MINIMAH & ANOR v. IHEANACHO
(2022)LCN/17105(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Wednesday, September 07, 2022
CA/PH/485/2018
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Between
1. DR. MINIMAH 2. CHIEF JOSEPH CHIGBU (Sued For Themselves And As Representing The Landlords/Owners Of The Place Known As And Called Parkland Estate, Owule-Ejuan, Ejuan Community, Abuloma, Port Harcourt) APPELANT(S)
And
MR. FABIAN MADUAKOLAM IHEANACHO RESPONDENT(S)
RATIO
WHETHER OR NOT A PARTY CAN AMEND HIS STATEMNET OF DEFENCE AT ANY TIME BEFORE JUDGEMENT
Having considered the arguments of the parties for and against the issue of whether the trial Judge is right in holding that Appellants’ application for amendment of the statement of defence did not comply with the provisions of Order 24, Rule 3 of the Rules of the Rivers State High Court, 2010, I am inclined towards the argument of the Appellants that the law is trite that a party can validly amend his process before a Court at any time before judgment. That the Court would ordinarily grant such an amendment where it would allow the Court to effectively decide the dispute between the parties; that the amendment can even be made at appeal level, even at the Supreme Court. See Abah vs. Jabusco (2008) 3 NWLR (Pt. 1065) 526 AT 545. PER ABDULLAHI, J.C.A.
WHETHER OR NOT WHERE A COURT HAS JURISDICTION TO MAKE AN ORDER, THE FACT THAT THE POWER OF THE COURT IS INVOLVED UNDER A WRONG LAW OR RULE OF COURT IS REASON TO SET THE ORDER ASIDE
From the foregoing therefore, I am of the opinion that the refusal and dismissal of the application of the Appellants by the trial Court was not right just because of mere irregularity. See P.H.M.B vs. Edosa (2001) FWLR (Pt. 41) 1799 AT 1809, Para F.
For the avoidance of doubt, below are the words of the Supreme Court on this issue:
“…this Court is replete with multiplicity of decided authorities to the effect that a Court is entitled to grant an application brought under a wrong rule of Court or statute provided there is legal basis for it.” See Maja vs. Samouris (2002) FWLR (Pt. 98) 818 (2002) 9 NSQR 546 AT 567.
In fact, this Court had this to say in Uchendu vs. Ogboni (1999) 5 NWLR (Pt. 603) 337 AT 351 (1999) SCNJ 64 thus:
“It is trite that a particular rule of Court or law under which a motion is brought is generally stated in the motion paper but failure to do this will not make the motion incompetent nor the order upon which the motion is granted invalid, so long as there exist a rule of law which can back up the motion.”
Per Okoro JSC (Pp. 21-25, Para. F) in the case of Bode Thomas vs. Federal Judicial Service Commission (2016) LPELR-48124 (SC) has this to say: “…where a Court has jurisdiction to make an order, the fact the power of the Court is involved under a wrong law or rule of Court is no reason for not making the order or where it is made, it is no reason for setting it aside. See also the cases of Salawu Oke & Ors. vs. Musilim Aiyedun & Anor (1986) 2 NWLR (Pt. 23) 548, Dr. Maja vs. Mr. Costa Samouris (Supra) and Witt & Busch Ltd. vs. Dale Power Systems Plc. (2007) LPELR-3499 (SC).” PER ABDULLAHI, J.C.A.
RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of the High Court of Rivers State Port Harcourt Division delivered on 8th November, 2018 by Hon. C. Nwogu, J. in Suit No. PHC/1006/2017.
The Appellants/Applicants by a Motion on Notice dated and filed on 26th day of October, 2018 at the Court below, brought pursuant to Order 24 Rules 1 & 2 of the High Court (Civil Procedure) Rules 2010 and under the inherent jurisdiction of the honourable Court prayed for:
1) AN ORDER of this honourable Court granting the Defendants/Applicants leave to amend its Statement of Defence in terms of the proposed Amended Statement of Defence herein attached and marked as Exhibit A.
2) AN ORDER deeming the Amended Statement of Defence filed simultaneously with this application as duly filed and served, all filing fees having been paid.
