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LAWAL v. SKYFIELD SAVINGS AND LOANS LTD & ORS (2022)

LAWAL v. SKYFIELD SAVINGS AND LOANS LTD & ORS

(2022)LCN/17025(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, August 19, 2022

CA/L/135/2018(CONSOLIDATED)

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

ALHAJI (CHIEF) RAMON O. LAWAL APPELANT(S)

And

1. SKYFIELD SAVINGS AND LOANS LIMITED 2. LIVERAGE WASH LIMITED CONSOLIDATED WITH ALHAJI (CHIEF) RAMON O. LAWAL 1. SKYFIELD SAVINGS AND LOANS LIMITED 2. ENGR. OYEGUNLE OYEKANMI WASIU RESPONDENT(S)

 

RATIO

WHETHER OR NOT A PARTY CAN TAKE ADVANTAGE OF AN IRREGULARITY TO WHICH HE HAS ACQUIESCED

The law is fairly well settled that a party is not at liberty to take advantage of an irregularity to which he has acquiesced: NOIBI v FIKOLATI [1987] NWLR (PT 52) 619, AKHIWU v THE PRINCIPAL LOTTERIES OFFICER, MID-WESTERN STATE & ANOR (1972) 1 All NLR (PT 1) 229 at 234 and ADEBAYO & ORS v SHONOWO & ORS (1969) 1 All NLR 176. 

Indeed, matters procedural must be raised at the earliest opportunity (upon being served with the Court process) before taking any further steps in the proceedings, otherwise, the party alleging it will be foreclosed. See KHALID v ISMAIL & ANOR (2013) LPELR-22325(CA). That is the scenario we are confronted with in the instant appeal. In any event, the law, as I have always understood it, is that a defence irregularly introduced (whether a statement of defence or counter affidavit to originating summons) is not void but merely voidable, and the Court cannot shut its eyes to it. See UNITED BANK FOR AFRICA v DIKE NWORA [1978] 11 – 12 SC 1 and UNITED TECHNICAL COMPANY v PAMOTEI [1989] 2 NWLR (PT 103) 244 (1989) 3 SC (PT. 1) 79.  PER AFFEN, J.C.A.

THE POSITION OF LAW ON THE PURPOSE OF THE COURTS

A cardinal principle of our jurisprudence is that Courts of law exist to decide the rights of parties before it and not to punish them for errors or mistakes they may make in the conduct of their cases by deciding otherwise than in accordance with their rights. The necessary corollary of the above principle is that a party may at any stage of the proceedings before judgment alter or amend his pleadings or endorsements as may be necessary for the purpose of determining the real question(s) in controversy in a case. There is no kind of mistake or error which, if not fraudulent or intended to overreach, the Courts cannot correct if this can be done without injustice to the other party; and even though blunders occur nowadays with disturbing regularity, a Court of law (which is also a Court of equity) imbued with a sense of justice should not suffer itself to be stampeded into chasing the shadows of these blunders rather than facing the substance of the justice of the case. See ADEKEYE v AKIN-OLUGBADE [1987] 3 NWLR (PT. 60) 214.  PER AFFEN, J.C.A.

THE POSITION OF THE LAW ON THE AIM OF AN AMENDMENT

The aim of an amendment is to prevent the manifest justice of a cause from being defeated or delayed by formal slips which arise from the inadvertence of counsel, and the Courts have through the years taken a stance that however negligent or careless the slip may have been or however late the proposed amendment, it ought to be allowed if this can be done without injustice to the other side, for a step taken to ensure justice cannot at the same time and in the same breath be used to perpetuate injustice on the adverse party. See ADEKEYE v AKIN-OLUGBADE supra. PER AFFEN, J.C.A.

CONDITIONS UPON WHICH A COURT CAN GRANT AN AMENDMENT

A conspectus of decided cases reveals a general inclination or leaning by the Courts to grant an amendment save in situations where: (i) the amendment sought will occasion injustice to the other party; (ii) the applicant is acting mala fide; or (iii) the applicant has by his blunder done some injury to the respondent which cannot be compensated by costs or otherwise. See OJAH & ORS v OGBONI & ORS (1976) 4 SC 69, (1976) 1 NMLR 95 at 99, OKAFOR v IKEANYI (1979) 3 – 4 SC 99 at 106, OKEOWO v MIGLIORE (1979) 11 SC 138 at 197 & 199 – 200, ADETUTU v ADEROHUNMU (1984) 1 SCNLR 515, [1984] NSCC 389, KODE v YESUFU [2001] 4 NWLR (PT 703) 392, AJAKAIYE v ADEDEJI [1990] 7 NWLR (PT 161) 192 and ADELAJA v ALADE [1994] 7 NWLR (PT. 358) 537.  PER AFFEN, J.C.A.

THE POSITION OF LAW ON WHEN AN AMENDMENT MAY BE SOUGHT AND GRANTED

Crucially, an amendment may be sought and granted at the close of the plaintiff’s case [see OKOLO v NWAMU (1973) 2 SC 59 at 68], and even if it is in consequence of an objection raised by the adverse party. See ITA v DADZIE [2000] 4 NWLR (PT 652) 168 at 181 (CA). 

