CHIEF PALMER OMOREGBE v. CHIEF SUNDAY EGHAGHHE
(2011)LCN/4610(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 8th day of June, 2011
CA/B/75/2005
RATIO
PRELIMINARY OBJECTION: DUTY IMPOSED ON A RESPONDENT WHO IS DESIROUS OF RELYING ON A PRELIMINARY OBJECTION CHALLENGING COMPETENCE OF AN APPEAL
By virtue of the provisions of Order 3 Rule 15 (1) of the Court of Appeal Rules 2007, a respondent who is desirous of relying on a preliminary objection challenging competence of an appeal, must give the appellant three days notice thereof before the hearing of the appeal, wherein he shall set out the grounds of his objection and shall also filed a notice of such objection in court. After filing such notice, at the hearing of the appeal, the respondent MUST seek leave or permission of the court to move such Notice of Objection even before the hearing the appeal starts. PER AMIRU SANUSI, J.C.A.
PRELIMINARY OBJECTION: WHETHER A RESPONDENT MUST STILL MOVE THE COURT AT THE ORAL HEARING OF THE APPEAL FOR THE RELIEF/PRAYER SOUGHT EVEN WHERE NOTICE OF PRELIMINARY OBJECTION HAS BEEN ARGUED IN THE RESPONDENT’S BRIEF
… while Notice of Objection may be given in the brief, still that does not obviate him from the need to move the court at the oral hearing for the relief/prayer sought. See Nsirim vs. Nsirim (1990) 3 NLWR (Pt 138) 285; Ononchie vs. Orlogwu (2006) 6 NWLR (975) 65; Oforike vs Madueke (2003) 5 NWLR (Pt 812) 166; Odu vs Agbor – Hemeson (2003) 1 NWLR (Pt 802) 624. Failure of the respondent’s counsel to argue the preliminary objection before going to the oral argument on the main appeal, would tantamount to abandoning or waiving such Preliminary Objection because the court can not fish out and distinguish which arguments are good enough for the preliminary objection and which are for the main appeal, since the purpose of preliminary objection to an appeal is to move the court to see reason why the appeal ought not be entertained in the first place. PER AMIRU SANUSI, J.C.A.
PRELIMINARY OBJECTION: CONSEQUENCE OF THE FAILURE OF THE RESPONDENT TO ORALLY ARGUE THE PRELIMINARY OBJECTION IN COURT
…the respondent’s failure to orally argue the preliminary objection in court, the objection is deemed waived and abandoned by him and is accordingly struck out. See Nsirim vs. Nsirim (supra), Oforkere vs. Madueke (2003) 5 NWLR (Pt.812) 166; Odu vs. Agbor Hemeson (2003) 1 NWLR (pt 802) 624 IBWA v. Sasegbon (2007) 16 NWLR (Pt.1059) 195. PER AMIRU SANUSI, J.C.A.
RECORD OF COURT: WHETHER THE COURT IS ENTITLED TO REFER TO THE RECORDS BEFORE IT IN THE COURSE OF ITS PROCEEDINGS
It is trite law, that a court can and is entitled to refer to the records of before it, in the course of its proceedings. In fact, the Supreme Court in the case of Alhaji Nuhu vs Alhaji Ogele (2003) 12 SCNJ 158 had this to say at page 178 paragraph 3:- “A court is entitled to look at the record in its possession and make use of the information therein. West Africa Provincial Insurance Co. Ltd vs. Nigeria Tobacco Co Ltd (1937) 2 NWLR (Pt 56) 299 at 306. In the case of Texaco Panama Inc vs. Shell PDCN Ltd (2002) 5 NWLR (Pt 759) 209 at 234, Kalgo JSC opined thus: “Furthermore an Appeal Court is fully and correctly entitled to look or refer to the record of appeal before it in consideration of any matter before it” This was also held in the case of Fundunk Engineering Ltd vs. M.C. Authur (1995) 4 NWLR (Pt. 392) 640 at 652. Also See Jikantoro & 60 ors vs. Dantoro & 6 Ors (2004) 5 SCNJ 152 at 177 and Orugbo & Anor vs. Pruleva Una & 10 Ors (2002) 9 SCNJ 12 at 29 or (2002) 16 NWLR (Pt 792) 175 at 206-207. PER AMIRU SANUSI, J.C.A.
