KELECHI IHEKWEME & ANOR v. EMMANUEL ODINI OBUA
(2013)LCN/6647(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of December, 2013
CA/OW/141/2010
RATIO
WHEN AN AMENDMENT OF PLEADINGS WILL NOT BE GRANTED
It is however settled law that an amendment of pleadings should be allowed unless for the following reasons.
(a) It will entail injustice to the respondent
(b)The applicant is acting mala fide
(c) By his blunder, the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise.
See the case of IMONIKHE & ANOR. Vs. THE ATTORNEY GENERAL OF BENDEL STATE & ORS. (1992) LPELR – 1502 on the other hand the case of OSHO Vs. APE (1998) 8 NWLR (Pt.562) 492 is certainly not in support of the proposition that amendments could be granted which would be to the disadvantage of the other party to the action. Indeed Wali JSC made that point very clear in the case of THE SHELL PETROLEUM DEV. CO. (NIG.) LTD. Vs. AMBAH (1999) 3 NWLR (Pt. 593) 1 At 10 when he thus stated inter alia.
“The principle of law relating to the amendment of pleadings is that it can be granted at any stage of the proceedings provided it does not introduce a new cause of action or will over-reach or is prejudicial to the other party.
In the case at hand, the Appellants had tendered a power of Attorney which they had pleaded in paragraph 4 of their proposed statement of claim. The said paragraph reads thus, and I quote:
“On the 19th day of September 1991 the Late Marcel N. Ihekweme entered into a contract with the defendant in respect of Plot 115 or House 27 Road 221, Egbeada Housing Estate Owerri, Imo State. Sequel to the contract the defendant executed a Power of Attorney over the said property in favour of M.N. Ihekweme. The said Power of Attorney is hereby pleaded and shall be founded upon during trial as a document evidencing receipt of the sum of N200,000 by the defendant from M. N. Ihekweme in respect of this plot under litigation.” Per PHILOMENA MBUA EKPE, J.C.A.
WHETHER AN APPEAL COURT HAS A DUTY TO ATTEND TO A PRELIMINARY OBJECTION RAISED ON APPEAL FIRST BEFORE VENTURING INTO THE MAIN BUSINESS OF THE APPEAL.
It is trite law that where a preliminary objection is raised in an appeal the Appellate Court has a duty to first attend to the preliminary objection and resolve it before venturing into the main business of the appeal See: UBA VS. ACB (NIG.) (LTD,) (2005) 121 NWLR (Pt.939) 232 ABIOLA Vs. OLAWOLE (2006) 13 NWLR (Pt.996) 1; NGIGE Vs. OBI (2006) 14 NWLR (Pt.999) 1 and ADETORO Vs. OGO OLUWA KITAN TRADING CO. LTD (2002) 9 NWLR (Pt.771) 157. Per PHILOMENA MBUA EKPE, J.C.A.
JUSTICES
UWANI M. ABBA AJI Justice of The Court of Appeal of Nigeria
JOHN I. OKORO Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
Between
1. KELECHI IHEKWEME
2. STAN IHEKWEME Appellant(s)
AND
EMMANUEL ODINI OBUA Respondent(s)
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This is an Interlocutory appeal against the ruling of the High Court, Imo State, sitting in Owerri delivered on the 9th March, 2010 by Justice Nonye Okoronkwo, wherein the learned trial Judge refused the application for amendment of the Plaintiff/Appellant’s Statement of Claim. The plaintiffs being dissatisfied with the ruling of the trial court appealed to this court.
