FIVE STAR INDUSTRIES LIMITED v. BANK OF INDUSTRY LIMITED
(2013)LCN/6497(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of November, 2013
RATIO
THE PURPOSE OF AN AMENDMENT
The question that calls for determination for the moment is whether in the circumstances of this case, the application for amendment should be granted or denied. In Alsthom S. A. v. Saraki (2000) 14 NWLR (Pt.687) 415 heavily relied on by Prof. Kasunmu SAN, Achike JSC of blessed memory observed: “In law, to amend any Legal process affords a party – whether a plaintiff or defendant and even the appellant or respondent on appeal – opportunity to correct an error in the legal document. Such correction can be made informally where the process is yet to be served. After service however correction on legal process may be effected, depending on the prevailing rules of court, either by consent of both parties or upon motion on notice, like the Case in hand; such corrections are commonplace. Amendment enables the slips, blunders, errors and inadvertence of counsel to be corrected, in the interest of justice, ensuring always that no injustice is occasioned to the other party.” (underlining mine). PER IYIZOBA, J.C.A.
THE DUTY OF A CLAIMANT IN A CLAIM FOR DAMAGES FOR NEGLIGENCE
It is trite that to claim damages for negligence, the claimant must, in addition to pleading and establishing the particulars of negligence relied on, state and establish the duty of care owed to him by the defendant, the facts upon which that duty is founded and the breach of that duty by the defendant. Koya v. UBA (1997) 1 NWLR (Pt.481) 251; Umudje v. Shell-BP Petroleum Development Company of Nigeria Ltd. (1975) 9-11 SC 755 @ 166-167. PER IYIZOBA, J.C.A.
CIRCUMSTANCES WHERE LEAVE TO AMEND A WRIT OR PLEADINGS WILL BE GRANTED
D.A. Migliore & Anor (1929) 6-9 SC 163, Gbogbolulu of Vakpo v. Hodo (1941) 7 W.A.C.A (164). So the crucial question at any given moment is – under what circumstances will leave to amend the writ and or pleadings be granted? The guiding principle of cardinal importance is that generally speaking all such amendments ought to be made for the purpose of determining the real question in controversy between the parties or correcting any defect or error in the proceedings (See G. I Baker Ltd v. Medway Building & Supplies Ltd (1958) 1 WKR 1216; A. U. Amadi v. Thomas Applin & Co Ltd (1972) 1 All NLR 409). The Court therefore must in the process consider the materiality of the amendment sought in deciding whether or not to grant it, and will not allow an inconsistent or useless amendment (See Oyenuga v. provisional council of the University of Ife (1965) NMLR 9. So that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is a matter of right on his part to have it corrected if it can be done without injustice. If the amendment sought relates to a mere misnomer, it will be granted almost as a matter of course (Olu of Warri v. Esi (1958) SCNLR 384; (1958) 3 FSC 94); but an amendment to create a suit where none existed would not be granted (Re Pedro St, Matthew-Daniel (Deceased) (1950) 19 NLR 73. Also an amendment to change the nature of the claims before the court will not be allowed (See Foko & ors v. Foko & ors (1968) NMLR 44). Again leave to amend will not be granted if the amendment would not cure the defect in the proceeding (Abasi v. Labiyi (1955) WRNLR 12).” PER IYIZOBA, J.C.A.
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Lead Ruling): The Appellant/Applicant in a motion dated 23/2/13 and filed on 28/2/13 prayed the court for:
“An order granting leave to the Plaintiff/Appellant to amend the reliefs sought in its statement of claim by adding the following relief to wit the sum of N313,201,920 as Special Damages being damages suffered by the Plaintiff as a result of the negligent handling of the plaintiff/Appellant’s looms.”
The grounds for the application are set out in the motion paper and the motion is supported by a six paragraph affidavit to which are attached Exhibits ABK1, ABK2, ABK3, ABK4, ABK5 and ABK6 as averred in paragraph 4 vii of the affidavit, Exhibit ABK1 is a copy of the statement of claim on which the trial was conducted. Exhibit ABK2 is a copy of the statement of defence and counter claim of the 1st Defendant. Exhibit ABK3 is a copy of the Reply to the statement of defence of the 1st defendant. Exhibit ABK4 is a copy of the portion of the written address of counsel for the Plaintiff in support of the loss. Exhibit ABK5 is a copy of the 1st Defendant’s address with reference to the plaintiff’s claim on this issue. Exhibit ABK6 is a copy of the judgment of the trial court.
Professor A. B. Kasunmu SAN in moving the motion submitted that the amendment became necessary because the applicant at the lower court inadvertently failed to include the relief in its statement of claim even though evidence was led on the issue. He submitted that the amendment was consequently to bring the pleadings in line with the evidence already adduced. He placed reliance on Alsthom S. A. v. Saraki (2000) 14 NWLR (Pt.687) 415 and urged the court to grant the application.
