CHIEF CHIDI IMEGWU JP & ORS V. RISONPALM LTD. & ORS
(2011)LCN/4416(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of March, 2011
CA/PH/195/2001
RATIO
APPLICATION FOR AMENDMENT: WHETHER WHERE AN AMENDMENT IS TO CHANGE THE NATURE OF A CASE BEFORE THE COURT, IT WILL BE REFUSED
As ably argued by learned counsel for the respondents, an amendment which is intended by the appellant to charge the nature of the case before the court will be refused because it is not made bonafide but malafide and is intended to over reach the other parties: see the case of World Gate Ltd. V. Sowbanjo (2000) 4 NWLR (Pt 654) 669: Gowon V. Ike Okongwo (1994) 2 NWLR (Pt 326) 364. PER ISTIFANUS THOMAS J.C.A
REPRESENTATIVE: WHO IS A REPRESENTATIVE; DUTY PLACED ON A PARTY SEEKING TO DEFEND IN A REPRESENTATIVE CAPACITY
A representative is a person authorized to act for others. A party wishing to use or defend in a representative capacity must obtain the authorization of the person or persons he seeks to represent. See OKUKUJE V. AKWIDO (2001) 10 WRN 1. PER T. O. AWOTOYE J.C.A.
REPRESENTATIVE ACTION: WHETHER THE COURT HAS THE POWER TO ORDER ANY OF THE PERSONS REPRESENTED TO BE MADE PARTIES EITHER IN LIEU OF, OR IN ADDITION TO, THE PREVIOUSLY EXISTING PARTIES
There is need to stress the fact that the court still reserves the power to order any of the persons represented (even though representation had been expressed on the writ) to be made parties either IN LIEU OF, OR IN ADDITION 7 (2) of the 1987 Rivers State High Court Rules. For clarity’s sake ORDER 11 Rule 7 (2) is quoted hereunder. “7(2) The court may order any of the persons represented to be made parties either in lieu of, or in addition to, the previously existing parties.” PER T. O. AWOTOYE J.C.A.
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
(OFR) Justice of The Court of Appeal of Nigeria
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
CHIEF CHIDI IMEGWU JP & 4 ORS Appellant(s)
AND
RISONPALM LTD.
CHIEF I.O. NWAUCHE & 73 ORS. Respondent(s)
ISTIFANUS THOMAS J.C.A (Delivering the Leading Judgment): The interlocutory appeal is against the ruling of the High Court of Rivers state, Port Harcourt Division, delivered on 13th Feb, 1996, by M. R. E. Manuel, (Judge) in which he dismissed the appellant’s application for amendment of their writ of summons and statement of claim with a plan survey on the land in dispute.
Dissatisfied with the ruling, the appellants filed a Notice of Appeal on 24th April, 1996 containing 2 grounds of appeal.
The concise facts of this interlocutory appeal is that, at the lower court, the appellants in a representative capacity for themselves and as representing the entire citizens of Umuagbai Community in Ndoki, Oyingbo Local Government Area of Rivers State, Commenced the action by a writ of summons filed on 2nd June, 1992. The writ was against the respondent, namely Risonpalm Ltd. The appellants as plaintiffs filed their statement of claim.
By a motion on notice, the second sets of defendants, but now 2nd sets of respondents sought the leave of trial court, for an order joining them as the 2nd set of defendants for themselves and as the representatives again, of the entire Umuagbai Community Ndoki (except the plaintiffs) in Oyingbo Local Government Area of Rivers State, and also for leave of court for the 2nd set of defendants, to defend the suit. The above stated application of the 2nd set of defendants was granted at the tower court on the 22nd Sept, 1992.
Still at the lower court, the plaintiffs, now appellants without express leave of the court proceeded and filed their (proposed) amended writ of summons and the statement of claim with the proposed new plan as their reply to the 2nd set of defendant’s counter affidavit. The 2nd set of defendants urged by motion, praying the trial court, to set aside the appellant’s proposed amendments on grounds of irregularity of serving court processes. In a considered ruling, the lower court set aside the plaintiffs’ service of court processes without consent of the court. It was after all this that the plaintiff’s application for leave to amend the writ and statement of claim and the plan was considered by the trial judge and, dismissed the application, hence the appeal.