The facts of the case are briefly stated as follows:
The appellants as plaintiffs in the lower court brought a motion to amend their Statement of Claim to plead a Power of Attorney as receipt evidencing payment of money in the transaction which is the subject matter of Suit NO. HOW/939/2008. The said motion was brought after an objection had been raised to the admissibility of the said Power of Attorney for not being registered as an Instrument. While arguments were on going and before the ruling on the admissibility or otherwise was reached,the plaintiffs filed the said motion for amendment and the trial court after hearing the said motion refused the order for amendment on the 9th March, 2010 on the ground that the purpose of the application if granted will overreach the defendant who raised the objection. The plaintiffs being dissatisfied with the ruling of the trial court appealed against same. The Appellants brief of argument dated 24th February, 2011 was filed on the 25th February, 2011. The respondent’s brief of argument was filed on 12th April, 2011 while the Appellants’ reply brief was filed on 19th May, 2011.
The Appellant raised seven grounds of appeal as seen on pages 26 – 29 of the record. In his brief of argument, the Appellants’ counsel Rev. P. O. Ori, Esq formulated four issues for determination as follows:
“1. Whether or not the court can disregard unchallenged evidence which in itself is not perversed (Ground 1 and 3)
2. Whether or not the court is right in making findings or conclusions, shorn or without evidence and without recourse to the law (Ground 2 and 7).
3. Whether a party is precluded from amending his process because the other party has raised an objection, more so when the objection is on entirely different legal point or premise (Ground 4).
4. Whether there was denial of fear hearing in that the court did not pronounce on an issue submitted to it and also failed to record the submission of counsel (Ground 2 and 6).
On his own part, the learned counsel for the Respondent raised two issues for determination. Thus
“(a) Whether the learned trial Judge was wrong in refusing the application for amendment.
(b) Whether the failure of the trial court to pronounce on the second relief sought in the application occasioned a miscarriage of Justice.”
Learned counsel for the Respondent included in this brief of argument a notice of preliminary objection, in which it attacked the competence of the entire Appellants grounds of appeal as well as the jurisdiction of this Honourable court to hear and determine this appeal on the grounds that all the grounds of appeal raised by the Appellants’ counsel involve grounds of either mixed law and facts or facts alone and as such requires leave of either the trial court or this court and failure to obtain such leave renders all the grounds of appeal and their particulars as well as the issues formulated therein incompetent. He cited S.241 of the 1999 Constitution.
The learned counsel for the Respondent further relied on the cases of:
1. LEADERS & CO LTD. VS. KICSAMOTU (2004) 4 NWLR (PT.804) 519
2. ONIFADE VS. OLAYIWOLA (1990) 7 NWLR (PT. 161) 13
3. OLANREWAJU VS. OGUNLEYE (1997) NWLR (PT. 845) 12.
4. CBN VS. OKOTIE (2002) FWLR (PT. 103) RATO 1, at Pg. 35 Para. D – E.
I shall however reproduce the grounds of appeal without of their particulars as follows:
1. GROUND ONE
Error in Law
The lower court erred in law when in delivering its ruling it failed to accept the unchallenged affidavit evidence placed before it,
2. GROUND TWO
Error in Law
The lower court erred in law in that whilst refusing the amendment gave a Ruling not backed up by evidence thus. “The purpose of this application for amendment is to overreach and defeat a defence (sic) which will otherwise be available to the defendants (sic) who have (sic) raised the issue on defence(sic) of non registration of the Power of Attorney and consequently its non- admissibility in evidence..”
3. GROUND THREE
Error in Law
The learned Judge of the lower court erred in law in refusing the application when there existed sufficient and incontroverted evidence or reasons for upholding the application
4. GROUND FOUR
Error in Law
The lower court erred in law when it held thus “The purposes of this application for amendment is to overreach and defeat a defence which will otherwise be available to the defendants (sic) who have (sic) raised the issue on defence(sic) of non registration of the Power of Attorney and consequently its non admissibility in evidence. See Cropper v. Smith Amendment however liberal it is, is not alterable in such circumstances as it is intended to over reach and deprive the defendant a possible defence…”
5. GROUND FIVE
Error in Law
The lower court erred in law when it failed to give a decision on an issue submitted to it.