In opposing the application learned senior counsel for the Respondent, Professor Taiwo Osipitan SAN submitted that they filed a counter affidavit of 23 paragraphs on 14/3/13. He argued that negligence was a non issue in the court below because it was merely mentioned in the reply and not specifically pleaded. He further submitted that the place to plead negligence is in the statement of claim and not in the Reply He argued that to plead negligence, a party must in the statement of claim plead duty of care, breach of the duty and resulting injury. These he submitted were not pleaded and cannot be pleaded in the Reply. Counsel relied on the following cases: Akeredolu v. Akinyemi (1989) 3 NWLR (Pt.108) 172; Adeniyi v. Fetuga (1990) 5 NWLR (Pt.150) 375; Koya v. UBA (1997) 1 NWLR (Pt.481) 251; Diamond Bank Ltd v. P.I.C. Ltd (2009) 18 NWLR (Pt.1172) 67.
It is counsel’s further submission that judgment had already been entered in favour of the Applicant. It was awarded damages for account and conversion which were the reliefs it asked for. Learned Senior Counsel submitted that the relief sought cannot be granted at this stage as that would amount to granting a relief not asked for in the lower court. He placed reliance on the following cases: Iweka v. SCOA Nig. Ltd. (2007) 7 NWLR (Pt.664) 325 @ 341 D – G; Jessica Trading Co. Ltd. v. Bendel Insurance Co. Ltd (1993) 1 NWLR (Pt.271) 538 @ 548. Counsel urged the court to refuse the application.
Replying, Professor Kasunmu SAN submitted that the cases cited are not absolute. He contended that they are no authorities for the circumstances existing in this appeal. He argued that all they are asking for is amendment and that it ought to be granted if the application satisfies the requirement for amendment – whether it succeeds or not is a different matter.
For a better understanding of the issues involved here, a brief summary of the facts of the case as relevant for the determination of this application is called for. The applicant, one of the leading ile Companies in Nigeria obtained credit facilities from a consortium of banks and later took credit facilities from the Respondent for the purchase of 32 looms. The Applicant failed to service the facilities as agreed. The Respondent consequently presented a Winding Up Petition against the Applicant. The winding up petition did not go to full trial. It was amicably resolved. Terms of Settlement were agreed on and made the Consent Judgment of the court by Hon. Justice Bioshogun. On 22/1/96, the Respondent went to the premises and factory of the Applicant and took away 56 Looms even though it financed the purchase of only 32 looms. The applicant averred in its amended statement of claim that the Respondent refused to return the looms in spite of repeated demands and court orders. Rather they went ahead to sell the looms and refused to disclose the amount they sold the looms. The Applicant in its statement of claim averred that the actual value of the looms as at the time they were sold was in excess of 300 million naira. In their amended statement of defence, the Respondent averred that the looms were lawfully removed and sold to realize part of the Applicant’s indebtedness to it. It averred that the sum realized from the sale of the looms was SFR 2,681,049.40 leaving an outstanding balance of SFR 4,678,276.70. It further averred that the amount realized from the sale of the 56 looms in naira was N235.20 million and gave particulars of the buyers and the amount each buyer paid. In consequence of these averments, the Applicant in its Reply challenged the Respondent on the sale price at which the looms were disposed of. It doubted that the looms were actually sold at that price and averred that if they were so under sold, it was because they were negligent in the removal of the looms and or damaged them in the process of removal. The parties led evidence in support of their pleadings, and later filed written addresses. The applicant in its written address made a claim for the sum of N313,201,920 being the difference between the sum of N235,000,000.00 for which the 56 looms were sold and the sum of N548,901,920.00 the alleged actual value of the 56 looms as at the date of sale. The Applicant claimed the figure as damages for the negligence of the Respondent in under selling the looms. At the conclusion of hearing, the learned trial Judge granted some but not all the reliefs claimed by the Applicant. The court found that the Applicant’s indebtedness to the Respondent did not exceed N109,500,126.61 as at 31st March, 1996 and that when the said sum is deducted from the amount realized by the Respondent from the sale of the 56 looms and other assets, the applicant would have a credit balance of N144,699,880.00 or its equivalent in Swiss Franc due from the Respondent. The court held that the Respondent ought to have returned the said sum to the Applicant and that since the Respondent did not return the money, the Applicant was entitled to compound interest on the said sum at the rate of 21% per annum from 31/3/96 till the date of judgment and 6% thereafter until the judgment debt is paid. The Respondent’s counter claim was dismissed. Dissatisfied with the judgment, the Respondent appealed against the judgment in CA/L/451/2011. The learned trial judge did not award the sum of N313,201,920 claimed by the Applicant in its written address. The Applicant appealed against the judgment in CA/948/2011. One of the grounds on the motion paper for this application is that the Applicant/Appellant’s counsel inadvertently failed to include the sum of N313, 201,920 in the reliefs claimed in the lower court, hence the need for the amendment.