Based on the two grounds of appeal, the appellants have raised two issues for determination and they read as follows:
1. Whether the lower court was right when it refused the amendment of the capacity in which the plaintiffs/appellants brought this action and other consequential amendment for the purposes of determining the real questions in controversy between the parties.
2. Whether the lower court was right in relying on extraneous and irrelevant matters in coming to its decision to refuse the amendments sought, and whether its conclusion did not prejudge the substantive case before it.
The entire respondent’s brief of argument was fifed and granted on 11th Feb, 2001 by this appellate court.
The respondent’s brief of argument containing two issues for determination is more concise and I will follow same in determining the appeal. The respondents’ two issues are as follows:-
3.01. Whether the rower court’s refusal of the appellant’s amendment of the capacity in which they sought the action was justified in law.
3.02. Whether the rower court relied on extraneous matters in refusing the amendment sought by the appellants and in so doing prejudices the substantive case before it.
In my considered opinion, issues will be arrived at in determining the appeal. In this appeal there is no need for determination of separate issues because the two are interrelated.
The main contention of the appellants is that, the lower court refused to allow them amendment of their writ and statement of claim. That in the first claim, their capacity in the original was for themselves and the entire community of Umuagbai whiles the first respondent was a limited liability company. That the 2nd set of respondents also claimed that their capacity to defend the appellants was based on their behalf and also on behalf of the same entire Umuagbai Community. The appellant is of the view that the respondents in the instant matter would not have suffered no hardship or prejudice as pleadings had not even been completed nor exchanged on all sides.
In my opinion, the appellants have not shown the truth, because they had filed their statement of claim. Not only that the statement of claim is clear at page 3-5 of the record which was filed on 21st July, 1992. Paragraphs 182 of the appellants’ statement of claim is as follows:-
“1. The plaintiffs are the in habitants of Umuagbai in Oyingbo Local Government Area of Rivers State.
2. The defendant is a parastatal of the Rivers State Government.”
Now, without first seeking leave of the trial court to amend the original writ and statement of claim, the plaintiffs/appellant served the 1st defendant and the 2nd set of defendants without even showing that it is a proposed amendment, see pages 64-69 of the record. In the new statement of claim, the plaintiffs/appellants had completely changed the capacity in which they were claiming. Paragraph 1 at page 64 of the records reads as follows:-
“1. The plaintiffs are members of some of the families in Umuagbai Community in Oyingbo Local Government Area of Rivers State … and bring this action for themselves and as representing the said families that own land in the area…”
Based on the improper service of court process without leave of the court, the respondents moved motion to dismiss the writ and statement of claim. Same was granted but struck out only.
The appellants then, formally, filed a motion for leave to amend the original writ and statement of claim.
In my considered finding, there is a grant difference between the original writ and statement of claim in which the appellants’ capacity was for themselves and representing the entire Umuagbai Community. In the proposed amendment sought to be granted, the capacity has shifted from the entire Umuagbai community to sue for themselves and as representing the 19 families that own land in the area trespassed upon by the 1st defendant. The appellant’s amendment is not a simple amendment. As ably argued by learned counsel for the respondents, an amendment which is intended by the appellant to charge the nature of the case before the court will be refused because it is not made bonafide but malafide and is intended to over reach the other parties: see the case of World Gate Ltd. V. Sowbanjo (2000) 4 NWLR (Pt 654) 669: Gowon V. Ike Okongwo (1994) 2 NWLR (Pt 326) 364.