3) Leave of this Court to file additional list of witnesses, witness deposition on oath of Defendants’ new witnesses; Elder Douglas Tekena, Surv. Needam Yiinu and Samuel Abel Jumbo, Esq., and additional list of documents.
4) Deeming the said additional list of witnesses, list of documents, and witness deposition filed along with this application as duly filed and served, appropriate filing fees have been paid.
The Application was supported by an affidavit of Eight (8) paragraphs deposed to by one Anthony Nwankwor, a legal practitioner in the law firm of Thompson Okpoko & Partners, the solicitor to the Defendant/Applicant. In response to the motion, the Claimant/Respondent filed a counter affidavit of Seven (7) Paragraphs deposed by one Mr. Fabian Maduakolam Iheanacho, a Claimant/Respondent on record on the 2nd day of November, 2018. The Appellants/Applicants filed a further affidavit of Eight (8) Paragraphs on the 7th day of November, 2018 together with a Reply on point of law dated on the 7th day of November, 2018.
The Appellants who are aggrieved with the ruling of 08/11/2022 dismissing the Appellants’ Motion on Notice for an order to amend Statement of Defence appealed to this Court via Notice of Appeal filed on the 19th day of November, 2018. It is anchored on two Grounds of Appeal with their particulars and reliefs sought.
The Record of Appeal was compiled and transmitted to the Court of Appeal on the 3rd day of December, 2018 in compliance with the Rules of Court. The Appellants’ Brief was dated and filed on the 5th day of December, 2018 while the Respondent’s Brief of Argument was filed on the 14th day of December, 2018 together with the Notice of Preliminary Objection and the Written Address but all were deemed as properly filed and served on the 9th day of June, 2022. The Appellant filed written address in opposition to the Respondent’s Notice of Preliminary Objection and the Appellant’s Reply Brief of Argument filed on the 24th day of December, 2018. A Preliminary Objection must be resolved first so that the Court does not embark on a futile adjudication where it does not have jurisdiction or where the matter before the Court is already dead. See Akere vs. Governor of Oyo State (2012) 12 NWLR (Pt. 1314) 240.
PRELIMINARY OBJECTION
The Respondent greeted the appeal with a Preliminary Objection on the ground that the appeal was filed without the leave of the High Court or the lower Court, contrary to Section 242(1) of the Constitution of the Federal Republic of Nigeria 1999; Section 14 of the Court of Appeal Act.
That Record of Appeal contravenes the provisions of Order 8 Rule 7(b) & (c) and Order 10 Rule 1(c) of the Rules of the Court of Appeal Rules, 2016.
Learned counsel for the objector formulated a sole issue for determination of the objection to wit:
“Whether this appeal is competent, without the leave of the lower Court or this Court or observation of Order 8 Rules 7(b) and (c) of the Court of Appeal Rules.”
In arguing the above objection, the Appellants raised two issues for determination to wit:
1) “Whether the leave of this Court or the High Court is required for this appeal to be filed”
2) “Whether the Records of Appeal was properly compiled and transmitted.”
A careful look at the above sets of issues shows that they are identical in substance and I therefore married them together as one issue.
The learned counsel for the Objector, Chief K. A. Mbamara, Esq., submitted that the appeal does not involve question of law alone. That the appeal is a mixture of law and fact. He placed reliance on the case of Anukam vs. Anukam (2008) 33 Nigeria Supreme Court Quarterly Law Report P. 1040 at P. 1069 and Nwadike vs. Ibekwe (1987) 4 NWLR (Pt. 67) p. 718. That it is the law that the Court should look at both the Grounds of Appeal and the Particulars of Error to decipher what is involved.
The learned counsel for the objector further contended that the Ground of Appeal involve a mixture of law and fact and fact will be put beyond doubt, if the Court considers the prayers sought by the Appellants, involves consideration and exercise of the discretionary powers of the Court. He cited the case of Kano Textile vs. Gloede & Hoff Ltd. (2005) 22 Nigeria Supreme Court quarterly Report P. 346 AT 354.
He also submitted that the Appellants never sought and obtained the leave of Court before filing the Notice of Appeal. That this appeal is incompetent. He cited the case of Oshatoba vs. Olujitan (2000) 5 NWLR (Pt. 655) P. 159, P. 172 Paras. B-D.