In an application for amendment of pleadings, the Court will take into consideration a number of factors, including: (a) the attitude of the parties in relation to the amendment; (b) the nature of the amendment sought in relation to the suit; (c) the question(s) in controversy; and (d) the time when the amendment is sought. See ALSTHOM S. A. v SARAKI [2000] 14 NWLR (PT 687) 415. PER AFFEN, J.C.A.

PETER OYINKENIMIEMI AFFEN, J.C.A. (Delivering the Leading Judgment):
Introduction
This interlocutory appeal is an offshoot of two consolidated suits pending before the High Court of Lagos State which granted leave to the Respondents (qua defendants) to amend their joint statements of defence in a considered ruling delivered by Kasali, J. on 31/5/17. The purpose of the amendment was to enable the Respondents subjoin a counterclaim to their statement of defence after the Appellant (qua claimant) had closed his case. The Appellant could not see his way clear that the lower Court properly exercised its discretion in granting leave to amend in the manner and at the time it did. He consequently lodged the present appeal vide a Notice of Appeal filed out of time on 23/11/17, albeit with the leave of Court granted on 22/11/17. The ruling appealed against lies at pp. 359 – 369 of the records, whilst the Notice of Appeal is copied at pp. 406 – 409 thereof.

Issues for determination
The three (3) issues distilled for determination in the Amended Appellant’s Brief of Argument filed on 22/2/18 (which were adopted without modification in the Respondent’s Brief filed on 28/8/18) are:
(i) Whether the Defendants/Respondents can amend their Joint Statement of Defence by incorporating a Counter-Claim after the Claimant/Appellant has closed his case?
(ii) Whether the Defendants/Respondents can by an amendment to their Joint Statement of Defence incorporate a Counter-Claim which raises issues based on facts that arose after the issue of the Writ of Summons in these Consolidate suits?
(iii) Whether the Defendants/Respondents in these consolidated suits have a competent Statement of Defence in these suits?

Appellant’s submission
The Appellant referred to Order 24 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2012 (in force at all material times) and recited the principles governing the grant or refusal of amendment as enunciated in a litany of decided cases (notably: OKEOWO v MIGLIORE (1979) 11 SC 139, STATE v GWONTO (1983) SCNLR 142, OJOGBORO v KUKU [1986] 3 NWLR (PT 31) 697 and MAERSK LINES v ADDIDE INVESTMENTS LTD [2002] NWLR (PT 778) 317, AMADI v THOMAS APLIN & CO LTD (1970) 1 ALL NLR 409 and AKANINWO v NSIRIM [2008] 9 NWLR (PT 1093) 439) and contended that the implication of granting leave to amend after the close of the claimant’s case on 18/6/15 is that “pleadings in the consolidated suit would have to be reopened for the claimant to file a defence to the defendant’s counterclaim, and the claimant will have to reopen his case to accommodate his evidence in defence of the counterclaim”. The Appellant insisted that he would be overreached thereby, placing reliance on UNION BANK NIGERIA PLC v LAWAL [2012] 6 NWLR (PT. 1295) 186, OGIDI v EGBA [1999] 10 NWLR (PT 621) 42 as well as AKANINWO v NSIRIM [2008] 9 NWLR (PT 1093) 439 (on the judicial definition of ‘overreaching’ and mala fide).

He pointed out that the grant or refusal of amendment is not automatic but subject to the discretion of the trial Judge exercised judicially and judicially, as well as taking into consideration the peculiar facts of each case, calling in aid the cases of MONOPRIS NIG LTD v OKENWA [1995] 3 NWLR (PT 383) 375, SAFFIEDINE v COMMISSIONER OF POLICE (1965) 1 ALL NLR 54 at 56, UGBOMA v OLISE (1971) 1 ALL NLR 8, UNIVERSITY OF LAGOS v AIGORO (1985) 1 SC 265 at 272 and UNIVERSITY OF LAGOS v OLANIYAN (1985) 1 SC 295 at 345; and argued that the reason put forward by the Respondent for seeking amendment was to bring in facts that arose after the commencement of the suit, and no facts showing any formal slip or inadvertence of counsel was placed before the lower Court which exercised its discretion without being guided by the evidence adduced. The case of MENAKAYA v MENAKAYA [2001] 16 NWLR (PT 738) 203 at 253 (on the proposition that discretion cannot be exercised in vacuo) was cited. The Appellant maintained that granting leave to amend statement of defence by incorporating a counterclaim after the close of claimant’s case distorts the natural order of trial as provided in S. 210 of the Evidence Act, 2011 and Order 30 Rules 7, 8, 11(1) and 13 of the High Court of Lagos State (Civil Procedure) Rules 2012.