6. GROUND SIX
Error in Law
The learned trial Judge erred in law when he did not record the Appellant’s counsels oral argument that paragraphs 4 & 5 of the counter affidavit be expunged for being offensive to the evidence Act.
7. GROUND SEVEN
Error in Law
The lower court erred in law when it failed to consider the relevant submissions of the Applicants which submission are in accord with the law on amendment.
Counsel argued that if this court examines the grounds of appeal in this appeal and their particulars with a parameter postulated in the aforementioned cases, the court will find that all the grounds are either of mixed law and facts or of facts alone. He equally contended that going by the principle contained in S.241 (1)(b) cited above, the Appellants ought to seek and obtain leave to file the said grounds of appeal and having failed to do so, the grounds and indeed the appeal itself including of course the issues for determination proffered therefore are incompetent. He further submitted that the court should declare the appeal incompetent and strike out all the grounds alongside the appeal for being incompetent.
Learned counsel further contended that if this court upholds his preliminary objection, then there will be no brief which he could be called upon to respond to. He relied on the case of: ONYEMEH Vs. EGBUCHULAM (1995) 6 NWLR (Pt. 448) 255. Learned counsel further submitted that in the unlikely event of his preliminary objection not succeeding he thereby joined issues with the Appellants counsel and raised the two issues mentioned earlier for consideration namely in paragraphs (a) and (b) above. Learned counsel for the Appellants in his reply submitted that all the grounds of appeal are of law and no leave need be obtained and he referred the court to the case of SHANU Vs. AFFRIBANK PLC (2000) FWLR (Pt. 23) 122 Para. H-C.
It is trite law that where a preliminary objection is raised in an appeal the Appellate Court has a duty to first attend to the preliminary objection and resolve it before venturing into the main business of the appeal See: UBA VS. ACB (NIG.) (LTD,) (2005) 121 NWLR (Pt.939) 232 ABIOLA Vs. OLAWOLE (2006) 13 NWLR (Pt.996) 1; NGIGE Vs. OBI (2006) 14 NWLR (Pt.999) 1 and ADETORO Vs. OGO OLUWA KITAN TRADING CO. LTD (2002) 9 NWLR (Pt.771) 157.
It is therefore the onerous duty of this court to attend to the preliminary objection raised by learned counsel for the respondent and to examine thoroughly the grounds of appeal filed by appellant’s counsel with a view to finding out as to whether leave is required to file the said grounds of appeal in which case the court lacks the necessary powers to adjudicate on the main appeal.
The preliminary objection in my opinion is not contesting whether the Appellant has issues to appeal against the ruling of the trial court, but that the Appellant has an obligation to seek the leave of either the trial court or this court to file this appeal, where all the grounds of appeal are at most on point of either mixed law and facts or facts alone.
To do a proper and thorough examination of the grounds of appeal in this appeal it is pertinent to adumbrate on the said grounds of appeal herein.
A careful look at grounds 1 and 3 of the grounds of appeal in the instant case reveals that learned counsel for the appellant’s complaint is about failure of the trial court to act upon the unchallenged evidence of the Appellants Also in one of the particulars of error to the 3rd ground, the learned counsel described the attempt by the Respondent’s counsel to controvert the Appellants evidence as improper traverse. It is however instructive that mere general denials in pleadings are never sufficient traverse and amount to no denial at all, with the result that the particular pleaded facts remain unchallenged. See UBA PLC V. CHIMAEZE (2007) ALL FWLR (Pt. 364) 303 at 318 A – B; 319 – 320 H – A. It is therefore my view that grounds 1 and 3 based on the principles are grounds of law simpliciter.
In the case of THOR LTD. Vs. FCMB LTD (2002) 4 NWLR Pt. 757, 427. It was held that only when facts are undisputed and there is a wrong application of law to such facts that a ground will be an issue of law. In the instant case, it has been argued that the trial court was wrong by refusing or failing to act upon the undisputed facts contained in the Appellants affidavit evidence, as such grounds 1 and 3 of the appellants grounds of appeal are competent and I so hold.