LEAVE OF COURT: CIRCUMSTANCE WHEN IT IS INCUMBENT UPON AN APPELLANT TO FIRST SEEK AND OBTAIN LEAVE OF COURT
…where the ground or grounds of appeal raises or raise questions of facts or mixed law and facts and facts, it is incumbent upon an appellant to first seek and obtain leave of court by virtue of the provisions of Section 242 of the Constitution of the Federal Republic of Nigeria 1999. See Alamieyesagha vs. CJN (2005) 1 NWLR (Pt 106) 60; Leaders & Co. Ltd vs. Kusamotu (2004) 4 NWLR (Pt 804) 319. PER AMIRU SANUSI, J.C.A.
GROUNDS OF APPEAL: WHETHER THE MERE FACT THAT AN APPELLANT DESCRIBES OR CALLS A GROUND OF APPEAL AS OF LAW WILL RENDER SAME TO BE SO OR WHETHER THE MERE LABELING OF A GROUND OF APPEAL BY COUNSEL AS ONE OF LAW THAT WILL DETERMINE WHETHER IT IS ACTUALLY ONE OF LAW, OR MIXED LAW AND FACT OR OF FACT SIMPLICITER
it is well settled preposition of law, that the mere fact that an appellant describes or calls a ground of appeal as of law does not necessarily render it to be so. In fact, it is not mere labeling of a ground of appeal by counsel as one of law that will determine whether it is actually one of law, or mixed law and fact or of fact simpliciter. Admittedly, there is usually very slight difference between ground of law, mixed law and fact and purely of fact. However that does not convert ground of mixed law and fact and one of fact to a ground of law. See Ejiwunmi vs. Costain (WA) Plc (1998) 12 NWLR (Pt 576) 149, Lurnlf vs. UBA Ltd (1996) 6 NWLR (Pt 457) 632; Okeke vs. Petmag (Nig) Ltd (2005) 4 NWLR (Pt 915) 245; Obaloymbo vs. Oshaloba (1996) 5 NWLR (Pt 450) 531. PER AMIRU SANUSI, J.C.A.
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
CHIEF PALMER OMOREGBE Appellant(s)
AND
CHIEF SUNDAY EGHAGHHE Respondent(s)
AMIRU SANUSI, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of the High Court of Edo State High Court (the lower court) delivered on 20th day of April, 2004.
At the lower court, the appellant as plaintiff, filed a Writ of Summons against the defendant now respondent, seeking the reliefs set out below:-
a) A Declaration that he is the person entitled to a statutory right of occupancy over the parcel of land now in dispute and not the defendant therefore the Certificate of Occupancy purportedly obtained by the defendant should be set asides.
b) N500, 000 (five hundred thousand Naira) being general damages from the defendant for his trespass to the land.
c) Perpetual injunction restraining the defendant, his servants, agent, and privies from further or continue (a sic) acts of trespass on the land”
After the lower court ordered pleadings, same were filed, exchanged and served on parties before hearing in the suit commenced in earnest. During the hearing and after the plaintiff/appellant called three witnesses to testify, he chose to file a Motion on Notice seeking court’s indulgence to amend his Statement of Claim and he attached the Proposed Amended Statement of Claim to his motion on notice. Despite being served with copy of the motion on notice, the defendant/respondent did not file any counter affidavit to same. The motion was argued by the appellant and after doing so, the respondent replied on point of law.
The lower court after duly considering the arguments of parties learned counsel in its considered ruling delivered on 20th April, 2004 refused to grant the application for amendment and struck it out. The appellant thereupon became dissatisfied with the decision of the lower court dismissing his application and thereupon appealed to this court.
