DR. ADEBAYO ADENIRAN v. ALHAJI ALIMI TOGUNDE
(2011)LCN/4387(CA)
In The Court of Appeal of Nigeria
On Monday, the 21st day of March, 2011
CA/I/79/2005
RATIO
AMENDMENT OF COURT PROCESS : WHAT IS THE AIM OF AMENDING COURT PROCESS ;WHEN WILL THE COURT REFUSE TO GRANT LEAVE TO AMEND A PROCESS
The aim of an amendment is usually to prevent the manifest justice of a cause from being defeated. Unless where it is shown that the application to amend is made malafide or the proposed amendment would cause unnecessary delay or will in any way unfairly prejudice the other and or opposite party, or where the amendment sought is quite irrelevant or useless or would only and merely raise technical issues that leave to amend may be refused by court.
PER SIDI DAUDA BAGE, J.C.A.
APPLICATION FOR AMENDMENT :WHETHER AN APPLICATION FOR AMENDMENT MAY BE GRANTED AT ANY STAGE OF THE PROCEEDING
The law is that amendment may be granted any stage of the trial even on appeal. See: – The National Assembly v. The President of the Federal Republic of Nigeria & Ors. (2003) 41 WRN 94; Oladiti v. Sungas Co. Ltd. (1994) 1 NWLR (pt.321) 433; Globe Fishing Industris Ltd v. Chief Folarin Coker (1990) 7 NWLR (Pt.162) 265; Taoridi A. Sufianu v. Wahab Abass Animashaun (2000) 14 NWLR (pt.688) 650; Mobil Producing Nigeria Unlimited v. Chief S. Monokpo & Ors (2003) 18 NWLR (Pt.852) 346; SPDC Nig. Ltd. v. Kwameh Ambah (1999) 3 NWLR (pt.593) 1., See also Totty v. Udofia (supra); Alstom S.Vs. Saraki (sura) Oguntimehin v. Gubere (supra). PER SIDI DAUDA BAGE, J.C.A.
APPLICATION FOR AMENDMENT :WHETHER THE COURT CAN SET A TIME LIMIT TO TENDER APPLICATION TO AMEND COURT PROCESS
The court does not set a time limit to do justice and in the same vein it does not or perhaps also cannot set a grant to an amendment designed to achieve justice between the parties. See Williams Rainy v. Alexander Bravo (1872) lR 4 PCA. 287, the application to amend was made when the judge was reading his judgment. It was refused by the trial judge but it was ultimately granted by the Privy council. PER SIDI DAUDA BAGE, J.C.A.
AMENDMENT OF COURT PROCESS: WHAT IS THE MAIN CONCERN OF THE COURT IN GRANTING OR REFUSING TO GRANT AN AMENDMENT
The main concern of the court in granting or refusing to grant an amendment is the interest of justice. An amendment ought to be granted if thereby justice is done between the contending parties. see: Chief Adedapo Adekeye & anor v. Chief o.B. Akin Olugbade (1987) 6 SC 268 at pp. 280-281 and 285-286; Agbabiaka v. Mcgregor (1974) SC 133; Uzoukwu v. Egbeomu (1991) 1 NWLR (Pt.200) 708. PER SIDI DAUDA BAGE, J.C.A.
JUSTICES:
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
DR. ADEBAYO ADENIRAN – Appellant(s)
AND
ALHAJI ALIMI TOGUNDE
For himself and on behalf of the Togunde Family. – Respondent(s)
SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This appeal arose from an interlocutory application filed by the Defendant /Applicant now Appellant before this court, by way of a Motion of Notice dated the 8th of December, 2003. The Appellant, then Defendant/Applicant had prayed before Abimbola J. in suit No. 1/217/92 sitting at Ibadan in the Ibadan Judicial Division of oyo state High court.
MOTION OF NOTICE
TAKE NOTICE that this Honourable Court will be moved on the day of 2003 at the hour of 9′ Oclock in the forenoon or soon thereafter as counsel may be heard on behalf of the Defendant/Applicants for the followings:
(i) An order amending the statement of defence in terms of the schedule of Amendment attached
herewith.
(ii) An Order extending the time within which the Defendants may file his Counter Claim.
(iii) Such further or other orders as this Court shall deem fit to make in the circumstances.
Dated this 8th day of December, 2003.
The background facts before filing this Application is that, the plaintiff at the Ibadan High court claimed against the Defendant that the plaintiff is entitled to the Statutory/customary Right of occupancy of the parcel of land situate lying and being at Adekola Village, via Olode off Ife Road Ibadan, special and general damages and perpetual injunction restraining the Defendant from further acts of trespass.
