shell BP Petroleum Dev. Co. of Nigeria v. Onasanya (1976) 6 SC 89.
It must not be lost sight of however that the jurisdiction of the court is determined by the claim on the writ of summons of the Plaintiff. See Adeyemi v. Opeyori (1976) 9 – 10 SC 31.
From all that have been stated above and the authorities enabling it is clear that the Issue No 3 raised is answered by me in the Positive. That is the Plaintiff/Respondent’s suit was not incompetent and the arguments and submissions to the contrary obviously academic and flawed, with the overreaching capacity to terminate a suit in limine without a legal basis with the added injury of causing substantial miscarriage of justice. For emphasis the trial court did not lack jurisdiction to adjudicate.
ISSUE 2:
On this issue, Mr. Aluko Olokun (SAN), learned Counsel for the Appellant said one of the grounds on which the appellant opposed the motion of the respondent was that in respect of the additional reliefs sought by the Respondent the limitation period within which the additional reliefs could lawfully be sued for had expired pursuant to Section 2(a) of the Public Officers Protection Act, cap. 359 of the Laws of Nigeria, 1990 and that being so what the respondent was seeking to do was to prosecute a stale claim as the prescribed limitation period was three months while the cause of action occurred about one year and a half before the motion was filed.
In Response learned counsel for the Respondent said this issue relates to waiver and the nature of reliefs and whether reliefs are mutually exclusive or whether they are contiguous upon one another. That assuming without conceding that Appellant’s argument is valid, considering the time it raised the issue of incompetence or noncompliance with the provisions of the Public Officers Protection Act the appellant is taken to have waived that right. That the position of the law is that a person who is entitled to the benefit of a statutory provision may waive same and allow the transaction to proceeds as though the provision had never existed. He cited the case of Udu v. Kraus Thompson Organizations Ltd. (2001) 15 NWLR (pt. 736) 305.
Learned Counsel for the Respondent stated that raising such a defence after the close of case and in response to a motion on amendment amounts to a waiver of that right. That the defence of limitation being a special defence, the way and manner in which it can be raised are governed exclusively by the rules of court. That it should be noted that demurrer had been abolished; hence the raising of the defence of limitation cannot be raised without first raising it in the pleadings for reason of fair hearing and to avoid springing a surprise on the opponent. He cited Order 25 Rules 1 and 2(1) Federal High Court Rules 2000. Ademolaju v. Adenipekun (1999) 1 NWLR (pt. 587) 440 at 450 D – E.
Learned Counsel submitted further that the appellant has failed woefully in this regard as he raised the issue of limitation for the first time in response to the motion for amendment which showed appellant’s disregard for the rules of court which are to be obeyed failing which the action taken in that regard is vitiated for noncompliance. He referred to Onyemeizu v. Orjiako (2000) 6 NWLR (pt. 659) 45 E – F.
Learned Counsel said that the statute of limitation is a defence which can be waived and so it cannot be strictly said that an action taken outside the limitation period is incompetent for lack of jurisdiction of the court. He cited Araka v. Ejeagwu (2000) 15 NWLR (pt. 692) 718 para A.
The learned SAN went on to contend that where one of the reliefs claimed is improper as complained by the Appellant that the plaintiff/respondent’s Relief 3 is not maintainable for reason of master/servant relationship between the parties, the claimant goes home without the improper relief whilst other reliefs properly claimed survive and thus saved. That it has nothing to do with the issue of jurisdiction which is a constitutional matter. That even if all the reliefs are improper, the court is not precluded from looking at their merit to know whether indeed they are improper or not and this interlocutory stage is not the right time to delve into that. Learned Counsel said courts should guard their jurisdiction jealously and anything that would restrict their power must be resisted. He cited the case of Olaofe v. University of Ibadan (2001) 10 NWLR (pt. 720) 149 paras B – C. That the court has a duty to do justice in any case before it between parties to a dispute and not to obstruct the course of justice.
In the Reply Brief learned counsel for the Appellant said it would not have served any useful purpose to raise a defence of limitation of time when the new relief was not yet in place. That it is their legal defence to the application to amend. That they were alerting the court that the time limited by statute for making such an application properly had expired and that at that point in time such an application was incompetent. learned counsel said in any event since such an additional relief by law cannot date back to date of filing the suit granting such an amendment to include it at that point in time was otiose.
That is in summary the arguments for and against the issue under review. I shall cite some of the authorities to me for a clearer picture of the legal principles guiding in the specific circumstances of this present case.
See the case of:- Araka v. Ejeagwu (2000) 15 NWLR (pt. 692) 684 Held Per Iguh JSC at 710.
A Limitation Law or Act removes the right of action, the right of enforcement and the right to judicial relief and leaves the plaintiff with a bare and empty cause of action which he cannot enforce if such a cause of action is statute barred. Accordingly, where the law provides for the institution of an action within a prescribed period in respect of a cause of action accruing to the plaintiff, proceedings shall not be commenced after the time prescribed by such a statute. (Obiefuna v. Okoye (1961) 1 SCNLR 144; Egbe v. Adefarasin (1987) 1 NWLR (pt. 47) 1; savannah Bank of Nigeria Ltd. V. Pan Atlantic Shipping Co. Ltd (1987) 1 NWLR (pt. 49) 184 referred to).