To that effect, he filed a Notice of Appeal containing three grounds of appeal. In the light of antecedents of this appeal, which I will comment on presently, I shall set out below, the three grounds of appeal contained in the Notice of Appeal dated 8th March, 2005. The three grounds of appeal are:-
1. The learned trial Judge erred in law and thereby came to a wrong conclusion when he ruled as follows:
“In this case except for paragraphs 14 and 1 5 of the proposed” amendments, all other paragraphs i.e. 8,23, 24, 25, 26 and 27 portray the plaintiff as arguing his case in reply to paragraphs 8, 9,5 and 7 of the statement of defence.
A plaintiff must not anticipate, argue, his case or pre-empt the defence in his statement of claim which is that the Plaintiff seeks to do in this case by paragraph 23, 24,25, 26 and 27.
PARTICULARS OF ERROR:
A. The amendment sought are facts which form part of Plaintiff’s case upon which plaintiff would lead evidence in the course of hearing the case.
B. The amendment sought do not in any way prompt the Respondent as has ample opportunity of replying to the amendment as he was yet to open his case.
C. There is nothing in the paragraphs sought to be amended that can be said to be argument of the case.
2. The learned trial judge erred in law when he ruled as follows:-
“If the plaintiff has any reply to the statement of defence he should file one and not seek to argue his case or reply to the statement of defence in his statement of claim and style it as an amendment to statement of claim”.
PARTICULARS OF ERROR:
a) It is not mandatory for the Plaintiff/Appellant to file a reply. He has the option of filing a reply or amend his statement of claim if a reply will not adequately take care of all relevant facts needed by him to support his case.
b) A reply can only specifically answer the averments in statement of defence but can not admit new issues not raised in his said statement of defence, in this case there were additional facts in the Plaintiff/Appellant’s proposed amendment which can not be pleaded by way of reply.
c) Amendment or a reply are both for the same purpose i.e. to bring out all issues relevant to the case for the just determination of the case by the court.
3. The learned trial judge erred in law when he ruled as follows:-
“Having considered the application of the Plaintiff for the proposed amendments I hereby exercise my discretion in favour of amendment sought in paragraphs 14 and 15 as errors and slips which will not endanger justice on the part of the Respondent but the amendments sought in paragraph 8, 23,24,25,26 and 27 are disallowed for to allow then will endanger justice on the part of the Defendant/Respondent.
PARTICULARS OF ERROR:
A. The Defendant/Respondent did not file a counter affidavit to specifically show what injustice he would suffer if the amendment sought is granted; the court can not on its own conclude that the Respondent will suffer injustice if the application is granted.
B. The Plaintiff/Appellant is yet to close his case and the defence has not open (sic) his case he has the right to file a consequential amendment wherein he can reply to the amendments and can also cross examine the Plaintiff/Appellant’s witnesses on the new facts.
C. Under the High Court (Civil Procedure) Rule 1988 and decided authorities a party can amend his pleadings at any time subject to well known conditions which conditions do not reply in this case, for instance the amendment sought has not alter the character of this case.
D. The authorities relied upon by the Defendant/Respondent and the learned trial judge are not relevant to this case and ought not to be relied upon.
3. Further grounds of Appeal would be filed on receipt of records of proceedings.”
Briefs were then filed and exchanged by parties to this appeal in keeping the rules and practice applicable in this court. In his Brief of argument, the appellant distilled two issues for the determination of the appeal. The two formulated issues are as follows:-
1. Whether the Respondent could oppose the application for amendment without filing a counter affidavit wherein the issues raised in opposition were matters of facts and not law (Ground 3)
2. Whether the learned trial judge was right in refusing the amendments sought? (Grounds 1 and 2).
Having been served with Appellant’s Brief, the respondent also filed his Brief of argument dated 18th November 2009 and filed the same day.
Therein, a solitary issue was formulated for the determination of the appeal.
The issue which was raised simply reads as follow:-
“Whether or not there is a competent appeal before this court having failed to obtained leave of either the trial court or of this court before the appeal”.
Before I delve into the consideration of the appeal, My Lords, permit me to say, that on rummaging through the court file, I notice that the respondent herein had on 29/8/2008 filed a Notice of Preliminary Objection also dated the same 29/8/2008 challenging the competence of the appeal. Then on when the appeal was stated for hearing on the 9th March, 2011 the respondent did not appear in court to argue both his Preliminary Objection and the appeal proper despite being served with hearing notice.