I have carefully read the processes filed in this application and the two separate appeals. The issues are somewhat complex. It is however not necessary in the determination of this application to delve into the knotty issues involved in the appeals at this stage. The question that calls for determination for the moment is whether in the circumstances of this case, the application for amendment should be granted or denied. In Alsthom S. A. v. Saraki (2000) 14 NWLR (Pt.687) 415 heavily relied on by Prof. Kasunmu SAN, Achike JSC of blessed memory observed:
“In law, to amend any Legal process affords a party – whether a plaintiff or defendant and even the appellant or respondent on appeal – opportunity to correct an error in the legal document. Such correction can be made informally where the process is yet to be served. After service however correction on legal process may be effected, depending on the prevailing rules of court, either by consent of both parties or upon motion on notice, like the Case in hand; such corrections are commonplace. Amendment enables the slips, blunders, errors and inadvertence of counsel to be corrected, in the interest of justice, ensuring always that no injustice is occasioned to the other party.” (underlining mine).
The Supreme Court had no difficulty whatever in granting the amendment sought in the above case because the parties were ad idem that what was owed and liable to be paid was 5 million US dollars but in the writ of summons and in the statement of claim the applicant claimed the naira equivalent of the dollars. Judgment was entered in terms of the writ of summons. The amendment sought was merely to change the claim in the writ and statement of claim to dollars instead of its naira equivalent and thereby bring the pleadings in line with the evidence on record. Both parties were in agreement as to what was owed. This with due respect is far from the case in the present application. The Applicant here seeks to amend the reliefs sought in its Statement of claim by adding the following relief – “The sum of N313,201,920 as Special Damages being damages suffered by the Plaintiff as a result of the negligent handling of the Plaintiff/Appellant’s looms.” The reliefs can only be so amended if there are pleadings to support the amendment. It is trite that to claim damages for negligence, the claimant must, in addition to pleading and establishing the particulars of negligence relied on, state and establish the duty of care owed to him by the defendant, the facts upon which that duty is founded and the breach of that duty by the defendant. Koya v. UBA (1997) 1 NWLR (Pt.481) 251; Umudje v. Shell-BP Petroleum Development Company of Nigeria Ltd. (1975) 9-11 SC 755 @ 166-167.
The only reference to negligence in the pleadings was in the Reply where the Applicant averred thus:
“[5] With reference to paragraph 17 and 18 of the Statement of Defence of the 1st Defendant, the Plaintiff avers that the amount claimed to have been realized by the 1st Defendant from the sale of the looms unlawfully removed by them does not represent the actual value of the looms and the Plaintiff shall at the trial rely on a letter written by the agents of the manufacturers of the looms to the Managing Director of the 1st Defendant advising him of the sale value of those looms. In addition, the Plaintiff shall rely on invoices of purchase to establish the actual value of the looms and if they were in fact sold by the Defendants for the amount claimed [which is denied]. The amount derived was because the Defendants were negligent in the removal of the said looms and or damaged them in the process of removal”
It is clear from the wordings used that the Applicant is merely fishing. It is not sure whether the low sale price was as a result negligence in the removal of the said looms or that the looms were damaged in the process of removal. Such vagueness has no place in pleadings. More importantly, apart from the pleading being insufficient to ground damages for negligence, the Respondent could not have had the opportunity to react to anything pleaded in a reply. The pleadings must be in the statement of Claim to enable the opposing party to properly react to the pleading.
Granting the amendment sought by the Applicant would certainly occasion injustice to the Respondent. I am consequently in total agreement with learned senior counsel for the Respondent, Prof. Osipitan SAN that negligence was a non-issue in the court below. The court of Appeal will only grant the kind of amendment sought in this application where it is necessary to bring the pleadings in line with evidence already led. Udechukwu v. Okwuka (1956) SCNLR 189; Iweka v. SCOA (2000) 7 NWLR (PT.664) 325 @ 340-341 H-A. Amending the reliefs claimed without pleading facts to support the relief will achieve nothing in the circumstances and the court does not act in vain.
Further, I agree with Prof. Osipitan SAN that judgment had already been entered in favour of the Applicant. It was awarded damages for account and conversion which were the reliefs it asked for. It did not ask for damages for negligence. Granting the application might invariably lead to the Applicant being granted a relief not prayed for in the Lower Court. In Jessica Trading Co. Ltd. v. Bendel Insurance Co. Ltd (1993) 1 NWLR (Pt.271) 538 @ 548.