Again a careful examination of grounds 2 and 4 of the appellants’ grounds of appeal will reveal that learned counsel for the Appellants complaint about the trial court’s ruling is not supported by evidence. In OLANRENWAJU V. OGUNLEYE (1997) NWLR Pt.485, 12 it was held that a complaint about wrongful admission of evidence or that there was no evidence or no admissible evidence upon which a decision or finding was based is a ground of law. In the instant case, it is argued that the trial Judge wrongly admitted and acted upon evidence contained in the Respondent’s counter-affidavit, which paragraph is conclusive and offensive to the Evidence Act and therefore, inadmissible. It is my view that the above is a ground of law and I so hold. With regards to grounds 6 and 7 of the Appellant’s grounds of appeal, it is counsel’s submission that the learned trial Judge failed to record his oral submission and thus did not consider it. This, in my humble view is a statement of fact, the grounds which have been raised on appeal without leave of court and which renders grounds 6 and 7 incompetent.
However, even if grounds 6 and 7 of the grounds of appeal are rendered incompetent by reason of their being raised without leave of court, the other grounds: 1, 2, 3, 4 and 5 of the Appellant’s grounds of appeal, having been resolved as competent will be sufficient to sustain the appeal, See the case of THOR LTD Vs. FCMB LTD (2002) 4 NWLR Pt. 757, 427. In the light of all of the above, the preliminary objection fails and is hereby accordingly dismissed.
Having considered the preliminary objection, I shall now proceed to consider the main appeal. Like I stated earlier, the Appellants have raised four issues for determination while the Respondent on his part has raised two issues for determination as aforementioned.
In my consideration of the issues for determination in this appeal, I have carefully examined all the issues before me and I have decided to adopt the two issues raised by the Respondent as they tend to cover all the grounds raised in this appeal and are more elegantly couched. The first issue raised by the Respondent is as follows:
“Whether the trial Judge was wrong in refusing the application for amendment.”
Learned Appellant’s counsel submitted that the Respondent did not provide any convincing evidence to show how the intended amendment would overreach his defense. That from the Respondent’s counsel’s affidavit on page 19 paras 4 – 6 of the record, his basis for objection was that the document sough to be tendered was inadmissible at page. 24 of the record, he stated that the objection on inadmissibility was made on the grounds that the said document had not been registered. Learned counsel referred to the counter affidavit of the Respondent which states otherwise which makes the conclusion of the lower court at page 25 of the record perverse, and as lacking in evidential value. He cited the cases of BUHARI V OBASANJO (2005) ALL FWLR (Pt.258) 1604 and OJO Vs. FRN (2009) ALL FWLR (Pt.494) 1461 At. 1518 A – D.
Learned counsel further submitted that even if the objection had been for lack of registration of the said document, an amendment seeking to plead the document as a receipt evidencing payment of money is not prejudicial to the defence, neither was it done to overreach his defence. That the legal principles for allowing or disallowing an application for amendment of pleadings are well settled and these principles must be anchored on facts for a party to succeed or fail. Learned Appellants counsel stressed the fact that legal principles were not applied by the lower court in refusing the application for amendment and further submitted that every finding or conclusion of a court must be done by evidence. He cited the case of ISIAQ Vs. SONIYI (2009) ALL FWLR (Pt. 498) 347 At.383 and 384 H – A where the Court of Appeal stated inter alia:
“A finding is said to be perverse when it runs counter to evidence and pleadings or where it is shown that the trial court took into account matter which ought not to have been taken into account or shut his eyes to the obvious.”