Pleadings were filed delivered and exchanged by the parties and issues were joined. Five (5) witnesses gave evidence on behalf of the Plaintiff. The plaintiff gave evidence in chief and cross-Examination was in progress when the Defendant prayed the Lower court for leave to inter aria amend the statement of defence in terms of the scheduled of amendment attached to his application.
The plaintiff did not fire counter Affidavit but opposed the application on points of Law. The Learned Trial Judge in his ruling delivered on 7th January, 2004 dismissed the said application.
Aggrieved by the ruling of the Trial court, the Defendant sought and obtained leave to appear against the interlocutory decision and hence this appeal.
The Appellant fired a Notice of Appear dated the 16th day of January, 2004 which contains three (3) Grounds of Appear.
From the said 3 grounds of Appeal, the Appellant formulated the following three (3) issues for the determination of this court viz:-
(1) Whether from the, pleadings and the stage of evidence before the Court, the learned Trial Judge was justified in refusing the Defendant/Appellant application for Amendment of his Statement of Defence.
(2) Whether the Learned Trial Judge was right in holding that the plaintiff need not controvert the deposition in the defendant affidavit in support of motion dated 8th May, 2003.-
(3) Whether the Learned Trial Judge exercise or discretionary power did not cause a miscarriage of justice to the Plaintiff.
The Respondent proposed one sole is issue for the determination of the appeal as follows:-
“Whether in view of the materials before the court and the State of the law, the Lower court was right in refusing the Appellants Application for leave to amend the Statement of Defence at that stage of the proceedings.”
I am guided by the issues as formulated by the Appellant. The Appellant argued issues No.1 & 2 together. Learned counsel to the Appellant submitted that it is trite that an amendment may be granted at any stage of trial even on appear and that the amendment sought is very relevant to the defence of this suit and it is needed for proper cross-Examination of the plaintiff who was still being Cross-Examined at the time of bringing the Application order 26 Rule 1 and 2 of the Oyo State (Civil procedure) Rules 1988.
Learned Counsel further submitted that it is clear from the above provision that an amendment may be granted at any stage of the trial even on appeal. See Totty v. Udofia (1966 – 1967) 10 ENLR 45; Alstom v. Saraki (2000) FWLR (Pt.28) 2267 at 2281-2282; Oguntimehin Vs. Gubere (1964)All NLR 176; Cropper Vs. Smith (1884) 26 C.H.D.710.
Learned Counsel further submitted that any fact that would be necessary and germane to the determination of the Plaintiff or Defendant’s title to the land in dispute should be allowed by the Court to form the basis for the Defendants defence. In respect of this Application facts stated in the schedule of Amendment will enable the learned trial Judge to completely and effectively determine the issues in controversy’ See: – Agbabiaka Vs. McAregor (1974) SC 133; Alstom S.A. Vs. Saraki (Supra).
Learned Counsel further submitted that the amendment sought is germane for further Cross-Examination of the Plaintiff himself who is still in the witness box and giving evidence as all actions taken by him in relation to the Land in dispute in the Schedule of Amendment relates to actions taken by the Respondent as regards the Land in dispute.
Learned Counsel further submitted that since the Plaintiff gives evidence of traditional history, he owes a duty to establish a credible traditional history and any admission on his part is fatal. See: – Dagaci of Dere Vs. Dagaci of Ebwa (2006) All FWLR (Pt.306) 786.
Learned Counsel further submitted that the Defendant/Appellant in their paragraph 2,3,4,5 and 6 of the Affidavit in support of the said Motion contained at page 13 of the records clearly stated that the reasons for the omission or none inclusion of these facts is due to the inadvertence or mistake of the former solicitors that handled the defence and settled the Defendants Statement of Defence. This vital deposition was not controverted but unfortunately, the Learned Trial Judge failed to advert his mind to the pletorial of authorities that averment in an affidavit not denied nor controverted is deemed admitted. See: Akpabuyo Local Government Vs. Dim (2003) FWLR (Pt t87) 825 at 839. Uzoukwu Vs. Egbeomu (7997) NWLR (Pt 200) 708.
Learned counsel further submitted that the plaintiff counsel in opposing the said application relied on facts which are not supported by any counter-affidavit but which unfortunately were accepted by the lower court who dismissed the said application, when the duty of the Trial Judge is to act on unchallenged facts deposed in affidavit. See: – Osawe Vs. Osawe (2003) FWLR (Pt.183) 97 at 105; Usikare Vs. Itsekiri Communal land Trustees (1991) 2 LRCN 541.