It was sequel to that, that Mr. O. R. Edionweme of learned counsel for the appellant urged this court to discountenance or disregard the Preliminary Objection and strike it out as having been waived and abandoned. I shall therefore first of all deal with the competence of the objection which incidently was the only issue raised in the respondent’s brief of argument for the determination of the appeal and it was centered on alleged failure on the part respondent to first seek and obtain leave before he filed the interlocutory appeal which certainly touches on the competence of the appeal.
By virtue of the provisions of Order 3 Rule 15 (1) of the Court of Appeal Rules 2007, a respondent who is desirous of relying on a preliminary objection challenging competence of an appeal, must give the appellant three days notice thereof before the hearing of the appeal, wherein he shall set out the grounds of his objection and shall also filed a notice of such objection in court. After filing such notice, at the hearing of the appeal, the respondent MUST seek leave or permission of the court to move such Notice of Objection even before the hearing the appeal starts.
Now even if the Notice of Preliminary Objection has been argued in the respondent’s brief, such respondent must also move the court at the oral hearing of the appeal for the relief he is seeking on the Objection. Thus, while Notice of Objection may be given in the brief, still that does not obviate him from the need to move the court at the oral hearing for the relief/prayer sought. See Nsirim vs. Nsirim (1990) 3 NLWR (Pt 138) 285; Ononchie vs. Orlogwu (2006) 6 NWLR (975) 65; Oforike vs Madueke (2003) 5 NWLR (Pt 812) 166; Odu vs Agbor – Hemeson (2003) 1 NWLR (Pt 802) 624. Failure of the respondent’s counsel to argue the preliminary objection before going to the oral argument on the main appeal, would tantamount to abandoning or waiving such Preliminary Objection because the court can not fish out and distinguish which arguments are good enough for the preliminary objection and which are for the main appeal, since the purpose of preliminary objection to an appeal is to move the court to see reason why the appeal ought not be entertained in the first place. In the instant case, the respondent’s counsel did not appear in court at all, despite the service on him to so appear for the hearing of the appeal on 9th March, 2011 not to talk of orally arguing the preliminary objection or even the appeal. Therefore, the respondent’s failure to orally argue the preliminary objection in court, the objection is deemed waived and abandoned by him and is accordingly struck out. See Nsirim vs. Nsirim (supra), Oforkere vs. Madueke (2003) 5 NWLR (Pt.812) 166; Odu vs. Agbor Hemeson (2003) 1 NWLR (pt 802) 624 IBWA v. Sasegbon (2007) 16 NWLR (Pt.1059) 195.At the hearing of this appeal, the learned counsel for the appellant observed that the respondent’s brief of argument was filed out of time and without seeking for and obtaining extension of time to file it out side the period allowed by law. As I said earlier, the respondent’s brief of argument was dated and filed on 18/11/2009, whereas the appellant’s brief of argument dated 31/3/2005 was filed on 7th April, 2005. That is to say, while the appellant’s brief was filed on 7th April, 2005, the respondent’s Notice of Preliminary Objection was filed on 29/18/2008, whereas the respondent’s brief of argument was filed on 18th November, 2009. In other words, more than three years, from the time the appellant’s brief of argument was served on the respondent. It is trite law, that a court can and is entitled to refer to the records of before it, in the course of its proceedings. In fact, the Supreme Court in the case of Alhaji Nuhu vs Alhaji Ogele (2003) 12 SCNJ 158 had this to say at page 178 paragraph 3:-
“A court is entitled to look at the record in its possession and make use of the information therein.
West Africa Provincial Insurance Co. Ltd vs. Nigeria Tobacco Co Ltd (1937) 2 NWLR (Pt 56) 299 at 306.