He then concluded on that point that the lower court did not consider the Appellants reasons for amendment as contained in their affidavit Learned counsel for the Appellant further submitted that it is the law that an amendment can be effected at any time in order to bring out the real issues in controversy so as to do substantial justice to the parties. He cited the case of OKITO V. OBIORU (2007) ALL FWLR (Pt. 365) 568 where the Court of Appeal frowned at the decision of the lower court in refusing to hear an application for amendment to resuscitate the case irrespective of an application for striking out of the suit for being statute barred. That once an amendment will not bring injustice to the other party, it ought to be allowed. See, SHANU V. AFRI BANK NIG. PLC (2000) FWLR Pt. 23 1221 At. 1234. He then urged the court to resolve this issue in favour of the appellant.
In reply to issue one, learned counsel for the Respondent submitted that even though an application for amendment of pleadings can be made and granted at any time, it is however, regulated by different principles depending on the stage of the application, That before the close of the case for the parties, as in the instant case an application for amendment, can be granted unless it will be overreaching or it will entail injustice or is seen to have been brought mala fide. See KODE V. YUSUF (2001) FWLR Pt.40, 1727 R.1 at 1746 Para. E. He then referred to paras. 4, 5 and 6 of the Respondent’s counter affidavit contained at page 19 of the records and submitted that they show that it would be overreaching to grant the said amendment.
He again submitted that the lower court is not bound by any law to make pronouncements on all the facts contained in an affidavit before it. That in according probative value to the evidence of a witness, the trial court in her discretion considers not only the evidence but also the demeanor of the witness and the facts and circumstances necessary for the proper exercise of that discretion. See, CENTRAL BANK OF NIG. Vs. KOJIE (2002) FWLR Pt. 103, 349.
He then referred to such circumstances as shown at page 24 of the record of appeal as well as paras. 41 – 44 of the Respondent’s brief which go to show that the Appellants application is intended to overreach the Respondent. He then cited the case of NIWA Vs. SPDC NIG. LTD. (2008) ALL FWLR Pt. 433, 1402 P. At 1418 Para F – G, where the Supreme Court of Nigeria has defined the term “over reach” to mean to circumvent, outwit or get the better of something by cunning or artifice and includes smartness on the part of a party in the litigation to defeat his opponent by a thoroughly organized plan to frustrate the intention and intendment of the adverse party That from both the facts and circumstances referred to in the Respondent’s brief, the conduct of the Appellant in bringing this application smacks of smartness Learned counsel for the Appellant further submitted that even if the Appellants reasons for amendment as contained in paras. 4 and 5 of his affidavit in support were unchallenged, that those paragraphs could not have sustained an application for amendment. He then concluded that a close look at those paragraphs will show that the facts contained therein are facts outside the knowledge of the deponent and are in clear violation of Section 88 and 89 of the Evidence Act and liable to be struck out. He then urged the court to resolve the issue in favour of the Respondent.
ISSUE TWO is whether failure of the trial court to pronounce on the 2nd relief sought in the appellant occasioned a miscarriage of justice.
Learned counsel for the Appellant submitted that in their application for amendment, the 2nd prayer was to withdraw a front loaded Exhibit and replace same with another Exhibit as contained in page 8 – 15 of the records. That arguments in respect of that were canvassed by both parties particularly the Respondent at page 22 of the record of appeal. That the learned trial Judge gave no Ruling on the issue even though the court was duty bound to give a Ruling one way or the other. See DINGYADI Vs. INEC (2010) ALL FWLR (Pt.550) 1204 At. 1233 – 1234 H – B. Where the court stated inter alia:
“it is the duty of a court, whether of first instance or appellate to consider all the issues that have been joined by parties and raised before it for determination. If the court failed to do so, without a valid reason, then it has certainly failed in its duty, for it is a fundamental principle of administration of justice that every court has a duty to hear, determine and resolve such question.”