On Issue 2, it was contended that the lower Court erred in granting leave to amend when the Respondents “stated and admitted” that the amendment introduced new facts that occurred since the institution of the suit, citing BIODE PHARMACEUTICAL INDUSTRIES LTD v ADSELL (NIG) LTD [1986] 5 NWLR (PT 46) 1070 at 1076 SAMSON SALAKO & ORS v BABATUNDE WILLIAMS & ANOR (1998) 11 NWLR (PT 574) 505 (CA), ADETUTU v ADEROHUNMU [1984] 15 NSCC 389 at 396, ALHAJI FOLORUNSHO LYANDA KANUBI & ANOR v CHIEF SUNDAY OLAGUNJU & ANOR (2012) LPELR-9823(CA) as well as GOWON v IKE-OKONGWU [2003] 6 NWLR (PT. 815) 38 (2003) 1 SC (PT III) 57 on the proposition that “a defendant will not be allowed to raise by way of an amendment to statement of defence a counter-claim in respect of a cause of action that arose subsequent to the issue of the writ”; and that the lower Court held that “evidence in support of the amendment is already on record before the Court” whereas the Respondents have not offered any evidence in the consolidated suits, and this Court ought to disregard a finding of fact which is not supported by the evidence, placing reliance on R v OGODO (1961) ALL NLR 700, and UZUEGBU v PROGRESS BANK OF NIGERIA LTD [1985 – 1989] 4 NBLR 400 at 412.

The Appellant’s contention in respect of Issue 3 is that the lower Court did not consider the competence of the statement of defence dated 19/7/11 which the Respondents sought to amend as well as whether the Respondent (qua defendants) can adduce any evidence in the consolidated suits, insisting that a Court must always give a full and dispassionate consideration to all issues raised or canvassed before it, calling in aid EZEMONYE OKWARA v DOMINIC OKWARA & ANOR (1997) LPELR-6291(CA), OYEDIRAN v AMOO (1970) 1 ALL NLR 313 at 317 and OJOGBUE v NNUBIA (1972) 6 SC 227. This Court was urged to exercise its wide inherent powers under S. 15, Court of Appeal Act, 2004 and Order 4 Rule 3 Court of Appeal Rules 2016, citing OBI NWANZE OKONJI & 4 ORS v GEORGE NJOKANMA & 2 ORS [1991] 7 NWLR (PT. 202) 131 at 146 –per Olatawura JSC, EBBA v OGODO (1984) 1 SCNLR 372 and EZEMONYE OKWARA v DOMINIC OKWARA & ANOR (1997) LPELR-6291(CA). The Appellant insisted that the statements of defence in the consolidated suits constitute a nullity for having been filed outside the period of 42 days prescribed in Order 15 Rule 1(2) of the High Court of Lagos State (Civil Procedure) Rules 2012 without obtaining leave to do so out of time, calling in aid IFEZUE v MBADUGHA (1984) 5 SC 79 at 118, OGAR v JAMES (2001) FWLR (PT 67) 930 and ICHU v IBEZUE [1999] 2 NWLR (PT 591) 437 (1998) LPELR-6418(CA); and that they cannot be amended for being fundamentally defective ab initio, incompetent and/or non-existent in law, citing NEW NIGERIA BANK PLC v DENCLAG LTD [2005] 4 NWLR (PT 916) 549 and UNION BANK NIGERIA PLC v LAWAL [2012] 6 NWLR (PT 1295) 186. The Court was urged to resolve all three issues for determination in favour of the Appellant.

Respondents’ submission
On behalf of the Respondents, it is contended that the rules of Court permit parties to amend their pleadings twice during trial to reflect the real issues in controversy and achieve substantial justice in the matter, and the lower Court rightly granted leave to amend the statements of defence in the consolidated suits having regard to the affidavit evidence placed before it. Order 24 Rules 1 and 2 of High Court of Lagos State (Civil Procedure) Rules, 2012 and the cases of BARODA v IYALABANI [2002] 13 NWLR (PT. 785) 551 at 593 – per Ogundare JSC, CELTEL (NIG) LTD v ECONET WIRELESS LTD (2011) 3 NWLR (PT 1233) 156 at 167 –per Agbo JCA, YUSUF v ADEGOKE [2007] 11 NWLR (Pt.1045) 332 as well as KHALIFA v. ONOTU & ANOR (2016) LPELR-41163, OKOLI v AJOSE [1994] 8 NWLR (Pt. 362) 300 at 312, ETA v DAZIE [2013] NWLR (PT. 1359) 248 at 267 – 268 and ALSTHOM S. A. v SARAKI [2000] 14 NWLR (PT 687) 415 at 424 (on the object of amendment of pleadings) are cited.