The learned counsel for the objector further submitted on the issue of improper record of appeal that the Appellants did not observe Order 8 Rules 7(b) & (c) of the Court of Appeal Rules in the compilation of the Record of Appeal. That there is no schedule of fee paid, thereby breached the Order 8 Rule 7(c) of the Court of Appeal Rules.
In conclusion, he urged the Court to dismiss the appeal based on the grounds in the preliminary objection.
In response to the objector’s submission, the learned counsel for the Appellants submitted that the appeal was filed pursuant to Section 241(1)(b) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and it is an appeal as of right and the Appellant does not require leave of either Court below or Court of Appeal. He cited the case of Enterprise Bank Plc. vs. Dan Dollars Oil (Nig.) Ltd. (2015) LPELR-24510 (CA) Page 17, Para C-D.
He further submitted that the two Grounds of Appeal are grounds of law alone. He referred to Pgs. 87-88 of the Record of Appeal and read as follows that the above ground of appeal qualifies as a ground of law going by the definition of a ground of law by the Supreme Court in the case of Fasuyi vs. PDP (2019) All FWLR (Pt. 972) 219 AT 240, Para E;
“A ground of law alone is a complaint against the lower Court’s misunderstanding of the law applicable to the facts which are either proved, admitted or undisputed.”
The learned counsel for the Appellants contended that the law is now trite that the application and non-application of undisputed facts is a question of law. He placed reliance on the case of Arinze vs. Afribank Plc. (2000) FWLR (Pt. 6) 1032 AT 1037, Paras. B-F, Ojemen & Ors. vs. Momodu & Ors. (1983) 3 S.C 173 and U.B.A Ltd. vs. Stahlbau Gmbh (1989) 3 NWLR (Pt. 110) 374 AT 399.
On the issue of improper record of appeal, the learned counsel to the Appellants submitted that the instant appeal is an interlocutory appeal and so it is the Court of Appeal Practice Direction, 2013 which should regulate it by virtue of the Provisions of Item 2(c) of the said practice Direction. That the compilation and transmission of Records of Appeal in respect of interlocutory appeals are guided by item 6(b) and (h) of the Court of Appeal Practice Direction, 2013. He cited the case of Martin Schroeder & Co. vs. Major & Company Nig. Ltd. (1989) All NLR 201 AT 208.
RESOLUTION OF PRELIMINARY OBJECTION
A preliminary objection is specie of objection which if sustained will render proceedings in the matter unnecessary. See APC vs. INEC (2015) 8 NWLR (Pt. 1462) 531. The Respondent’s Preliminary Objection seeks to terminate the Appellants’ appeal in limine that the appeal was filed without the leave of the High Court or this Court, contrary to Section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999; Section 14 of the Court of Appeal Act and the Record of Appeal also contravenes the Provisions of Order 8 Rule 7(b) and Order 10 Rule 1(c) of the Court of Appeal Rules, 2016.
I have carefully perused and deeply reflected on the respective submissions of parties on this preliminary objection, I have taken a particular countenance of the submissions made by the learned counsel for the Appellants in paragraph 3.3 of their Written Address in opposition to the Respondent’s Notice of Preliminary Objection that where the grounds of appeal are grounds of law alone, a party can appeal as of right without leave irrespective of the fact that the decision appealed from is interlocutory or final. See Enterprise Bank Plc. vs. Dan Dollars Oil (Nig.) Ltd. (2015) LPELR-24510 (CA) Page 17, Paras. C-D where the Court of Appeal held that:
“Also by the Provisions of Section 241(b) where the Grounds of Appeal involves questions of law alone, the appeal is also as of right in decisions of the Federal High Court or the High Court of a State no matter whether Courts aforementioned sit as Court of first instance or the decisions are interlocutory or final.”
In the instant appeal, I have visited the Grounds of Appeal enumerated in the Notice of Appeal at Pgs. 87-88 of the Record of Appeal and I am of the opinion that the Grounds of Appeal are purely grounds of law alone, which do not require the Appellants to seek leave of either the lower Court or Court of Appeal.