In the case of Texaco Panama Inc vs. Shell PDCN Ltd (2002) 5 NWLR (Pt 759) 209 at 234, Kalgo JSC opined thus:
“Furthermore an Appeal Court is fully and correctly entitled to look or refer to the record of appeal before it in consideration of any matter before it”
This was also held in the case of Fundunk Engineering Ltd vs. M.C. Authur (1995) 4 NWLR (Pt. 392) 640 at 652. Also See Jikantoro & 60 ors vs. Dantoro & 6 Ors (2004) 5 SCNJ 152 at 177 and Orugbo & Anor vs. Pruleva Una & 10 Ors (2002) 9 SCNJ 12 at 29 or (2002) 16 NWLR (Pt 792) 175 at 206-207.Now having rummaged through the Record of Appeal court’s file in this case, I have been unable to see or find anywhere, where the respondent herein applied for and was granted extension of time within which to file and serve Respondent’s brief of argument out of time or better still where the respondent’s brief of argument was ever deemed to have been filed at any given date. It is therefore my conviction, that the respondent had never sought and obtained leave or extension of time to file the said brief out of time. In the absence of any such order of this court in that regard, the respondent’s brief can be said to have not been regularized and as such is not a proper or valid process before us and therefore ought to be and is accordingly discarded. It is moreorless as if it had never been filed before the court at all.
Then next, this court at the hearing of the appeal still referred to the Record of Appeal to confirm if the appellant had sought and obtained its leave or that of the lower court before filing his interlocutory appeal. This
is necessary because by the provisions of Section 241 of the 1999 Constitution, an appeal against interlocutory decision or order of the High Court is only as of right where the appeal raises a question of law alone.
But where the ground or grounds of appeal raises or raise questions of facts or mixed law and facts and facts, it is incumbent upon an appellant to first seek and obtain leave of court by virtue of the provisions of Section 242 of the Constitution of the Federal Republic of Nigeria 1999. See Alamieyesagha vs. CJN (2005) 1 NWLR (Pt 106) 60; Leaders & Co. Ltd vs. Kusamotu (2004) 4 NWLR (Pt 804) 319. In his response however, the learned counsel for the appellant argued that his grounds of appeal were of law and not facts or mixed law and fact therefore he did not require seeking prior any leave of court before appealing.
Now, it is well settled preposition of law, that the mere fact that an appellant describes or calls a ground of appeal as of law does not necessarily render it to be so. In fact, it is not mere labeling of a ground of appeal by counsel as one of law that will determine whether it is actually one of law, or mixed law and fact or of fact simpliciter. Admittedly, there is usually very slight difference between ground of law, mixed law and fact and purely of fact. However that does not convert ground of mixed law and fact and one of fact to a ground of law. See Ejiwunmi vs. Costain (WA) Plc (1998) 12 NWLR (Pt 576) 149, Lurnlf vs. UBA Ltd (1996) 6 NWLR (Pt 457) 632; Okeke vs. Petmag (Nig) Ltd (2005) 4 NWLR (Pt 915) 245; Obaloymbo vs. Oshaloba (1996) 5 NWLR (Pt 450) 531.
I am not unaware of the fact that in determining whether a ground of appeal raises a question of law alone or of facts or of mixed law and facts, the court is expected to examine the ground of appeal with its particulars so as to ascertain whether the ground reveals a misunderstanding of the law by the lower court or misapplication of the law to the facts already proved or admitted in which case it would be a question of law. But where the ground is such that would require questioning the evaluation of facts by the lower court before the application of the law, then that would amount to question of mixed law and fact. But a ground of law which simply raises issue of fact and which need to be determined either way, is a ground of fact. See Olarewaju vs. Ogunleye (1997) 2 NWLR (pt 485) 12; Sham vs. Afribank (Nig) Plc (2000) 10-11 SCI; Magoro vs. Garbe (2001) 2 WRNI at 4; Leders & Co vs. Kusamotu (supra); Onifade vs. Olajwola (1990) 7 NWLR (pt 161) 130; Ibiyeye vs. Fujule (2006) 3 NWLR (Pt 968) 640.
The three grounds of appeal and their particulars have been duly considered by me and I am fully satisfied that all of them are grounds of law which do not require the appellant to seek and obtain prior leave of court before filing same under Section 241 of the 1999 Constitution. The appeal is therefore competent and will therefore be considered by me on its merit even though on the Appellant’s brief alone having earlier discarded and struck out the Respondent’s brief for the reason proffer on earlier. While treating the appeal, I shall consider the two issues proposed by the appellant together.