The Respondent’s maintained that the Appellant was not overreached in any way as the amendment did not introduce facts of a different complexion; that contrary to the Appellant’s assertions, the facts constituting the counterclaim arose out of the same cause of action and are neither independent of the main claim nor alien to the Appellants; that the amendment merely clarified facts surrounding the dealings between the Appellant and the initial management of the Respondent which revealed underhand conduct and impropriety; and that the lower Court made it clear that the Appellant remains at liberty to file a defence to counterclaim and apply to reopen his case and lead evidence in support thereof since a counterclaim is a separate action tried along with the main claim for purposes of convenience and to avoid multiplicity of action, citing USMAN v GARKE [2003] 14 NWLR (Pt. 840) 261 and NSEFIK (SINCE DEAD) & ORS v MUNA & ORS ​(2013) LPELR21862; and that the Courts have always been inclined to grant an application for the recall of a witness as the circumstances of the case warrant in the interest of justice, citing ADEKANYE ELEKO v AKINRINIOLA WILLIAM OLOKUNBORO (1978) LPELR-FCA/B/9/78, insisting that the Applicant’s grouse is not that he was denied the opportunity to reopen his case to enable him lead evidence in defence of the counterclaim.

On Issue 2, the Respondents queried, rhetorically, whether a claimant or defendant should sit back and do nothing when facts dependent on a cause of action occur after the institution of a case, and maintained that they are not foreclosed from amending their statements of defence to raise facts contained in their counter-claim which arose out of the same subject matter after the institution of the consolidated suits for the wholesome consideration of all the facts in dispute as well as avoid a multiplicity of suits, placing reliance on OGBONNA v ATTORNEY-GENERAL, IMO STATE [1992] 1 NWLR (PT 220) 647, JERIC (NIG) LTD v UBN PLC [2000] 15 NWLR (PT 691) 447 and CONOIL PLC v DUTSE (2016) LPELR- 40236(CA). The Court was urged to hold that the objective of the counterclaim is to ensure that justice is done between the parties and there is ample opportunity for the Appellant to file a defence to counterclaim and recall his witness.

On Issue 3, the Respondents relied on EGBO v AGBARA (1997) 1 NWLR (PT 481) and SAUDE v ABDULLAHI (1989) NWLR (PT. 116) 387 in contending that non-compliance relating to time for doing a thing under the Rules of the Court is treated as an irregularity that will not vitiate the proceedings, and that the Appellant did not raise the issue of irregularity of the statement of defence until he sought to oppose the application for amendment. Reference is made to Order 5 Rule 1 (2) and 2 (1) of the Lagos High Court (Civil Procedure) Rules, 2012. The Respondents maintained that even if arguendo the Joint Statement of Defence dated 19/7/11 was filed out of time, the irregularity has been overtaken, negatived and swept away by the subsequent filing of an Amended Joint Statement of Claim by the Appellant (qua claimant) on 29/1/16 to which the Respondents have not yet had the benefit of consequential amendment; that in order for a procedural irregularity of the nature complained of by the Appellant to be sustained, the objection must not only be raised timeously, but must equally be shown to have occasioned a miscarriage of justice, which is not the scenario in the case at hand, calling in aid the cases of KHALID v ISMAIL & ANOR (2013) LPELR-22325(CA), BAJOGA v GOVT., F.R.N [2008] 1 NWLR (PT 1067) 85 at 115 as well as NOIBI v FIKOLATI [1987] NWLR (PT 52) 619 in support of the proposition that a party cannot take advantage of an irregularity to which he has acquiesced. The Respondents insisted that our Courts have since moved away from technical justice to substantial justice and will not shut their eyes to a Court process before it albeit irregular in the interest of justice, placing reliance on DAVID & ANOR v. AKINRUNTAN & ORS (2015) LPELR- 25643(CA) at 23 – 24 and MOBIL PRODUCING NIG UNLIMITED v MONOKPO [2003] 18 NWLR (PT 852) 346 at 411 and 412. This Court has been urged to affirm the ruling of the lower Court and dismiss the instant appeal in the interest of justice.

Resolution of appeal
In determining this appeal, let us take bearing from Issue 3 which is a challenge to the competence or validity of the statements of defence in the consolidated suits in respect of which leave to amend was granted in the ruling appealed against. The Appellant’s contention is that there were no valid statements of defence in the consolidated suits before the lower Court that could have been amended because they were filed out of time without seeking and obtaining leave of Court so to do. The affidavits of service (copied at pp. 40 – 44 of the records) reveal that the writs of summons, statements of claim and accompanying processes in the consolidated suits were served on 11/5/11 whilst the statements of defence were filed on 19/7/11. The prescription of Order 15 Rule 1(2) High Court of Lagos State (Civil Procedure) Rules 2012 is that “[a] defendant shall file his statement of defence, set off or counterclaim, if any, not later than 42 days after service on him of the claimant’s originating process and accompanying documents…” The statements of defence were filed outside the stipulated 42 days, and there is no indication anywhere in the records that the Respondents sought and obtained leave of Court to file defence out of time. But the relevant enquiry is as to the legal effect of a statement of defence filed out time without leave of Court. Does failure to comply with the timeline for delivering a statement of defence go to the roots of the competence of the defence so filed as forcefully contended by the Appellant? I would hate to think so.
Even without the necessity of seeking any external aid, Order 5 Rule 1 (2) of the Lagos High Court (Civil Procedure) Rules, 2012 makes it clear beyond peradventure that “Where at any stage in the course of or in connection with any proceedings there has by anything done or left undone been a failure to comply with the requirements as to time, place, manner, or form, the failure shall be treated as an irregularity and may not nullify such steps taken in the proceedings. The Judge may give any direction as he thinks fit to regularize such steps”.