The criteria for distinguishing a ground of law alone from the one of mixed law and facts has been identified and settled by the apex Court for a long time now. The established principles for the purpose were restated by Muhammad, JSC in the case of Akinyemi vs. Odu’a Invest. Co. Ltd. (2012) 17 NWLR (1329) 209 AT 230-1, as follows:
(1) “The first and foremost is for one to examine thoroughly the grounds of appeal in the case concerned to see whether they reveal a misunderstanding by the lower Court of the law, or a misapplication of the law to the facts already proved or admitted.
(2) Where a ground complains of a misunderstanding by the lower Court of the law or a misapplication of the law to the facts already proved or admitted, it is a ground of law…”
Now, the Grounds of Appeal filed by Mr. O. J. Irerhime, Esq., learned counsel for the Appellants are as follows:
GROUNDS OF APPEAL
1. The learned trial Judge erred in law in holding that the Appellants’ motion for leave to amend did not comply with the provision of Order 24 Rule 3 of the High Court of Rivers State (Civil Procedure) Rule, 2010, when:…
PARTICULARS OF ERROR
i. The Defendant exhibited to the motion, the proposed amended Statement of Defence as required by the rules.
ii. A list of the additional witnesses, depositions on oath of the additional witness and a list as well as copies of the documents to be relied upon which Defendants filed simultaneously with the motion on 26/10/2018, complied with the provisions of Order 24, Rules 3 of the Rules of Court.
2. The learned trial Judge erred in law and thereby occasion a miscarriage of justice in dismissing the Appellants’ motion to amend for alleged failure to comply with the provisions of the rules, rather than striking it out, when:…
PARTICULARS OF ERROR
i. By Order 5 Rule 1 of the Rivers State High Court (Civil Procedure) Rules, 2010, such non-compliance is a mere irregularity which can be corrected.
ii. By Order 24 Rule 1 of the High Court (Civil Procedure Rules, 2010, a party can amend its pleading at any time before judgment.
iii. The appropriate order to be made where there is a non-compliance with the rules is that of striking out.
iv. If at all, there was non-compliance with the rules, the Claimant waived it when he joined issues with the Defendants on the motion to amend without raising the issue of non-compliance.
3. Further grounds of appeal may be filed upon receipt of the records of appeal.
Flowing from the above Grounds of Appeal and Particulars therein, are purely grounds of law alone, it is complain against the error of lower Court where it was held that motion for amendment of statement of defence does not comply with the Order 24 Rule 3 of the High Court Rules, 2010, as it was stated in the ruling of the lower Court as follows: “I have perused the Defendant’s Motion on Notice and the supporting documents; it does not comply with Order 24(3) Rules of High Court, 2010. Prayers 2, 3, and 4 are most inappropriate.”
In the case of Fasuyi vs. PDP (Supra) cited by the Appellants’ counsel where the Supreme Court defined grounds of law alone as:
“A ground of law alone is a complaint against the lower Court’s misunderstanding of the law applicable to the facts which are either proved, admitted or undisputed.”
I hold that the Appellants’ appeal was filed in total compliance with Section 241(1)(b) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Therefore, it is an appeal as of right and the Appellants does not require leave to appeal to this Court.
In the light of this, the preliminary objection which the objector raised to terminate the Appellants’ appeal in limine is bereft of any morsel of merit. Accordingly, the preliminary objection is overruled and dismissed.
CONSIDERATION OF THE APPEAL
During the hearing of the appeal, learned counsel for the Appellants O. J. Irerhime, Esq., adopted the Appellants’ Brief of Argument filed on 05/12/2018 and Appellants’ Reply Brief filed on 24/12/2018. He urged the Court to allow the appeal and set aside the ruling of the trial High Court.
The Respondent’s brief was settled by Chief K. A Mbamara dated 13/12/2018 and filed on 14/12/2018 but deemed argued on 09/06/2022 in the absence of the learned counsel of the Respondent after hearing notice was served on him on 7th of June, 2022 but failed to appear.
