MR. IGNATIUS NZEKWU & ANOR v. MR. IKEM ORANYE & ANOR
(2013)LCN/5859(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of January, 2013
CA/E/385/2012
RATIO
“…In other words, in line with the submission of learned counsel for the Respondents at page 8 para. 3.08 of the Respondents’ Brief and the authority of Anason Farms Ltd. v. NAL Merchant Bank (1994) 3 NWLR (Pt.331) 241 at 255 Paras. D-E; where Tobi, JCA (as he then was), in his lead judgment relying on the authorities of Uzoukwu v. Ezeonu II (1991) 6 NWLR (Pt.2000) 708; Mofam Farms & Food Ind. Ltd. v. I.B.W.A. (1991) 6 NWLR (Pt. 205) 603. Jubril v. Eje (1992) NWLR (Pt.255) 631 and Bedding Holdings Ltd. v. N.E.C. (1992) NWLR (Pt 260) 428; restated the position of the law that: “Let me take as the last point, the issue raised by the Appellant that facts deposed to in an affidavit not controverted are taken in law as admitted. The general position of the law, is as stated by learned Counsel for the Appellant and it is that uncontroverted or uncontradicted depositions in affidavits are deemed to be correct and so admitted in evidence” Per AGUBE, J.C.A.
“The law is settled on a plethora of authorities too numerous to mention some which have been rightly cited by the Learned Professor but suffice it to say that he was on very firm ground when he anchored the reason for the amendment sought on the need to bring all the live issues before the Court below to enable them be effectually and effectively determined once and for all instead of the piecemeal procedure of filing separate “further defence” or “further Reply” as suggested by the learned counsel for the Respondents. This is because the Supreme Court had long laid it down in the celebrated case of Oja & Ors. v. Ogboni & Ors. (1978) 1 NWLR 95; that as a general rule, an amendment under our Rules of Court will be granted “for the purpose of determining in the existing Suit the real questions or question in controversy between the parties”; and that amendment should be allowed unless – “(a) it will entail injustice to the Respondent; (b) the Applicant is acting mala fide or by his blunder, the Applicant has done some injury to the Respondent which cannot be compensated by costs or otherwise”. The apex court in that case also approved the principle enunciated in the often-cited English case of Cropper v. Smith (1884) 2 CH. D. 700, 710 770 and 711 per Bowen, L.J. who posited inter alia that:- “I think it is well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes which they make in the conduct of their cases by deciding otherwise than in accordance with their right. I know of no kind of error or mistake which if not fraudulent or intended to over reach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy and I do not regard such amendment as a matter of favour or grace. It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice as anything else in the case is a matter of right.” It is the above cited dictum of the learned Law Lord that has been encapsulated in most of our Rules of Court on amendment and followed by the Courts of this land over the years in cases like Oguntimehin v. Gubere (1964) 1 ALL NLR 176; Amadi v. Thomas Aplin & Co. Ltd. (1972) 1 ALL WLR 409; Emegokwe v. Okadigbo (1973) 1 ALL NLR (Pt.1) 379; Imonikhe v. A.G. Bendel State (1992) 6 NWLR (Pt.248) 409 and 412 per Nnaemeka Agu and Karibi-Whyte, JJSC; FBN (NIG) PLC. v. M.O. Kanu (1999) 9 NWLR (Pt.619) 484, 499 per Rowland & Onalaja, JJCA; UBN PLC. V. Sparkling Breweries Ltd. (1997) 3 NWLR (Pt.491) 29 at 50; Akaninwo v. Nsirim (2008) NWLR (Pt.1093) 439 at 446 and Ndefo v. Obiesie (2000) 15 NWLR (Pt.692) 820 at 845;some of the above cases which were rightly cited by the learned Counsel to the Respondents and all which have established that our courts have always allowed amendments of pleadings at any stage of the proceedings and sometimes even after the cases of the parties have been closed to bring the amendment in tandem with the evidence led in order to place all the live issues before the Court to be effectually and effectively tried and determined. Of course, the only inhibiting factors are that injustice or injury should not be occasioned the other party nor should he be overreached and that such amendment should not change completely the character of the cause of action from what it was at the inception of the case nor should the amendment be made in bad faith. See the recent cases of Popoola v. Babatunde (2012) 7 NWLR (Pt.1299) 302 at 326-327 per Okoro, JCA (as he then was), Kanubi v. Olagunju (2013) 8 WRN 98 at 114 – 115 lines 40 – 35 per Mbaba, JCA who reasoned, and rightly too, that an amendment which is intended to change the nature of the case before the Court will generally be refused because it is not made bonafide but mala fide and intended to over reach the other party. Oladiti v. Sangas Co. Ltd. (1994) 1 NWLR (Pt. 321) 433 cited with approval. See further Abah v. Jabuso (2008) 3 NWLR (Pt.1065) 526; Kade v. Yusuf (2001) 14 WRN 153; Laguro v. Toku (1992) 2 NWLR (Pt.223) at 278 and WorldGate Ltd. v. Senbanjo (2000) 4 NWLR (Pt.654) 699.” Per AGUBE, J.C.A.