Learned appellant’s counsel again submitted that since no Ruling was given on that issue, this court is therefore invited to assume its powers under Order 4 Rule 3 of the Court of Appeal Rules 2011 and give a Ruling on that issue since arguments had been proffered on either side. Counsel also invites this court under S. 15 of the Court of Appeal Act and Order 4 Rule 3 of the Court of Appeal Rules 2011 to expunge the offensive paragraphs of the counter affidavit and place reliance on the Appellant’s affidavit. He then cited the following cases: ATTORNEY GENERAL PLATEAU STATE V. ATTORNEY GENERAL NASSARAWA STATE (2005) ALL FWLR (PT. 266) 1227 AT 1233, ARABAMBI V. ADVANCE BEVERAGES INDUSTRIES LTD. (2006) ALL FWLR (Pt. 295) At 606 G – H., GOV. EKITI STATE Vs. OJOH (supra) 1328 D – G. Learned counsel concluded that failure to record and consider the submissions of counsel is tantamount to a denial of fair hearing and urged the court to resolve the issue in favour of the Appellant.
In response to the 2nd issue, learned counsel for the Respondent conceded to the fact that the lower court failed to make any pronouncement on the 2nd prayer on the motion prayer but that this did not occasion any miscarriage of justice, since the success of the 2nd prayer is irretrievably tied to the success of the 1st prayer for amendment. Learned counsel also called for the invocation of the court’s powers to re-hear the 2nd prayer and desist from granting it.
Learned counsel stated categorically that the document which the Appellant is seeking to withdraw had been earlier tendered and objected to as being inadmissible and that both counsel had addressed the court on its admissibility. He then cited the case of HAASTRUP Vs. RORO TERMINAL CO. LTD (2003) 7 NWLR 879 358 para. H-B where this Honourable court held that where an objection has been made to the admissibility of a document, it is competent for the party tendering it to apply to withdraw it immediately the objection in raised. But once the party tendering has joined issues by making a reply, then he cannot be allowed to withdraw the document. Counsel urged this court not to depart from the decision in the above case.
He further submitted that since withdrawal of the said document cannot be allowed in law, at this stage, since issues had been joined it then follows that it cannot then be replaced with Exhibit Justice B. Learned counsel for the Respondent also submitted that there has been no ground of appeal against the fact that the trial court had failed to give a Ruling on that issue. He then urged the court to resolve Issue No. 2 in favour of the Respondent.
A summary of the Appellants complaint under issue one is that the learned trial Judge was wrong in refusing the Appellant’s application for amendment.
It is however settled law that an amendment of pleadings should be allowed unless for the following reasons.
(a) It will entail injustice to the respondent
(b)The applicant is acting mala fide
(c) By his blunder, the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise.
See the case of IMONIKHE & ANOR. Vs. THE ATTORNEY GENERAL OF BENDEL STATE & ORS. (1992) LPELR – 1502 on the other hand the case of OSHO Vs. APE (1998) 8 NWLR (Pt.562) 492 is certainly not in support of the proposition that amendments could be granted which would be to the disadvantage of the other party to the action. Indeed Wali JSC made that point very clear in the case of THE SHELL PETROLEUM DEV. CO. (NIG.) LTD. Vs. AMBAH (1999) 3 NWLR (Pt. 593) 1 At 10 when he thus stated inter alia.
“The principle of law relating to the amendment of pleadings is that it can be granted at any stage of the proceedings provided it does not introduce a new cause of action or will over-reach or is prejudicial to the other party.
In the case at hand, the Appellants had tendered a power of Attorney which they had pleaded in paragraph 4 of their proposed statement of claim. The said paragraph reads thus, and I quote:
“On the 19th day of September 1991 the Late Marcel N. Ihekweme entered into a contract with the defendant in respect of Plot 115 or House 27 Road 221, Egbeada Housing Estate Owerri, Imo State. Sequel to the contract the defendant executed a Power of Attorney over the said property in favour of M.N. Ihekweme. The said Power of Attorney is hereby pleaded and shall be founded upon during trial as a document evidencing receipt of the sum of N200,000 by the defendant from M. N. Ihekweme in respect of this plot under litigation.”