Quite clearly, this provision of the rules of the lower Court defeats the Appellant’s contention without further assurance, even as the steps taken by him subsequent to the filing of the statements of defence point compellingly to waiver of whatever irregularity arising from the Respondents’ failure to file their defence within time. By Order 5 Rule 2(1), “An application to set aside for irregularity any steps taken in the course of any proceedings may be allowed where it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity”, whilst subrule 2 provides that: “An application under this rule may be by summons or motion and the grounds of objection shall be stated in the summons or notice of motion”. The Applicant did not raise any objection by way of summons or motion as enjoined by the rules of Court. He merely alleged irregularity by way of opposition to the Respondent’s application for amendment. This runs afoul of Order 5 Rule 2(1); and it seems to me ironic that a party seeking to enforce the provisions of the rules of Court against his adversary would equally fail to comply with the dictates of the same rules of Court.
What is more, it cannot escape notice that the Appellant had taken several steps in the proceedings before alleging that the statements of defence were plagued by irregularity. The statements of defence being objected to were filed on 19/7/11 albeit out of time, but the records reveal that the Appellant (qua claimant) filed amended statements of claim in the consolidated suits on 29/1/16, and proceeded to open and close his case before he subsequently raised the alleged irregularity in opposition to the Respondent’s application to amend their statements of defence. This being so, whatever irregularity that attended the statements of defence was effectively acquiesced in and condoned by the Appellant, and it is too late in the day to rake up the fact that they were filed out of time. The law is fairly well settled that a party is not at liberty to take advantage of an irregularity to which he has acquiesced: NOIBI v FIKOLATI [1987] NWLR (PT 52) 619, AKHIWU v THE PRINCIPAL LOTTERIES OFFICER, MID-WESTERN STATE & ANOR (1972) 1 All NLR (PT 1) 229 at 234 and ADEBAYO & ORS v SHONOWO & ORS (1969) 1 All NLR 176. 

Indeed, matters procedural must be raised at the earliest opportunity (upon being served with the Court process) before taking any further steps in the proceedings, otherwise, the party alleging it will be foreclosed. See KHALID v ISMAIL & ANOR (2013) LPELR-22325(CA). That is the scenario we are confronted with in the instant appeal. In any event, the law, as I have always understood it, is that a defence irregularly introduced (whether a statement of defence or counter affidavit to originating summons) is not void but merely voidable, and the Court cannot shut its eyes to it. See UNITED BANK FOR AFRICA v DIKE NWORA [1978] 11 – 12 SC 1 and UNITED TECHNICAL COMPANY v PAMOTEI [1989] 2 NWLR (PT 103) 244 (1989) 3 SC (PT. 1) 79. The Respondents’ failure or neglect to file the statements of defence (that were subsequently amended) within the 42-day period stipulated in the Rules of the lower Court is a mere procedural irregularity that lacks the potency to vitiate the entire proceedings or even the ruling appealed against. This sounds like a death knell on Issue 3, which is hereby resolved against the Appellant.

Let us shift attention to Issues 1 and 2, which border on the propriety of the amendment granted by the lower Court. Specifically, Issue 1 interrogates whether the Respondents (defendants) can amend their joint statements of defence in the consolidated suits by incorporating a counterclaim after the close of the Appellant’s (claimant’s) case; whilst Issue 2 focuses on whether the Respondents are at liberty to incorporate a counterclaim which raises issues of fact that arose after the issuance of the writ of summons in the consolidate suits by way of an amendment to their joint statements of defence. It is obvious that these two issues are intricately intertwined and can conveniently be considered together in order to conserve scarce judicial time and resource.

A cardinal principle of our jurisprudence is that Courts of law exist to decide the rights of parties before it and not to punish them for errors or mistakes they may make in the conduct of their cases by deciding otherwise than in accordance with their rights. The necessary corollary of the above principle is that a party may at any stage of the proceedings before judgment alter or amend his pleadings or endorsements as may be necessary for the purpose of determining the real question(s) in controversy in a case. There is no kind of mistake or error which, if not fraudulent or intended to overreach, the Courts cannot correct if this can be done without injustice to the other party; and even though blunders occur nowadays with disturbing regularity, a Court of law (which is also a Court of equity) imbued with a sense of justice should not suffer itself to be stampeded into chasing the shadows of these blunders rather than facing the substance of the justice of the case. See ADEKEYE v AKIN-OLUGBADE [1987] 3 NWLR (PT. 60) 214. 

The aim of an amendment is to prevent the manifest justice of a cause from being defeated or delayed by formal slips which arise from the inadvertence of counsel, and the Courts have through the years taken a stance that however negligent or careless the slip may have been or however late the proposed amendment, it ought to be allowed if this can be done without injustice to the other side, for a step taken to ensure justice cannot at the same time and in the same breath be used to perpetuate injustice on the adverse party. See ADEKEYE v AKIN-OLUGBADE supra.