Where limitation of action is related to torts and contract, it is an accepted principle that the statute of limitation is a defence which can be waived.

To that extent it cannot strictly be said that an action taken outside the limitation period is incompetent for lack of jurisdiction of the court. However, after the plea of limitation has been raised and established, the court lacks jurisdiction to proceed further to determine other issues of merit in the case. See Araka v. Ejeagwu (2000) 15 NWLR (pt. 692) 684 at 718 para A per Ayoola JSC.
See also Ademolaju v. Adenipekun (1999) 1 NWLR (pt. 587) 440 at 450 D – E per Rowland JCA:
A limitation law does not operate in a vacuum. Hence it is the defendant who ought to plead and prove that the action is statute barred (Savannah Bank Ltd. V. Pan Atlantic (1987) 1 NWLR (pt. 49) 212 at 259 referred to).

Where a statute confers specific and special powers on any person or authority for the performance of certain acts and prescribes the manner in which the powers are to be exercised he cannot deviate from that procedure, else the excess can be called into question in the court of law except where ouster of jurisdiction abound. See Oraofe v. University of Ibadan (2001) 10 NWLR (pt. 720) 126 at 146 paras F – G per Adekeye JCA.

A provision in a statute ousting the ordinary jurisdiction of the court must be construed strictly. Thus if such a provision is reasonably capable of having two meanings that meaning shall be taken which preserves the ordinary jurisdiction of the court. See Olaofe v. University of Ibadan (2001) 10 NWLR (pt.720) 126 at 147 para D – E, 149 para C per Adekeye JCA.
Generally, courts should guard their jurisdiction jealously and anything that would hamper their powers must be resisted. In the instant case, the Public Officers (Special Provisions) Act of 1984 is a punitive Act which takes away the vested right of a public officer in certain circumstances and restricts his access to court. It is interpreted strictly and narrowly against the maker. P. 149 paras B – C per Adekeye JCA in Olaofe v. University of Ibadan (supra).
A court should not be in a haste to decline jurisdiction where and when it affects deprivation of right of citizens P. 149 para E per Adekeye JCA in Olaofe v. University of Ibadan (supra).
Bearing that caution above in mind and seeing nothing to encourage me to deviate from the warning I would say without difficulty that the matter of the Statute of Limitation does not come into play in this instance the reasons not only those earlier mentioned but because the pleading as amended is to take the date of the filing of the earlier pleading which is now being amended and since by that earlier date limitation did not occur, it would therefore not be relevant to the successor of that pleading which stepped into the position of the previous. Therefore Issue No.2 is answered in the negative that is that issue whether or not limitation occurred is not relevant for the purposes of this interlocutory appeal.
ISSUE 1:
In respect of this issue the learned counsel for the Appellant referred to the reliefs sought from the trial court up to the time the motion which gave rise to this appeal was filed. He said in regard of the first three reliefs that the law is clear that an employee whose employment does not enjoy statutory flavour, where he is dismissed or otherwise relieved of his employment, cannot seek these three reliefs because the determination of the employment brings the relationship of master and servant to an end and the employee cannot obtain an order for annulment of the determination of his employment because the doing of such an act is within the right of the employer. That the only remedy that avails the employee is an award of damages for breach of contract. He referred to the cases of:
1. Katto v. CBN (1999) 6 NWLR (pt. 607) 390.
2. CBN v. Okosun (1996) 2 NWLR (pt 428) 77.
3. Ogbaji v. Arewa Textiles Plc. (2000) NWLR (pt. 678) 322.
4. Union Bank v. Ogboh (1995) 2 NWLR (pt 360) 647.
5. Ogbuike v. National Steel Council (1976) NNLR.
6. Jida v. CBN (2001) 5 NWLR (pt. 705) 165.
Learned Counsel for the Appellant went on to state that in the instant case having regard to the facts of the case the employment of the plaintiff did not have statutory flavour because there is no statute which protects it. That the terms of the employment are merely contained in a written document which gave the defendant the right to bring the employment to an end by giving the plaintiff one month salary or one month notice at the absolute discretion of the defendant. Learned Counsel said the fifth relief which sought to prevent the defendant from ejecting the plaintiff from the premises that was allotted to the plaintiff as his official residence while he was in the employment of the defendant is not maintainable because it is settled law that the plaintiff did not have an estate in the property. Learned counsel said Plaintiff/Respondent was only a licensee and following the determination of his employment, he ceased to have any legal right over the property and a party who has no legal right cannot obtain an injunction. He referred to the cases of:
1. Yalaju-Amaye v. A.R.E.C. (1990) 6 SCNJ 149; (1990) 4 NWLR (145) 422 at 451 – 452.