A cursory glance at the said paragraph to my mind indicates that the Appellants sought to tender the said Power of Attorney “as a document evidencing receipt of the sum of N200,000.00. The question that comes to the fore here is whether the Appellant can withdraw a document so tendered after it had already been objected to and issues had been joined on the subject matter. The air must first be cleared on this point before we can delve into the meat of the amendment proper. The Appellant had tendered the Power of Attorney as a front loaded document. After the document had been objected to, he then sought to amend his pleadings to tender the said document with other accompaniments as a mere receipt of money had and received.
Under what circumstances then will a court allow a party to amend its pleadings? In the case of AKON V. ABUH (1988) 3 NWLR (Pt. 850) At. 696 EJIWUNMI JSC of blessed memory had this to say:
“The Principles that should guide a court in deciding whether an amendment to a Statement of Claim ought to be granted or not, have been the subject of several pronouncements by this court.
Some of such cases are as follows: Olu of Warri v. Esi (1958) S.C.L.R, 384; Re; Pedro St. Mathew Daniel (Deceased) (1950) 19 NLR 73; Abasi v. Labiyi (1958) WRNL 12; Foko v. Foko (1968) NMLR 441; Union Bank v. Ogboh (1995) 2 NWLR (Pt.380) 647; Onyenuga v. Provincial Council of University of Ife (1965) NMLR 9; Jessica Trading C. Ltd v. Bendel Insurance Co. Ltd (1993) 1 NWLR (Pt. 271) 538. From all these cases and others to which I have not referred to specifically, in this ruling. I think the following principles are discernible to determine when and in what circumstances a party may be allowed to amend his pleadings. These are:-
(a) The court must consider the materiality of the amendment sought and will not allow an inconsistence or useless amendment. (b) Where the amendment would enable the court to decide the real matter in controversy, and without injustice. (c) Where the amendment relates to a mere misnomer, it will be granted almost as a matter of course. (d) The court will not grant an amendment to change the nature of the claims before the court. (e) The court will not grant an amendment where it will create a suit where none existed. (f) Leave to amend will not be granted if the amendment would not cure the defect in the proceedings. (g) An amendment would be allowed if such an amendment will prevent injustice. Any amendment which will result in injustice to the other party or which will violate the rule of audi alteram partem will not be allowed. The rule will be infringed if an amendment is introduced at such a stage that the other side no longer has the opportunity of adducing its own answer to the point which the amendment has enabled the applicant to introduce. (h) An amendment will not be granted on appeal where it would be inconsistent with the testimonies of witnesses on which both parties fought the case at the trial.”
It is therefore clear from the above stated governing principles that a party would only be granted leave to amend its pleadings depending on a number of factors. However, the court in the process is required to maintain its natural position and ensure that parties are bound by their pleadings. It is also recognized that sometimes, to obviate ambiguity or to aver some more facts, a party may amend his pleadings in so far as it will not be to the disadvantage of the other side or occasion a miscarriage of justice. See KATE ENTERPRISES LTD. V. DAEWOO (NIG.) LTD. (1985) 2 NWLR (Pt. 3) 116.
The learned trial Judge in his considered Ruling stated thus:
“The purposes of this amendment is to overreach and defeat a defence which will otherwise be available to the defendants who have raised the issue on defence of non-registration of the Power of Attorney and consequently its non-admissibility in evidence.”
The learned trial Judge strived to bring home the point that an amendment however liberal it is, is not alterable in such circumstances as it is intended to overreach and deprive the defendant of a possible defence.
The main purposes of amending pleadings are to cure all discernible defects in the pleadings, to put the proposed amendment in line with evidence already adduced and to settle the real controversy between parties in a suit in order to do substantial justice. See LAGWO V. TOKU (1992) 2 NWLR (Pt.223) 278 at 290 – 291.
The aim of an amendment is usually to prevent the manifest justice of a cause from being defeated or delayed by formal slips which may arise from the inadvertence of counsel. See EHIDIMHEM V. MUSA (2000) 4 SC (Pt. 11) 166 At. 187. Issue No, 2 is whether the failure of the trial court to pronounce on the 2nd relief sought in the application occasioned a miscarriage of justice.