In the Appellants’ Brief of Argument, he distilled one issue for determination to wit:
“Whether the learned trial Judge is right in holding that Appellants’ application for amendment of the statement of defence did not comply with the provisions of Order 24, Rule 3 of the Rules of Rivers State High Court.” (Based on Grounds 1 and 2 of the Grounds of Appeal)
The Respondent in his Brief of Argument crafted two issues for determination to wit:
1) “Whether the learned trial Judge is not right in dismissing the application for amendment.
2) Whether the Appellants have made out any case to warrant grant of the prayers sought herein.” A careful look at the above sets of issues shows that they are identical in substance. Indeed, the Respondent’s two issues can be subsumed under the Appellants’ issue. I therefore marry them together as one issue framed by the Appellants’ counsel.
ISSUE ONE
This issue one is predicated on whether the learned trial Judge is right in holding that Appellants’ application for amendment of the statement of defence did not comply with the Provisions of Order 24 Rule 3 of the High Court of Rivers State (Civil Procedure) Rules, 2010.
The Appellants’ counsel submitted that the grant or refusal of an application for leave to amend a party’s pleading is at the discretion of the Court and it is required to be exercised judicially and judiciously. He referred to the case of Mamman vs. Salaudeen (2005) 18 NWLR (Pt. 958) 478 @ 504, Paras. B-E thus:
“Generally speaking the law is that an amendment to pleadings for the purpose of determining the real issues in controversy between the parties ought to be allowed at any stage of the proceedings, including on appeal, unless such amendment will result in injustice or surprise or embarrassment to the other party or the applicant is acting mala fide or by his blunder the applicant has done some injury to the Respondent which cannot be compensated by way of costs or otherwise. In short, a consideration by way of application for leave to amend pleadings involves the exercise of discretion by the Court and must not only act judicially but also judiciously. The discretion is therefore to be exercised so as to do what justice and fair play may require having regards to the facts and circumstances of the particular case.” and the case of Jessica Trading Company Ltd vs. Bendel Insurance Company Ltd. (1993) 1 NWLR (Pt. 271) 538.
He further submitted that the reason given by the Lordship for the dismissal of Appellants’ motion for amendment of their statement of defence is stated by him at page 85 of the records as follows:
“I have perused the Defendants’ Motion on Notice and the supporting documents, it does not comply with Order 24(3) Rules of High Court, 2010. Prayers 2, 3, and 4 are most inappropriate.”
That His Lordship went further at page 86 of the records to hold as follows: “The application not been (sic) in compliance with the Rules of Court quoted above lacks merit. This application is a mere delay tactics to frustrate proceedings in this matter.”
The Appellants’ counsel contended that the Appellants’ motion to amend its statement of defence was filed on 26/10/2018. That to comply with the Provisions of Order 24 Rule 3 therefore, applicants need to file along, a list of any additional witness to be called, together with his deposition on oath and a copy of any document to be relied upon as a result of the amendment. That he submitted that the applicant complied fully with the above requirements thus:
“a. At page 55 of the records is an “Additional list of witness”. The stamp of the registry on it shows clearly that it was filed on 26/10/2018, the same date of filing the application to amend.
b. At pages 56-62 are the witnesses statements (depositions) of witnesses to be called pursuant to the amendment. They bear the stamp of the lower Court registry date 26/10/2018 as the date they were filed.
c. At pages 63-70 of the records is “additional list of documents” with the listed documents attached thereto. The list and attached documents were also filed on 26/10/2018 as the stamp of the registry on them will testify.”
Counsel for the Appellants also submitted that when a Court raises a point suo motu and basis his decision on it, he is duty bound to call on the parties, especially the party who would be adversely affected by the decision to address him on the point, otherwise the decision is a nullity for violation of the party’s right to fair hearing. He cited the case of Shasi & Ors. vs. Smith & Ors (2009) 18 NWLR (Pt. 1173) 330 AT 346, Para. B-C.
He argued further that the Courts have since moved away from technicality to ensure the doing of substantial justice. He placed reliance on the case of P.H.M.B vs. Edosa (2001) FWLR (Pt. 41) 1799 AT 1809 Para. F and Afolabi vs. Adekunle (1983) NSCC, Vol. 14, 398 AT 405, lines 25-29.