2. Akibu v. Oduntan (1991) 2 NWLR (pt. 171) 1 at 10.
3. Union Beverages Ltd v. Pepsi cola (1994) 3 NWLR (pt. 330) 1 at 12.
4. Paul v. Ozokpo( 1995) 4 SCNJ 119 at 139.
5. Akuneziri v. Okenwa (2000) 15 NWLR (Pt. 691) 526.
In respect to the 4th claim learned counsel for Appellant said that the failure of the first three reliefs makes it unnecessary to consider the claim as it is predicated on the success of the plaintiff on those claims. That it is ancillary to the first three reliefs and when an employment is determined the employee ceases to work and he ceases to have a right to demand for his salary and the payment of salary to him ceases from the day the employment is determined.
Learned Counsel for the Respondent stated on his own part that the additional relief sought by the plaintiff/respondent and granted by the lower court is sustainable by the existing facts at the commencement of the action and the relief being sought did not arise after the cause of action. That the reliefs sought to be amended need no calling of fresh witnesses as facts of the plaintiff’s salary and emolument are already pleaded in paragraph 58 of the Statement of Claim and admitted. Learned Counsel said the opposition to the amendment on the solitary ground of being statute barred is untenable since all amendments date back to the time of the commencement of the action. He cited Vulcan Gases Ltd. v. G.F. Ind. (2001) 9 NWLR (pt. 719) 610 at 640 – 641. Learned Counsel said the proper consideration for the court is whether the averments in the statement of claim can sustain the new relief. That if yes, then other Issues or arguments become otiose and academic, which the court is not enjoined to dabble into. He referred to Ogbonna v. The President Federal Republic of Nigeria (1997) 5 NWLR (pt. 504) 284 at 288.
Learned Counsel further stated that the grant of the amendment of the relief will not give rise to any need to call new evidence to prove same because the pecuniary entitlements of the Respondent is not in issue as parties had agreed in the pleadings as to the respondent’s pecuniary entitlements and the only issue remaining is whether or not the plaintiff is entitled to those reliefs in law which is to come at the hearing of the substantive case and not otherwise. Learned counsel said it is settled principle of law that when one talks of fair hearing, it must be conceived with reference to the real issues in litigation between the parties. He cited the case of Consortium MC v. NEPA (1992) 6 NWLR (pt. 246) 132 at 142 paras E- F.
Mr. Fagbemi (SAN) of counsel for Respondent said the totality of the appellant’s argument is to determine the substantive issue at the High Court at this stage of interlocutory appeal whereas, the issue in this appeal, strictly speaking relates to amendment and it is trite law that the Court of Appeal should not in an interlocutory appeal determine the substantive issue as doing so will prejudice the pending substantive cases. He cited the case of United Spinners (Nig.) Ltd. v. Chartered Bank (2001) 14 NWLR (pt. 732) 195 at 220 paras E – F. Mobil Prod. (Nig) Unlimited v. Monokpo (2001) 18 NWLR (pt. 744) 212 at 249 paras D – F.
In his reply brief learned counsel for the Appellant said in the present instance the amendment will not date back to the date of the filing of the suit because such an amendment will not be allowed to deprive the opposite party of a defence of limitation.
I would want to restate the relevant part of the statement of claim paragraph 60:
1. DECLARATION that the dismissal of the plaintiff from his employment with the Defendant on 20th June 2003 is illegal, ineffectual and unconstitutional for the breach of the plaintiff’s right to fair hearing and the rules and regulations governing his contract of service with the Defendant.
2. DECLARATION that the dismissal of the Plaintiff from his employment with the Defendant on 20th June 2003 for offences acts and or omission which occurred during the period when he was on annual/eave and not on duty is wrong and unlawful, null and void.
3. AN ORDER reinstating the plaintiff back to his employment with the Defendant.
4. AN ORDER directing the defendant whether by itself, its servants, agents, privies or assigns howsoever to pay to the plaintiff the latter’s salaries, emoluments and entitlements from July 2003 until the Plaintiff’s re-instated.
5. AN ORDER of injunction restraining the Defendant whether by itself, its servants, and/or privies howsoever from ejecting the plaintiff from the defendant’s quarters at Block 06 Flat 44 (Intermediate and Junior) Garki Abuja.
In seeking the amendment and further amendment the foregoing remained what was asked to be brought in the amendment was an ALTERNATIVE RELIEF:-
In the case of Ibe v. Onuorah (1998) 7 NWLR (pt. 558) 383 at 393 B – C per Ubaezonu JCA:
It is not a blank cheque that every application for amendment must be granted. Every application for amendment to correct a mistake or slip in the proceedings and designed to meet the ends of justice shall be granted no matter at what stage in the proceedings the application is made.
On the other hand, any application that is mala fide or will prejudice or cause injustice to the other side will not be granted. (Okafor v. Ikeanyi (1979) 3 – 4SC 99 referred to).