A conspectus of decided cases reveals a general inclination or leaning by the Courts to grant an amendment save in situations where: (i) the amendment sought will occasion injustice to the other party; (ii) the applicant is acting mala fide; or (iii) the applicant has by his blunder done some injury to the respondent which cannot be compensated by costs or otherwise. See OJAH & ORS v OGBONI & ORS (1976) 4 SC 69, (1976) 1 NMLR 95 at 99, OKAFOR v IKEANYI (1979) 3 – 4 SC 99 at 106, OKEOWO v MIGLIORE (1979) 11 SC 138 at 197 & 199 – 200, ADETUTU v ADEROHUNMU (1984) 1 SCNLR 515, [1984] NSCC 389, KODE v YESUFU [2001] 4 NWLR (PT 703) 392, AJAKAIYE v ADEDEJI [1990] 7 NWLR (PT 161) 192 and ADELAJA v ALADE [1994] 7 NWLR (PT. 358) 537. 

Crucially, an amendment may be sought and granted at the close of the plaintiff’s case [see OKOLO v NWAMU (1973) 2 SC 59 at 68], and even if it is in consequence of an objection raised by the adverse party. See ITA v DADZIE [2000] 4 NWLR (PT 652) 168 at 181 (CA). 

In an application for amendment of pleadings, the Court will take into consideration a number of factors, including: (a) the attitude of the parties in relation to the amendment; (b) the nature of the amendment sought in relation to the suit; (c) the question(s) in controversy; and (d) the time when the amendment is sought. 

See ALSTHOM S. A. v SARAKI [2000] 14 NWLR (PT 687) 415.

​A party may substitute an entirely new pleading for an earlier one insofar as no injustice is occasioned to the adverse party, but an amendment that will enable the applicant plead a fact that was not in existence at the time of commencement of the action will not be allowed. See MOBIL OIL v COKER (1971) 1 NMLR 56 at 58. And just as a claimant will not be allowed to bring into his case an entirely fresh cause of action which arose after the action had commenced, a defendant will also not be allowed to raise by way of an amendment to the statement of defence a counter-claim in respect of a cause of action that arose subsequent to the issue of the writ: GOWON v IKE-OKONGWU [2003] 6 NWLR (PT 815) 38, (2003) LPELR-1336(SC) 1 at 9 and ESHELBY v FED. EUROPEAN BANK (1931) ALL ER 840. 

But an amendment, whenever granted by the Court, relates back to the date of the original process amended; and notwithstanding that the original process does not become otiose and the Court cannot shut its eyes against such old process because it still forms part of the Court processes which the Court is entitled to look at [see OWONYIN v OMOTOSHO (1961) 2 SCNLR 57, SALAMI v OKE [1987] 4 NWLR (PT. 63) 1 at 9, AGBAISI v EBIKOREFE [1997] 4 NWLR (PT. 502) 630 at 648, AGBAHOMOVO v EDUYEGBE [1999] 3 NWLR (PT 594) 170 at 182 – 183 and BALONWU v OBI [2007] 3 NWLR (PT 1028) 488 at 536], what stood before the amendment is no longer material before the Court and ceases to define the issues to be tried. See COL. ROTIMI v MACGREGOR (1974) 11 SC 133 at 152, OSITA NWOSU v IMO STATE ENVIRONMENTAL SANITATION AUTHORITY [1990] 2 NWLR (PT 135) 688, VULCAN GASES LTD v GESELLSCHAFT [2001] 9 NWLR (PT. 719) 610 and TSOKWA OIL MARKETING CO v BANK OF THE NORTH LTD (2002) 1 NSCQR 738 at 753.