In conclusion, Appellants’ counsel urge the Court to allow the appeal, set aside the decision of the Court below dated 8th November, 2018 and grant the application to amend the statement of defence.
In response, learned counsel for the Respondent submitted that the application of the Appellants for amendment of statement of defence did not comply with the provisions of Order 24, Rule 3 of the Rules of High Court Rivers State, 2010. He referred to the case of First Bank of Nigeria Plc. vs. Abraham (2008) 12 SC (Pt. 111) 108 AT 126 lines 1-6. That what the said Order 24(3) require is to attach and file the motion on notice together with the affidavit, proposed amendment, list of any additional witness to be called, his written statement on oath and a copy of any document to be relied upon. That in this case, the Appellants’ motion was filed separately with an affidavit, with the proposed amended statement of defence as the exhibit, while the Amended Statement of Defence was separately endorsed, initiated and assessed by the process registrar with the other documents such as list of document and witness deposition.
He contended that the party must obtain order for amendment first under Order 24 of the High Court (Civil Procedure) Rules before filing the amended process. That it is not correct for the Appellants to say that the Court raised the issue of Order 24 of the High Court rules and the inappropriateness of prayers 2, 3, and 4 suo motu. He cited the case of Dalek Ltd vs. OMPADEC (2007) 29 Nigeria Supreme Court Quarterly Report 1706 AT 1740 and Ikenta Best Ltd vs. A.G Rives State (2008) 33 Nigeria Supreme Court Quarterly Report P. 1073 AT P. 1106, Ratio 3.
On issue two of the Respondent’s Brief which is predicated on whether the Appellants have made out any case to warrant grant of the prayers sought in this Court. That the Appellant have not shown the Court that they have met the conditions for amendment to warrant asking this Court to grant their application for amendment. He cited the case of Sabrue Motors Nig. Ltd. vs. Rajab Enterprises Nig. Ltd. (2002) 4 SCNJ 270 AT 282.
Learned counsel for the Respondent submitted that the Appellants applied all manner of delay to delay and frustrate the trial of the case at the lower Court. That they filed their statement of defence almost one year after they were served with the claims and sought series of adjournment. He cited the case of Okon Udo Akpan vs. The State (1991) 5 SCNJ 1 AT 13.
He urged the Court to discountenance the argument canvassed by the Appellants and resolve the issues in favour of the Respondent.
The Appellants’ Reply Brief is unnecessary because the Respondent did not raise any new issue that requires to be responded to. The essence of reply brief is to give the Appellants an opportunity to react to new issues in the Respondent’s Brief of Argument. In the instance case, the circumstance does not arise and therefore it is needless to consider the reply brief. It is discountenanced. See Eromosele vs. FRN (2018) NWLR (Pt. 1629) 60.
RESOLUTION OF ISSUES
Having considered the arguments of the parties for and against the issue of whether the trial Judge is right in holding that Appellants’ application for amendment of the statement of defence did not comply with the provisions of Order 24, Rule 3 of the Rules of the Rivers State High Court, 2010, I am inclined towards the argument of the Appellants that the law is trite that a party can validly amend his process before a Court at any time before judgment. That the Court would ordinarily grant such an amendment where it would allow the Court to effectively decide the dispute between the parties; that the amendment can even be made at appeal level, even at the Supreme Court. See Abah vs. Jabusco (2008) 3 NWLR (Pt. 1065) 526 AT 545.
It is pertinent to note that an amendment of pleadings will be refused where if granting of it will entail injustice to the Respondent or where the Applicant is acting mala fide or whereby his blunder has done some injury to the Respondent that cannot be compensated by costs or otherwise. See Ojah vs. Ogboni (1976) 1 NMLR 95 AT Pg. 96 Paras. C-D.
There is nothing in the instant appeal to suggest that the grant of the application of the Appellants for amendment of statement of defence will entail injustice to the Respondent. There is therefore no basis for the trial Court to refuse the application of the Appellants to amend their pleading.