Learned counsel submitted further that the argument of the Learned senior counsel no matter how brilliant it seems once it is not contained in a counter-affidavit and is not arguments on point of Law goes to no issue. See: – Akpabuyo Local Government Vs. Dim (supra) at page 839.
Learned counsel to Respondent in reply to these arguments proffered by the Learned Counsel to the Appellant submitted that the Law is that based on the rules of Court, an application to amend pleadings would only be allowed if it is necessary for the purpose of determining the real questions in controversy between the parties’ An amendment would be rightly refused if it would cause unnecessary delay or if the amendment is quite irrelevant or useless or would merely raised technical issues. See:- Order 26 Rule 1 and 2 High Court (Civil procedure) Rules, Oyo State 1988 and; UBN Plc v. Dafiaga (2000) 1 NWLR (Pt.640) 175 at 198E; Awachie v. Chime (1990) 5 NWLR (Pt.150) 302 at 308E; George & Ors v. Dominion Flour Mills Ltd (1963) 1 All NLR 71.
Learned counsel submitted further that it is clear from the provisions of order 26 Rules 1 & 2 of the High Court (Civil Procedure)Rules, oyo State 1988 that the Courts discretionary power is not absolute. The main consideration ought to be substantial justice in the particular circumstances of each case. The use of the courts discretionary power would be considered in proper if it defects the objectives of substantial justice. see: Nwafornso v Taibu (1992) 1 NWLR (pt.219) 619.
Learned counsel further submitted that in view of the state of the Law, it is crystal clear that the Lower court gave a dispassionate consideration to the application for leave to amend and exercised its discretion judicially and judiciously based on the materials before the Court.
Learned counsel further submitted that the contention and the authorities cited by the Appellant in paragraphs 3.3, 3.4, 3.5, 4.0, 4.2, 4.3, 4.4, 5.4, 6.4, 7.4 & 8 and 4.9. of the Brief of Argument that the Lower court ought to have granted the application for Leave to amend is misconceived unsupportable, and ought to be rejected by this court. The contention and authorities cited by the Appellant in paragraphs 5.5, 5.9, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 6.8, 6.9, 7.0, and 7.1. of the Brief of Argument ought to be rejected.
Learned counsel submitted that it is pertinent to point out that this case was filed before the Lower court in 1992 and the parties are still on an interlocutory appeal, 16 years after, on an issue which could be taken at the end of the case together with any other Ground or Grounds of Appeal.
This court is urge to dismiss the interlocutory appeal to enable the Lower Court complete the matter expeditiously’ See: – Araka v. Egbue (2003) 17 NWLR (Pt.848) 1 at 22, H-23 B.
On the part of the Court, the Law that governs the Appellants Application at the Lower Court is Order 26 Rules 1 and 2 of the Oyo State (Civil Procedure) Rules 1988 wherein it provides:
1. “The Court or a Judge in Chambers may at any time and on such terms as to cost or otherwise as the Court or Judge may think just, amend any defect or error on any proceedings and all necessary amendment shall be made for determining the, real questions in issue raised by or depending on the Proceeding.”
2. “The Court or Judge in Chambers may at any stage of the proceedings allow either part to alter
or amend his endorsement or pleadings in such manner and in such terms as may be just, and all such amendment shall be made as may be necessary for the purpose of determining the real question in controversy between the parties”.
The short history of the Appellant’s Application at the Lower Court was that pleadings were filed delivered and exchanged by the parties and the issues joined. 5 witnesses gave evidence on behalf of the plaintiff (Respondent in this court) the respondent gave evidence as Pw 6 in the lower court. He finished the evidence in chief and cross-examination was in progress when the defendant prayed the lower court for leave to inter alia amend the statement of defence in terms of the schedule of amendment attached to his application. The appellant brought his application by way of a motion on Notice dated the 8th of December, 2003.
He also accompanied the said motion with a 7 paragraph affidavit and a schedule of amendment, by adding immediately after paragraph 38, the following paragraphs.
A
39:- The defendant avers that the plaintiff does not represent Togunde family but rather represents a group of land grabbers/speculators who go about taking and selling people’s land by force.
40:- The plaintiff in order to forcefully take possession of the defendant’s land for purpose of sale made several attempts in conjunction with his group of land grabbers to enter upon the land.
41:- The attempts were rebuffed by Chief Adegboyega Adeagbo a strong land speculator on behalf of the defendants.
42:- The said group of land grabbers therefore invited the said Chief Adeagbo to several meetings in order to persuade him to support their unlawful against the defendants.
43:- The said Chief Adeagbo sought and obtained the 1st defendant’s permission to so attend where upon the 1st defendant gave him a tape recorder in order to record their discussions.