By virtue of Section 16 of the Court of Appeal Act, the Court of Appeal has powers to amend pleadings filed in the High Court. See Ibe v. Onuorah (supra) at 392 G – H.
Owata v. Anyigor (1993) 2 NWLR (pt. 276) 380 referred to In Union Bank Ltd. v. Ogboh (1995) 2 NWLR (pt. 380) 647 at 663 Paras C – E per Belgore JSC:-
Sometimes, to obviate ambiguity or to aver some facts, a party may amend his pleadings under certain principles before the end of hearing or judgment or sometimes on appeal. It is for the sake of doing justice to the parties that the court is always lenient and favorably disposed to an amendment of pleading at any stage of hearing and before judgment so as to bring to focus the trend of substantial evidence of the dispute between the parties. The appellate court can even make such an amendment if asked for so far as it will not be to the disadvantage of the other side or occasion a miscarriage of justice. (Ogwuma v, IBWA Ltd. (1986) 1 NWLLR (pt 73) 658; Kate Enterprises Ltd. V. Daewoo Nig. Ltd. (1983) 2 NWLR (pt. 5) 116 referred to.

On the exercise of a trial court’s discretionary powers, see Ceekay Traders Ltd. v. Gen. Motors Co. Ltd. (1992) 2 NWLR (pt. 222) 132 at 162 – 163 paras H – A.
A trial Judge is entitled to exercise discretion but he must give reasons for so doing to give the appellate court opportunity to know how he exercised his discretion. (Solanke v. Ajibola (1968) 1 All NLR 46 at 54 referred to) per Olatawura JSC.
Where a trial court has exercised discretion over a matter, an appellate court should not interfere on the ground that it might have exercised it differently if it were in a position to do so. An appellate court is however, entitled to interfere with the exercise of discretion of a trial court if the appellate court is satisfied that it is in the interest of justice to do so. See Kawu JSC at 146. (University of Lagos v. Aigoro (1985) 1 NWLR (pt. 1) 143 at 148; Demuren v. Smith (1967) 1 All NLR 329 at 333; President of Ijebu Province v. Laguija (1955) 14 WACA 549 at 552 referred to. I would answer this Issue No.1 in the negative as the learned trial Judge had the discretion to consider the amendment sought which discretion she properly exercised judicially and judiciously. I agree with the attitude of the Respondent’s Counsel that Appellant is seeking to use this forum to determine the substantive suit which this court cannot do.
In the circumstances of this case and the reasons above given this appeal lacks merit and is dismissed. I affirm the ruling of the lower court granting the amendment.
I order N5,000.00 costs to the Respondent.

IBRAHIM TANKO MUHAMMAD, J.C.A: I am in full agreement with my Lord’s judgment. The appeal lacks merit and is equally dismissed by me. I abide by order as to costs.

OLABODE RHODES-VIVOUR, J.C.A.: My Lords, the changes in counsel knowledge of his case as it progresses and mistakes, omissions in drafting his pleadings makes it necessary to make amendments to processes already filed in Court. The underlying principle is that all amendments should be made which are necessary to ensure (hat the real issues in controversy between the parties are presented for determination provided such amendments if made would not cause injustice to the other party.

Indeed amendments are allowed at any stage of the proceedings even on appeal. Amendments would be allowed before trial even to include a new cause of action provided the new cause of action occurred before the filing of the Suit. Amendments would be allowed during trial to bring pleading in line with evidence already led and after the close of evidence provided the evidence is already on record.
And on appeal amendments would be allowed to bring the pleadings in line with the evidence or where the amendments would do substantial justice between the parties.
See Oloto v. Attorney General 1957 SSCNLR p. 375; Oguntimehin v. Gubere 1964 1 ALL NLR p. 176.
This is a case of late amendment and the trial Judge was right to allow it. This is so since there is no need to call fresh evidence as relevant evidence was already on record. For the fuller reasons in the Lead judgment of my learned brother, the Hon. Justice Mary U. Peter Odili, J.C.A.
I dismiss this appeal with costs of N5,000 to the respondent.

 

Appearances

Chief B. Aluko-Olokun (SAN),
Simon Nnadi Esq. For Appellant

AND

L.O. Fagbemi (SAN),
K. O. Fagbemi Esq. For Respondent

 

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