The 2nd relief sought by the Appellant is to evaluate the evidence on the 2nd issue and allow the withdrawal of Exhibit Justice and its replacement with Exhibit Justice 1. Appellant’s application for amendment is to plead the document i.e. the Power of Attorney as a receipt. The Respondent’s point of objection was that the said Power of Attorney is inadmissible as it ought to have been registered No doubt, arguments had been canvassed on other side and the court had reserved Ruling to be in the course of delivering judgment.
The document which the Appellants are now seeking to withdraw in the application had already been tendered and objected to as being inadmissible. Issues had been joined and the learned trial Judge had reserved ruling to be delivered in the course of judgment. The court is therefore bound by its own order that ruling would be delivered on the day of Judgment. Again both parties are also bound by that order of court. See the case of HAASTRUP V. RORO TERMINAL CO. LTD (2003) 7 NWLR 879 358 At. 364 – 365 H – B.
The court held that where an objection has been raised to the admissibility of a document, it is competent for the party tendering it to apply to withdraw it immediately, the objection is raised. But once the party tendering it has joined issues by making a reply, then he cannot be allowed to withdraw the document.
In paragraph 4 and 5 of the Respondent’s counter affidavit at pg. 19 of the Record of Appeal, it is stated that counsel for the Defendant/Respondent had raised an objection to the admissibility of the document and the Plaintiff/Appellant had replied lengthily and then had gone further to apply for an adjournment to enable him get further authorities and the said matter had been adjourned to the 23rd day of January, 2009.
Learned counsel further stated in his sworn affidavit that rather than produce the authorities as canvassed in the appellant’s argument, learned counsel now introduced a new dimension to the proceedings by bringing an application to amend their statement of claim. This move to my mind is an afterthought and should be disallowed. It is certainly meant to overreach the other party.
The Supreme Court of Nigeria has defined the term “overreach” to mean to circumvent, outwit or get the better of something by cunning or artifice and that includes smartness on the part of a party in the litigation to defeat his opponent by a well organized plan to frustrate the intention of the intendment of the adverse party. See the case of NIWA Vs. S.P.D.C. NIG. LTD. (2008) ALL FWLR 433; 1402 At. 1418 F – G. The courts will therefore not easily grant an application for amendment, which if granted will unduly delay the hearing of the suit or unfairly prejudice the other party to the suit. See the case of ALSTHOM S.A. Vs. SARAKI (2000) 10 – 11 SC 48.
It is however my humble view that withdrawal of the said document cannot be allowed at this stage as issues have been joined. It is the discretion of the lower court to defer its ruling till judgment although it would have been more appropriate to deliver the Ruling one way or the other in the course of the proceedings. Like I have earlier stated, the trial court and the parties are therefore bound by that order of court.
There ought to be no sentiment on the altar of justice. The appellant is therefore not allowed to withdraw exhibit justice which had been frontloaded, tendered and objected to by the other party. It is therefore too late in the day for the Appellant to embark on such an exercise. The law does not permit a party to appropriate and reprobate in the same vein and therefore the Appellant’s 2nd prayer cannot be granted. In the result, this appeal fails and is hereby accordingly dismissed. The Ruling of the trial court delivered on the 9th day of March 2010 is hereby affirmed, I make no order as to costs.
UWANI MUSA ABBA AJI, J.C.A.: I have had a preview of the read judgment of my learned brother, P. M. Ekpe, JCA just delivered and I agree with his Lordship that the appeal fails and it is hereby dismissed.
PHILOMENA MBUA EKPE, J.C.A.: Honourable Justice John I. Okoro, JCA has been elevated to the Supreme Court and thus can no longer make any contribution on this judgment.
Appearances
P. O. Ori, Esq.For Appellant
AND
U. A. C. Azogu, Esq.For Respondent