In the instant appeal, the application to amend not only the capacity of the parties, but would affect the pleadings of the plaintiffs/appellants and the respondents. This drastic change of the parties will create a new case. The appellants had realized that the capacity of the entire Community of Umuagbai in Ndoki Area had no interest in the original or even in the purported amendment. It is very clear that the earlier claim initiated by the appellants was for themselves and as representing the entire Community of Umugbai including the 2nd sets of defendants/respondent, and the moment the 2nd set of respondents were dully joined by the leave of court, as argued by the respondents, the appellants made a volt face by filing the motion which was heard and dismissed the application, for because the capacity had changed for leave to sue for and on behalf of the 19 families in Umuagbai Community except the 2nd set of respondents.
I have carefully read the lower court’s ruling at pages 123-139 of the record in which appellant’s prayer for amendment was refused. I find no fault of the trial court’s ruling.
In the final analysis, the interlocutory appeal has no merit whatsoever, and is hereby dismissed by me. Costs of N50, 000.00 in favour of the two sets of respondents and against the appellants.
M. DATTIJO MUHAMMAD, J.C.A: I read in draft the lead judgment of my learned brother Thomas J.C.A. I agree with him that the appeal lacks merits. I dismiss the appeal as well at a cost of N50, 000 in favour of the Respondents.
T. O. AWOTOYE J.C.A.: I have had the advantage of reading the draft of the judgment just delivered by my learned brother THOMAS JCA.
A representative is a person authorized to act for others. A party wishing to use or defend in a representative capacity must obtain the authorization of the person or persons he seeks to represent. See OKUKUJE V. AKWIDO (2001) 10 WRN 1.
The appellants instituted this action at the trial court in a representative capacity for THEMSELVES AND AS REPRESENTING THE ENTIRE CITIZENS OF UMUAGBAI COMMUNITY IN NDOKI, OYIBO LOCAL GOVERNMENT AREA OF RIVERS STATE.
By a motion on notice the 2nd set of defendants (when the appellants purportedly represented in their processes) sought and obtained leave of trial court to be joined as 2nd set of defendants for THEMSELVES AND AS THE REPRESENTATIVES OF THE ENTIRE UMUA-AGBAI COMMUNITY NDOKI, (EXCEPT THE PLAINTIFFS).
To my mind the grant of the application of the 2nd set of defendants to be joined as defendants by the lower court would have been an effective cancellation of the representation by the appellants if not for the fact that the representation itself was part of the pleadings and the filing of the statement of defence by the second set of defendants would make the representation an issue to be determined by the court.
The application of the appellants to amend their writ of summons and statement of claim to change the representation from the original “for themselves and the entire community of Umuagbai” to “for themselves and as representing the said families that own land in the area” contrary to the order of the court joining the 2nd set of defendants” for themselves and as representatives of the entire Umuagbai Community “tantamounts to an attack on the earlier order of the lower court which, with due respect is an abuse of the process of the court.
The application for the amendment by the appellants was unnecessary. The lower court ought to have ordered an amendment of the various processes in line with its order for amendment as granted to the defendant. See UCHENDU V. OGBONI (1999) 5 NWLR (Pt. 603) 337. Having done that each of the parties would then have to prove their respective representation, representation itself having become an issue to be determined by the court.
There is need to stress the fact that the court still reserves the power to order any of the persons represented (even though representation had been expressed on the writ) to be made parties either IN LIEU OF, OR IN ADDITION 7 (2) of the 1987 Rivers State High Court Rules.
For clarity’s sake ORDER 11 Rule 7 (2) is quoted hereunder.
“7(2) The court may order any of the persons represented to be made parties either in lieu of, or in addition to, the previously existing parties.”
Justice is not like a tennis ball played around at the pleasure of its enthusiasts. It is sacrosanct and should be so treated. I do not see how injustice has been done to the appellants by the lower court.
I see no merit is this appeal for the above reason and the fuller reasons given in the lead judgment I also dismiss the appeal.
I abide by the order as to cost made in the lead judgment.
The application of the appellants is like trying to toss justice around. They seek to represent as plaintiffs persons whom the lower court had already ordered to be joined as defendants.
Appearances
AYODELE AKINTUNDEFor Appellant
AND
AHAM EJELAMFor Respondent