44:- The said meetings were held at Akintola village, New Gbagi area Ibadan on 20th and 30th 1992 and was attended by the plaintiff Raufu Alabi, Yinusa Ode, Raufu Togunde, Tunde Ajala, Chief Adeagbo, Olayinka Ladilepo and Lati Alatise. No member of the plaintiff’s family attended the meetings.
45:- At the end of the said meetings, the tapes were given to the in defendant who listened to same and wrote out verbatim the said discussion and later translated same into English. The defendant will rely on the tapes and the write-ups.
46:- The defendant avers that the plaintiff admitted at those meetings that the defendants have land in the area in dispute but held the meeting in order to bribe the said Chief Adeagbo to withdraw his support for me defendant,
47:- The plaintiff at the said meeting affirmed that he did not intend to take all the defendants land which he said extended even to the New Ife road.
4B:- The defendants also recorded the discussion, held at the New Gbagi police station between the police and the defendant, the plaintiff and his Co-land grabbers after the defendant had reported to the police that the plaintiff and his group were exploiting granite on the land in dispute. He wrote out the speeches both in English and in Yoruba. The defendant shall join in the said Tapes and the write-ups at the hearing.
B. Renumbering paragraphs 39, 40 and 41 Dated this 8th day of December, 2003.
It is clear the amendment sought for by the appellant at the lower court was to introduce additional paragraphs to his pleading, in consonance with the provision of order 26 Rule 2 of the Oyo State (civil Procedure) Rules 1988. The Respondent as plaintiff then objected to grant of the amendment sought by the Appellant. The Respondent argued in that court, that the grant of the application is discretionary by the court.
However, the courts discretionary power is not absolute. The main consideration ought to be substantial justice in the particular circumstances of each case. The use of the courts discretionary power would be considered improper if it defeats the objective of substantial justice.
Thus the lower court gave consideration to the appetent’s application for leave to amend and exercised its discretion judicially and judiciously based on the materials before the court.
In refusing the application learned trial judge at page 35 of the record, paragraph 10 stated as follows:-
“In this application having in mind the stage of the proceeding the defendant must plead before the court all the materials stated earlier and having failed to do that it is my ruling that the application be refused. To allow a counter claim when pleadings are deemed closed when trial had commenced and the plaintiff is at the concluding stage of his case, no doubt enormous delay would not only be occasioned, it would entail enormous injustice to the plaintiff who would be, force to/as it were apply to amend his pleading to include a defence to the counter claim, recall witness already called or even new facts may be introduced.”
On a very careful examination of the reason why the Appellant brought his application at the lower court which was saddle with the determination of Land ownership by the two contending parties was that, the applicant deposed to the fact that the Respondent (plaintiff) at the lower court does not represent the Togunde family but only represent a group of land grabbers/speculator who go about selling other people’s land. This is in the opinion of this court a very serious fact introduced by the Appellant as applicant.The aim of an amendment is usually to prevent the manifest justice of a cause from being defeated. Unless where it is shown that the application to amend is made malafide or the proposed amendment would cause unnecessary delay or will in any way unfairly prejudice the other and or opposite party, or where the amendment sought is quite irrelevant or useless or would only and merely raise technical issues that leave to amend may be refused by court.
From the decision of the trial court, the above reasons are lacking. The court rather was bothered about the stage of the proceedings when the application was brought this cannot be correct.
The law is that amendment may be granted any stage of the trial even on appeal. See: – The National Assembly v. The President of the Federal Republic of Nigeria & Ors. (2003) 41 WRN 94; Oladiti v. Sungas Co. Ltd. (1994) 1 NWLR (pt.321) 433; Globe Fishing Industris Ltd v. Chief Folarin Coker (1990) 7 NWLR (Pt.162) 265; Taoridi A. Sufianu v. Wahab Abass Animashaun (2000) 14 NWLR (pt.688) 650; Mobil Producing Nigeria Unlimited v. Chief S. Monokpo & Ors (2003) 18 NWLR (Pt.852) 346; SPDC Nig. Ltd. v. Kwameh Ambah (1999) 3 NWLR (pt.593) 1., See also Totty v. Udofia (supra); Alstom S.Vs. Saraki (sura) Oguntimehin v. Gubere (supra).
The trial court was therefore wrong when it gave consideration to the stage of the proceeding making it a factor in its refusal to allow the amendment sought for by the appellant who was the applicant before it. order 26 Rule 2 of the Oyo state (civil procedure) Rules 1988 provides that the court or judge in chambers may at any stage of proceedings allow either part to alter or amend his endorsement or pleadings….”