Kutigi JSC as he then was @ page 457 E-H observed:
“This court undoubtedly has inherent powers to amend the record of the trial court so as to comply with the facts proved before that court and decision given by it. The powers are exercised if and when necessary to prevent an occurrence of substantial injustice (see Metal Construction (W.A) Ltd & ors v
D.A. Migliore & Anor (1929) 6-9 SC 163, Gbogbolulu of Vakpo v. Hodo (1941) 7 W.A.C.A (164). So the crucial question at any given moment is – under what circumstances will leave to amend the writ and or pleadings be granted? The guiding principle of cardinal importance is that generally speaking all such amendments ought to be made for the purpose of determining the real question in controversy between the parties or correcting any defect or error in the proceedings (See G. I Baker Ltd v. Medway Building & Supplies Ltd (1958) 1 WKR 1216; A. U. Amadi v. Thomas Applin & Co Ltd (1972) 1 All NLR 409). The Court therefore must in the process consider the materiality of the amendment sought in deciding whether or not to grant it, and will not allow an inconsistent or useless amendment (See Oyenuga v. provisional council of the University of Ife (1965) NMLR 9. So that as soon as it appears
that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is a matter of right on his part to have it corrected if it can be done without injustice. If the amendment sought relates to a mere misnomer, it will be granted almost as a matter of course (Olu of Warri v. Esi (1958) SCNLR 384; (1958) 3 FSC 94); but an amendment to create a suit where none existed would not be granted (Re Pedro St, Matthew-Daniel (Deceased) (1950) 19 NLR 73. Also an amendment to change the nature of the claims before the court will not be allowed (See Foko & ors v. Foko & ors (1968) NMLR 44). Again leave to amend will not be granted if the amendment would not cure the defect in the proceeding (Abasi v. Labiyi (1955) WRNLR 12).”
I think this application belongs to the category of cases where the amendment will change the nature of the claims before the court. There is absolutely no averment in the 23 paragraph further amended statement of claim Exhibit ABK1 to support the allegation of negligence on the part of the Respondent during the removal of the 56 looms. If the amendment sought is granted, it will not cure the defect in the proceeding to enable the Applicant recover the N313,201,920 as Special Damages suffered by the Plaintiff as a result of the negligent handling of the Plaintiff/Appellant’s looms. Such an amendment will cause great injustice to the Respondent as it is too late in the day for them to present their own side of the story. They may not have cross-examined PW1 because they realized there was no averment in the further amended statement of claim on negligence on which to hang his testimony. This application did not satisfy the requirement for amendment of the reliefs in the statement of claim. It is hereby dismissed with N30,000.00 costs in favour of the Respondent.
SIDI DAUDA BAGE, J.C.A.: I read before now the ruling just delivered by my learned brother CHINWE EUGENIA IYIZOBA, JCA, I agree entirely with the said ruling. However, I wish to add a few words of my own, on the subject of amendment of the statement of claim set out in the Record of Appeal, and the appeal already entered and the Record of Appeal which contains all the findings of fact by the trial court which has already been received. The law is already settled on the conditions which must exist before such an amendment is to be allowed. See: EDOIGIAWERIE VS. AIDEYAN (2006) 10 NWLR (Pt.988) 438 at 441 it was held as follows:
“The test as to whether a proposed amendment should be allowed, is whether or not the party applying to amend can do so without placing the opposite party in such a position which cannot be redressed by that
panacea which heals every sore in Litigation namely costs. See ADEKEYE VS. AKIN OLUGBADE (1987) 3 NWLR (Pt.60) 214 at 450 paragraphs C-D”
I agree with the decision in the leading ruling that, if the amendment sought for, by the present applicant, is allowed by this court, at this stage, it will certainly change the nature of the claims before the court. It will cause great injustice to the Respondent as it is too late in the day for them to present their own side of the story. Certainly, this application did not satisfy the requirement for amendment of the reliefs in the statement of claim. It is also dismissed by me. I abide by the order as to costs contained in the lead ruling.
RITA NOSAKHARE PEMU, J.C.A.: I had the advantage of reading in draft the Ruling just delivered by my Brother Chinwe Eugenia Iyizoba JCA.
I agree with his opinion and conclusion, that to grant the amendment sought would be prejudicial to the Respondent.
I dismiss the Appeal and I abide by the consequential order made as to costs.
Appearances
Professor A. B. Kasunmu SAN with B. Makanjuola Esq., and D. Abolade Esq.For Appellant
AND
Professor Taiwo Osipitan SAN with C. O. Aduroja SAN, T. Abayomi (Mrs), and Kazeem Lemoh Esq.For Respondent