I have gone through the printed Record of Appeal transmitted to this Court that the only sole reason given by the learned trial Court in his ruling delivered on 18/11/2018 for the refusal and dismissal of the Appellants’ application for the amendment of their statement of defence, as can be seen at Pages 85-86 of the record as follows:
“I have perused the Defendants motion on notice and the supporting documents; it does not comply with Order 24(3) Rules of the High Court 2010. Prayers 2, 3 and 4 are most inappropriate.”
From the foregoing therefore, I am of the opinion that the refusal and dismissal of the application of the Appellants by the trial Court was not right just because of mere irregularity. See P.H.M.B vs. Edosa (2001) FWLR (Pt. 41) 1799 AT 1809, Para F.
For the avoidance of doubt, below are the words of the Supreme Court on this issue:
“…this Court is replete with multiplicity of decided authorities to the effect that a Court is entitled to grant an application brought under a wrong rule of Court or statute provided there is legal basis for it.” See Maja vs. Samouris (2002) FWLR (Pt. 98) 818 (2002) 9 NSQR 546 AT 567.
In fact, this Court had this to say in Uchendu vs. Ogboni (1999) 5 NWLR (Pt. 603) 337 AT 351 (1999) SCNJ 64 thus:
“It is trite that a particular rule of Court or law under which a motion is brought is generally stated in the motion paper but failure to do this will not make the motion incompetent nor the order upon which the motion is granted invalid, so long as there exist a rule of law which can back up the motion.”
Per Okoro JSC (Pp. 21-25, Para. F) in the case of Bode Thomas vs. Federal Judicial Service Commission (2016) LPELR-48124 (SC) has this to say: “…where a Court has jurisdiction to make an order, the fact the power of the Court is involved under a wrong law or rule of Court is no reason for not making the order or where it is made, it is no reason for setting it aside. See also the cases of Salawu Oke & Ors. vs. Musilim Aiyedun & Anor (1986) 2 NWLR (Pt. 23) 548, Dr. Maja vs. Mr. Costa Samouris (Supra) and Witt & Busch Ltd. vs. Dale Power Systems Plc. (2007) LPELR-3499 (SC).”
Generally, Orders and Rules of Courts are made to be obeyed. However, a Court has the power to bend its rules, where such rules will cause injustice. Denying the case/application of a party over an issue that the Court has powers brought under a wrong order or Rules of the Court will do injustice. After all, clients should not be allowed to suffer due to mistakes of their lawyers. Justice should be above mere legal jargons and technicalities. This is part of the reasons why the effect of an application brought under a wrong order or rule of Court is that the application is valid and as good as one brought under a correct order of rules of Court.
Flowing from the above, I therefore hold that this appeal is meritorious and is accordingly allowed.
Appellants had prayed for the grant of the motion for amendment of the Statement of Defence dated and filed on 26th day of October, 2018. In keeping with the provisions of Section 15 of the Court of Appeal Act, 2004 and Order 4 Rules 3 & 4 of the Court of Appeal Rules, this Court has power to give any such relief that the trial Court was expected to give, which the justice of the case demanded. Having held that the trial Court was wrong to have refused the application for amendment of the Statement of Defence by the Applicants, it is needful to set aside the ruling of the trial Court and to replace it with an order of grant of that application.
Accordingly, the ruling of the trial Court is hereby set aside and the application of the Defendants/Applicants to amend their Statement of Defence in line with the proposed Amended Statement of Defence exhibited to the motion for amendment, filed on 26/10/2018 is hereby granted. Defendants/Applicants shall file the said Amended Statement of Defence, forthwith, at the lower Court and serve same on the Respondent who shall be free to file a reply to the Amended Statement of Defence, if any, for the hearing of the suit on the merit.
Parties shall bear their respective costs of this appeal.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Abdullahi, JCA. with nothing extra to add.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I had the opportunity of reading in draft the judgment just delivered by my learned brother, RIDWAN MAIWADA ABDULLAHI, J.C.A.
His Lordship has exhaustively analyzed the two issues involved in the appeal. I completely agree with his reasoning and conclusion.
The appeal is meritorious and is allowed. I abide by the consequential orders made therein.
Appearances:
O. J. Irerhime, Esq. For Appellant(s)
Respondent’s counsel served with Hearing Notice on 07/06/2022 but failed to appear. For Respondent(s)