“Any stage” is the binding force.
Another area of concern is what the trial judge stated in his judgment at page 35 paragraph 15: –
“…To a counter claim when pleadings are deemed closed when trial had commenced and the plaintiff is at the concluding stage of his case, no doubt enormous delay would not only be occasioned it would entail enormous injustice to the plaintiff…”
From the above clearly the court had set a time limit to do justice which is again wrong. The law is already settled that the court should allow amendments that are required for the purpose of using already available evidence. The Appellant from the record before this court had sought for his application at this stage, when the Respondent (pw6) at the lower court was being gross-examined was in progress which the law allows’ what is more is that the law allows amendment to be sought for using the findings of the trial court. The court does not set a time limit to do justice and in the same vein it does not or perhaps also cannot set a grant to an amendment designed to achieve justice between the parties. See Williams Rainy v. Alexander Bravo (1872) lR 4 PCA. 287, the application to amend was made when the judge was reading his judgment. It was refused by the trial judge but it was ultimately granted by the Privy council. The main concern of the court in granting or refusing to grant an amendment is the interest of justice. An amendment ought to be granted if thereby justice is done between the contending parties. see: Chief Adedapo Adekeye & anor v. Chief o.B. Akin Olugbade (1987) 6 SC 268 at pp. 280-281 and 285-286; Agbabiaka v. Mcgregor (1974) SC 133; Uzoukwu v. Egbeomu (1991) 1 NWLR (Pt.200) 708.
On the whore therefore from the ruling of the court, the interest of one party was considered and not for the-two contending parties. In the interest of justice this court did not find any difficulty in resolving issue 1 in favour of the Appellant. His application for amendment was meritorious and the lower court ought to have granted same.
Since this court has resolved issue 1 in favour of the Appellant to the effect that his application for amendment sought was meritorious before an amendment designed to achieve justice between the parties.
The lower court and it ought to have been granted by that court, issues 2 and 3 of the appellants brief of argument becomes mere academic exercise.
In the final analysis the appeal succeeds, and it is hereby allowed. The ruling of Abimbola J. in suit No. 1/217/92 delivered on the 7th of January, 2004, at the High Court of Oyo State holden at Ibadan, in the Ibadan Judicial Division is set aside by this court.
It is further ordered that the Appellant’s application for amendment must be allowed by the lower court, before proceeding with the hearing of the main Suit before it. No cost is awarded.
MODUPE FASANMI, JCA: I read in advance the judgment delivered by my learned brother S.D. Bage J.C.A.
I agree entirely with the reasoning and conclusion reached therein.
The appeal succeeds and it is also allowed by me. i abide by all consequential orders made in the judgment including order as to costs.
JOSEPH SHAGBAOR IKYEGH J.C.A.: I Perused in advance the judgment Prepared by my Bage, J.C.A.’, with which I am in complete agreement. The court should not set an arbitrary time limit for dispensing justice. Applications for amendment of Pleadings or other Processes of the court should be viewed and treated liberally, with the aim of attaining justice. The Panacea for such applications ought to lie in costs. If brought at a later stage of the proceedings heavy costs may be awarded to compensate the side delayed by the amendment.
Though lime is an important factor in the administration of justice, rushed proceedings may maul or crush justice and render it justice denied.
The sentiment of the court below to dispense speedy justice is appreciated, having regard to the evaluation of the performance of judicial officers on quarterly basis by the National judicial Council. But the speed or pace of the litigation must take into consideration the entrenched section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999. on fair hearing of civil matters within a reasonable or moderate time. The watchword is – hasten slowly’ See Idakwo v. Ejiga (2002) 7 SCNI 211.
The application for amendment of pleadings which brought about the present appeal was not shown to have been made mala-fide. vexatious or intended to over-reach the respondents by changing or materially altering the character of the dispute between the parties’ I think it was brought for the purpose of settling in one package the real controversy between the parties and to avoid multiplicity of proceedings’ The court below ought to have granted the said application – see England v. palmer (1955) 14 WACA 659 at 661, Igwe v. Kalu (2002) 2 SCNJ 126 at 135-139, Adekeye v. Akin-Olugbade (1987) 3 NWLR (pt.60) 214 at 223-225, and the Indian supreme court case of Prakash v. Rani (1981) A.I.R. 484.
The appeal is meritorious. I allow it. I would abide by the consequential orders contained in the comprehensive judgment of my learned brother, Bage, J.C.A.
Appearances
A.M. Adeyemo with Oyekanmi For the Appellant
T.B. (MRS.) For Appellant
AND
Babatunde Aiku For Respondent