The point to vigorously underscore is that even though the Courts are liberal in allowing amendments at any stage of the proceedings before judgment, the Courts have evolved different principles to govern applications for amendment made at different stages of the litigation. See DIAMOND BANK PLC v AMOBI UGOCHUKWU [2008] 1 NWLR (PT. 1067) 1 at 36. Whilst an amendment sought at the incipient stages of the litigation may readily be granted almost as a matter of course, the attitude of the Court is markedly different where an amendment is sought after either party has closed his case or both parties have closed their cases. But irrespective of the stage at which it is sought, the grant or refusal of an amendment is always guided by the imperative to dispense justice to the parties, having regard to the peculiar facts and circumstances of each case. Thus, whilst the defendants were allowed to amend their statement of defence after the plaintiffs had closed their case in OJAH & ORS v OGBONI & ORS supra, it was held in ADETUTU v ADEROHUNMU [1984] NSCC 389 at 396 that the trial Court was right in refusing an amendment that would allow the defendant set up fresh facts after the case went on trial and up to the time the plaintiffs closed their case. See also GEORGE v DOMINION FLOUR MILLS LTD (1963) 1 All NLR 71 (where an amendment that would change the nature of the case sought after the close of the claimant’s case was refused owing to the injustice or surprise it will occasion), as well as DIAMOND BANK PLC v AMOBI UGOCHUKWU supra at 37 wherein this Court (per Rhodes-Vivour, JCA as he then was) held that an application for amendment brought after the claimant had closed his case was rightly refused by the trial Court since the claimant would have been unable to call evidence on the new issues raised, thereby denying him fair hearing.
As there is undoubtedly a high tendency that an amendment sought very late in the day could overreach, or occasion injustice to, the adverse party, the Courts have evolved the principle that the only purpose for which an amendment could be allowed after the close of evidence by both parties is to bring the pleadings in conformity with the evidence led. See TAIWO v AKINWUNMI (1975) 4 SC 143, IBANGA v USANGA (1982) 5 SC 138, IMONIKHE v ATTORNEY GENERAL OF BENDEL STATE [1992] 7 SCNJ 197 at 207 at 208 and BAMISHEBI v OTE [1995] 8 NWLR (PT. 411) 1 at 9 – 11]. And even at that, the Courts act rather slowly and with utmost circumspection in order to avoid occasioning injustice to the adverse party. Indeed, in order for an application to amend pleadings at the close of evidence to succeed, the applicant must point at any piece of evidence on record which is capable of supporting the proposed amendment. See ADEAGBO v YUSUF [1990] 6 NWLR (PT 158) 588 at 591. Also, an amendment to bring pleadings in line with evidence should not be granted where the evidence led is already discordant with the pleadings. See OBINYIRUKA v ALICHE [1991] 4 NWLR (PT. 183) 87 at 99.

In the matter at hand, the trial Court granted leave to the Respondents (defendants) to amend their statement of defence to incorporate or subjoin a counterclaim after the close of the claimant’s case. At pp. 367 – 368 of the records, the lower Court held thusly:
“Having read all the processes for and against this application very carefully, it is my view that the aim of amendment is to prevent the manifest justice of a case from being defeated or delayed by formal slips which arise from the inadvertence of Counsel.
An amendment of pleadings can be granted at any stage of the pleadings provided it does not introduce a new cause of action or will overreach or is prejudicial to the other party. See THE SHELL PET. DEV. (NIG) LTD v AMBAH (supra).
If by an amendment a, the statement of claim will disclose a cause of action, the Court will grant an amendment sought, but the suit will be if an amendment cannot make the statement of claim, disclose a cause of action.

I have checked the amendment sought by the Defendant. It is to incorporate a counter claim to the defence of the Defendant. A counter claim to all intent and purposes is a separate action, for convenience and speed joins it with his defence.
The counter claim filed by the Defendant in the instance case which is a cross-action which is in the same position as an action, and it is subject to the rules of Court as pleadings. See DABUP v KOLO (1993) 9 NWLR (PT 317) 254 AT 270.
I HAVE CHECKED THE COUNTER CLAIM IT DISCLOSES CAUSE OF ACTION Against the Claimant, the Court will grant the amendment. Whether or not it will fly is another thing entirely.
I have find (sic) that the amendment sought by the Defendant will not create a new case, and will not cause injury to the Claimant that cannot be compensated by cost. Evidence in support of this amendment is already on record before the Court. See IMONIKHE v A-G BENDEL (1992) 6 NWLR (PT 248) 396 AT 409
The Claimant is at liberty to file a defence to the counter claim and recall his witnesses if need be.”

Now, there is no general rule against the grant of an amendment to incorporate a counterclaim after the close of the claimant’s case. As stated hereinbefore, the grant or refusal of an amendment is always guided by the imperative to dispense justice to the parties, having regard to the peculiar facts and circumstances of each case. Thus, leave to amend statement of defence to incorporate a counterclaim after the close of the claimant’s case was granted in FAYEMI v OLORUNFUNMI [1998] 1 NWLR (PT 534) 523. I reckon however that leave to amend would be refused where it seeks to incorporate a counterclaim that raises an entirely fresh cause of action that accrued after the issuance of the writ [see GOWON v IKE-OKONGWU supra]; or the amendment introduces matters that inflict surprise on a claimant who had closed his case and can no longer reply thereto [see BIODE PHARMACEUTICAL INDUSTRIES LTD v ADSELL (NIG) LTD supra, ADETUTU v ADEROHUNMU supra and GEORGE v DOMINION FLOUR MILLS LTD supra].

Against this backdrop, a careful and insightful examination of the records reveals that the amendment sought was to enable the Respondents subjoin a counterclaim against the Appellant for refund of payments made to him for survey work alleged to have been negligently done, which fact came to light after the institution of the suit. The main claim itself arose from services rendered by the Appellant to the Respondents in surveying their land, and the alleged negligence on the part of the Appellant are not fresh facts or issues per se. The counterclaim cannot therefore be said to entail fresh facts or raise a course of action that was not in existence at the time writ was issued. The payments the Respondents seek to recover by way of counterclaim were made long before the Applicant filed the consolidated suits, and the case of GOWON v IKE-OKONGWU supra upon which the Appellant has relied is patently inapposite and inapplicable