The learned counsel for the appellant submitted that they filed a motion at the lower court for amendment of their Statement of Claim which said application was supported by a 7 paragraph affidavit. The respondent did not file any counter affidavit to the application at the lower court but merely chose to reply on points of law in opposition of the application even though the issues the defendant/respondent raised were issues of facts and not of law. He said the defendant inter alia, submitted that the plaintiffs/appellant’s application was brought in bad faith and was also meant to overreach him or meant to prejudice his case. The learned appellant’s counsel argued at the lower court that issue of bad faith, prejudice or embarrassment are issues of facts and not of law, adding that
in such circumstance, the defendant ought to have filed a counter affidavit in opposition.
The learned counsel for the appellant further submitted that by virtue of the provisions of Order 26 Rules 2 and 3 of the High Court (Civil Procedure) Rules 1988 of Bendel State (now applicable to Edo State) pleadings can be amended at any time or at any stage of the proceedings before the court in order to enable the trial court to determine the real question in controversy between the parties. He cited the case of Ndiwe vs. Nwaebo (2001) FWLR (Pt 51) 1909 where conditions for the grant of amendment were stated; See also Oriekewe vs. Orijeekwe (2001) FWLR (Pt 38) 1181 at 1187 R 11. He also submitted that the defendant respondent had failed to show how the amendment will be prejudicial to him or that it was brought in bad faith or aimed at embarassing him.
With regard to trial court’s refusal to grant amendment of the plaintiff s paragraphs 8,14,15, 23, 24, 25, 26 and 27 of the Statement of Claim while allowing the amendment of paragraphs 14 and 15 of same on the ground that they anticipate and preempt the defence, the learned appellant’s counsel argued that such proposed amendments are on facts which they intend to lead evidence on and therefore the refusal by the court to grant leave to make such amendment would lead to a situation where they will be unable to properly prove their case. He also submitted that the trial judge did not exercise his discretion judicially and judiciously by refusing his application to amend his Statement of Claim since the respondent did not place any material before the court upon which to excise any discretion in his favour while the facts he placed before the court call for exercise of such discretion in his (appellant’s) favour since the facts he presented in the purposed amendment were relevant to the entire suit and did not create a new suit. He finally urged me to hold that the learned trial judge was wrong in refusing the amendment and also urged this court to grant the application for amendment of his statement of claim he sought before the lower court.
By the provisions of Order 26 Rules (1,) (2) (and 3) of the Bendel State High Court (Civil Procedure) Rules 1988, a judge of High Court can allow either party to a suit before him to amend his/fits pleadings at any stage of the proceedings or endorsement in such manner and on such terms as may be just and such amendment shall be made as may be necessary for the purpose of determination of the real question or issues in controversy between the parties See Ojah vs. Ogbowni (1976) 1 All NLR 346; Egwa v. Egwa (2007) 1 NWLR (pt 1014); Bankole vs. Dada (2003) 11 NWLR (Pt 830) 174. In fact the purposes of amending pleading are basically to cure all the discernible defects in the pleading sought to be amended so as to put the proposed amendment in line with the evidence already or about to be adduced and to settle the real issue in controversy between the parties in a suit with the sole aim of doing substantial justice between them. Thus, before allowing such proposed amendment, the trial court must ensure that the grant of such amendment will not cause unnecessary difficulties such as causing the adverse party to apply to amend his own processes request of further and better particulars, reopening the case or recalling and calling further evidence.
It is instructive to note that over the years, the superior courts have laid down some guiding principles which courts should follow or consider in determining the question whether to grant or refuse application for amendment of pleadings. Some of the consideration to be made include the followings:-
(a) the attitudes of the parties
(b) the nature of the amendment sought in relation to the suit.
(c) the question in controversy
(d) the time or the stage at which the application for amendment was brought during the proceedings
(e) the materiality of the amendment sought.
And after considering the above factors the court should however out rightly refuse to grant an application for amendment, where such amendment if granted:-
(i) will entail real injustice or surprise or cause embarassment to the other party; or
(ii) where the applicant is acting male fide; or
(iii) where the applicant has done some injury to the respondent which can not be compensated with costs or otherwise.In the instant appeal, it is pertinent to remember that the appellant as plaintiff at the lower court, filed the motion for the amendment of his pleading just after he called three witnesses to testify in the case and when arguing his application at the court, the learned appellant’s counsel informed the court that he sought for the leave to amend his statement to put their case correctly before the court, adding that such will not be prejudicial or embarassing to the defendant/respondent. As I posited above, the defendant did not file any counter affidavit at the lower court but merely replied I on point of law. The submission of the learned counsel for the defendant in opposition to the application for amendment of the statement of claim is that it was brought in bad faith which in my view can only be done or expatiated through affidavit evidence in a counter affidavit, since it is a question or issue of fact and not of law and no counter affidavit was filed by the defendant in that regard. Also when he said that such proposed amendment will be prejudicial to his case or would overreach his case, he should state in what manner his case would be overreached or prejudiced. This also is matter of fact to be shown by means of an affidavit evidence which was not so filed in this instant case.
Similarly, the issue of delay the amendment might cause was not shown or advanced by the defendant. The learned judge in his ruling however had this to say on page 37 of the Record of appeal:-
“I wonder then what would be the purpose of the statement of defence if a plaintiff is allowed to anticipate agree or preempt the defendant in his statement of claim.
If this type of situation is allowed it is my view that the defendant will not only be enrbarrassed but seriously prejudiced by such an amendment and which definitely will not be in the interest of parties”.
It is apt to note, that the defendant himself did not put any material before the court by way of filing counter affidavit to show the alleged prejudice, embarrassment or bad faith the amendment if allowed, will cause him. I think the trial court must have based the opinion it raised supra on some materials before it adduced by the defendant or respondent in this case and as such it should not have made a case for the respondent. I have carefully perused the nature of the proposed amendment sought. If the learned trial judge had allowed the amendment to be made the defendant still had the liberty to amend his statement of defence and I also do not think much delay would be occasioned, since the proceedings is still at a tender stage after all only three witnesses were heard and the plaintiff had not closed its case, not to talk of the defendant opening his case. I am fully convinced that if allowed the amendment will not entail injustice or surprise or cause embarrassment for the defence also. The application by the applicant/plaintiff was also not made mala fide or meant to cause some injury to him, which can not be compensated with costs.
Thus, I am fully aware of the fact that this court has power under its rules to order amendment of pleading such as the lower court can do. See Iweka vs. SCOA Nigeria Ltd (2000) 3 SC 21. I am equally mindful and apprehensive of the fact that such powers should be granted sparingly and can only grant leave to amend pleadings only in a situation where such amendment is aimed at bringing the pleadings in line with the evidence so far or already led. In the instant case, I am certain that from the surrounding circumstances of this case the proposed amendment of the at Statement of Claim was to make the pleadings or claim in accord with the evidence on the record and was also targeted at settling the real issues in controversy between the parties herein. It is also not introducing new issues to the evidence so far led by the plaintiff/appellant.
Thus, on the whole I am of the view that the appeal is meritorious and ought to be allowed. It therefore succeeds and is accordingly allowed by me. The ruling of the learned trial judge refusing the plaintiff’s/appellant’s application for amendment of his Statement of Claim is hereby set aside. In its stead, the application to amend the Statement of Claim by the plaintiff (now appellant) is accordingly granted as sought. No order as to costs.
CHIOMA NWOSU-IHEME, J.C.A.: My Lord AMIRU SANUSI, JCA, has admirably dealt with the issues in this appeal. I agree with his reasoning and conclusions which are in harmony with mine. I agree that for all the reasons given in the lead Judgment, the appeal should be allowed.
I therefore join in allowing the appeal in the terms set out therein.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I have read the draft of the judgement just delivered by my learned brother, Amiru Sanusi, JCA. I am in agreement with the conclusion reached that this appeal is meritorious. I therefore equally allow this appeal. I abide by the consequential orders made in the said lead judgement.
Appearances
O.R. Edionweme Esq.For Appellant
AND
Respondent absentFor Respondent