The law is well settled that a counterclaim, for all intents and purposes, is a cross-action, fresh and completely independent, separate and distinct from the one commenced by the original claimant, but triable with the main claim for reasons of convenience. See PETERSIDE v I. M. B. (NIG) LTD [1993] 2 NWLR (PT. 278) 712 at 731-732 and IGE v FARINDE [1994] 7 NWLR (PT. 354) 42. A counter-claim connotes “a claim for relief asserted against an opposing party after an original claim has been made, that is a defendant’s claim in opposition to or as a set-off against the plaintiff’s claim”: MAOBISON INTER-LINK LTD v U.T.C. (NIG.) PLC (2013) 9 NWLR (PT 1359) 197 at 209 –per Ariwoola, JSC (now Acting CJN). Quite unlike a set-off which is only considered as a shield, a counterclaim is both a shield and a sword available to a defendant who has “any claim” against the claimant whether or not arising from the same transaction or series of transactions. See Order 19 Rule 6, High Court of Lagos State (Civil Procedure Rules) 2019. A counterclaimant is therefore a claimant in his own right [see UNION BANK PLC v ISHOLA [2001] FWLR (PT. 81) 1868 at 1892], and like any other claimant in an action, he must prove his case in order for him to obtain judgment. See OBMIAMI BRICK & STONE LTD v ACB LIMITED [1992] 3 NWLR (PT 229) 260 at 298- 299, JERIC NIGERIA LIMITED v UNION BANK OF NIGERIA PLC [2001] 7 WRN 1 at 18, PRIME MERCHANT BANK v MANMOUNTAIN COMPANY [2000] 6 WRN 130 at 134, WALTER v SKYLL NIG. LIMITED [2000] 13 WRN 60 at 98, OGBONNA v ATTORNEY-GENERAL, IMO STATE [1992] 1 NWLR (PT 220) 647, NSEFIK & ORS v MUNA & ORS [2013] VOL. 12 MJSC (PT 1) 116, BILANTE INT’L LTD v NDIC [2011] 15 NWLR (PT 1270) 407, KOLADE v OGUNDOKUN [2017] 18 NWLR (PT 1596) 152 and ATIBA IYALAMU SAVINGS & LOANS LTD v SUBERU [2018] 13 NWLR (PT 1639) 387.

Taking cognisance of the fact that the counterclaim arose from the same course of action as the main claim and the Respondents did not seek to set up any fresh course of action that can be said to take the Appellant by surprise, the lower Court cannot be faulted for granting the amendment sought, notwithstanding that the Appellant had closed his case before the amendment was sought and granted. I take the considered view that the decision of the lower Court is consistent with the interest of justice and the principle that an amendment to enable matters in controversy between the parties to be completely adjudicated upon and all issues settled once and for all ought to be allowed. Especially is this so as the Appellant (claimant) is not foreclosed in any way from defending the counterclaim. As the lower Court pointed out in the ruling appealed against, “the Claimant is at liberty to file a defence to the counter claim and recall his witnesses if need be”.

This Court (per Uwaifo, JCA as he then was) held in FAYEMI v OLORUNFUNMI supra at 529 – 530 that a plaintiff in an action where a counterclaim is put by a defendant is also a defendant for the purposes of the counter-claim, and it is only after the counterclaimant (defendant) had closed his case that the claimant (as defendant to the counter-claim) is entitled to defend the counterclaim by putting in evidence in rebuttal notwithstanding the fact that he has closed his case as ‘plaintiff’. This aptly captures the scenario in this matter. Since it is only after the close of Respondents’ case on the counter-claim that the Appellant would be allowed to put in his defence to the counter-claim, I fail to see what injustice the amendment granted by the lower Court would occasion to the Appellant. It would have been a different thing entirely if the lower Court had refused an application by the Appellant (claimant) to put up a defence to the counterclaim or to reopen his case to enable him call evidence in rebuttal of the counterclaim raised by the Respondents (defence) after he had closed his case. Issues 1 and 2 ought to be resolved against the Appellant, and I so resolve them.

Conclusion
The resolution of all three issues for determination against the Appellant signposts the failure of this appeal, and I hereby record an order dismissing it for being bereft of merit. The ruling of the High Court of Lagos State delivered on 31/5/17 is affirmed. The parties shall bear and discharge their respective costs in this ill-fated appeal.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in advance, the leading judgment delivered by my learned brother: Peter Oyinkenimiemi Affen, JCA. I endorse in toto the judicial reasoning and conclusion in it. I, too, penalise the appeal with a deserved dismissal. I abide by the consequential orders decreed in the leading judgment.

ONYEKACHI AJA OTISI, J.C.A.: My learned brother, Peter Oyinkenimiemi Affen, JCA, made available to me a copy of the judgment, in draft form, in which this appeal was dismissed.

​I agree with, and adopt as mine the comprehensive resolution of the issues as done by my learned brother. I see no merit in this appeal. It is also dismissed by me. I abide by the orders made in the leading judgment.

Appearances:

Adeoye Adeyemi, Esq. For Appellant(s)

Sandra Idedia, Esq. For Respondent(s)