“Order 15 Rule 19(1) and (2) provide thus:- “(9)(1) where pleading subsequent to reply is not ordered, then, at the expiration of 7 days from the service of the defence or reply (if a reply has been filed) pleadings shall be closed. “(2) Where a pleading subsequent to a reply is ordered, and the party who has been ordered or given leave to file same fails to do so within the period limited for the purpose, then, at the expiration of the period so limited the pleadings shall be deemed closed.” Again this provision is in tandem with Order 17 Rule 14 that pleadings can be ordered subsequent to a Reply and after the expiration of the time stipulated by the Rules, leave can be granted under Order 17 Rule 14 of the Rules upon the Application of any of the parties to either file a Further Defence upon fresh facts having arisen or come to the knowledge of the Defendant or the Plaintiff who may file a Further Reply not necessarily but could be from fresh facts which might have arisen from the Further Defence back and forth until pleadings, subject to the time limited by the Court or Rules are finally settled. It seems to me that the filing of “Further Defence” or “Further Reply” as envisaged by Order 17 Rule 14 of the Anambra State High Court (Civil Procedure Rules) 2006, does not entail filing separate processes so headed side by side with the pending Statement of Defence or Reply earlier filed as argued by the learned Counsel for the Appellants. The filing of fresh processes to improve the earlier ones filed would necessarily entail the amendment of the original process filed in the Registry of the Court. For instance, the learned Counsel to the Respondent has argued that fresh facts had come to the knowledge of the Respondents and they intended to improve on their pleadings hence the need to amend their statement of Defence by firing the Proposed Amended statement of Defence. Once the leave was granted them to file the Amended statement of Defence, then, the Amended Statement of Defence so filed, supersedes the original Statement of Defence earlier filed and served on the Appellant and if the Appellant is subsequently granted leave to fire a Further Reply, this will supersede the Reply to the Statement of Defence earlier filed and the fresh Reply could be tagged “Amended Reply Consequent Upon the Amended Statement of Defence”, and issues would be joined at the pre-trial conference. After all, the effect of amendment is that it goes back to the date of the original document which is amended. In Osita Nwosu V. Imo State Environmental Sanitation Authority (1990) 4 S.C.N.J. at 126, Agbaje J.S.C. held, relying on the English cases of Sneade v. Wotherton (1904) 1 K.B at 297; Warner v. Sampson (1959) 1 K.B. 297 and Warner v. Sampson (1959) 1 K.B. 321, that: “As regards pleadings once they are amended what stood before the amendment is no longer material before the Court and no longer defines the issue to be tried.” See also Oputa, JSC in Awote v. Owoduni (1986) 5 NWLR (Pt.56) 941 (1986) S.C. 294, FBN v. Tsokwa (2000) 13 NWLR (pPt.685) 521 at 530 and the recent case of Kanubi V. Olagunji (Supra).” Per AGUBE, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
1. MR. IGNATIUS NZEKWU
2. MR. GREGORY AMAECHI NZEKWU (For themselves and as Representing the King Nwabufo-Eze Idi Odoje family of Odoje Ubene Appellant(s)
AND
1. MR. IKEM ORANYE
2. EZENNA RAYMOND MACHIE Respondent(s)
IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This is an interlocutory Appeal against the Ruling of the Honourable Justice Celine o. Nweke (Administrative Judge) of the Onitsha Judicial Division of the Anambra State High Court of Justice, which Ruling was delivered on the 19th of July 2012, granting the Respondents’ Application for leave to amend their Statement of Defence; an order deeming the Amended Statement of Defence – Exhibit B annexed to the Motion as properly filed and served and leave of the court to file list of additional witnesses as per Exhibit ‘C’ as well as Additional Document and written Statements on Oath – Exhibits ‘D’ ‘E’ ‘F’ and ‘G’.
It would be recalled that the grant of the above prayers was sequel to a Motion on Notice brought pursuant to Order 24 Rules 1 to 5 of the High Court of Anambra State (Civil Procedure) Rules, 2006.
The facts leading to this Appeal as stated by the Appellants are that they instituted an action against the Respondents on the 2nd day of August, 2011 and upon being served with the originating processes, the Respondents filed their Statement of Defence, accompanied by written depositions, List of documents etc, on the 12th of December, 2011. The Appellants also upon receipt of the Statement of Defence and accompanying documents filed their Reply thereto on the 1st day of February, 2012. Pages 1 – 29 of the Records refer.
Upon being served with the Appellants, Reply, the Respondents filed an Application by way of motion as earlier highlighted seeking to amend their statement of Defence but the court, according to the Appellants, refused the Appellants leave to consequentially amend their Reply. Pages 30 – 105, 119 – 122 and 123 – 132 of the Records refer. Being dissatisfied with the Ruling of the learned trial Judge, they have appealed to this Honourable Court by a Notice of Appeal with three Grounds dated and filed on the 1st of August, 2012.
The gravamen of the Appellants’ case is that the Statement of Defence cannot be amended so as to respond to the Reply as the High Court (Civil Procedure). Rules of Anambra State 2006, make no provision for a statement of Defence to answer to a Reply, which was filed, subsequent to it. They (Appellants) therefore posit that the trial Court erred in law in allowing the amendment and further erred, when it refused the Appellants to make a consequential amendment to it.
The case for the Respondents on the other hand, is that in the course of the motion for amendment, the Appellants/Plaintiffs did not file any Counter-affidavit but relied on a Written Address on point of law and urged the Court to refuse the Application as it would amount to a response or Reply to a Reply which is the aspect of the case of the Appellants at the lower court upon which the Appeal is predicated. According to the Respondents, they in their response on point of law relied on Order 15 Rules 15 and 19, order 17 Rule 14 and Order 5 of the Anambra State High Court (Civil Procedure) Rules, 2006 as additional authorities to Order 24 Rules 1 – 5 on which Application for amendment was originally anchored.
One other point that was made by the Respondents on the statement of the facts of the case is that upon the Ruling of the Court on the motion, the Appellants, in the absence of counsel to the Respondents/Defendants made an oral application for leave to file a further Reply but the Court directed that the application should be by way of motion and not that the learned trial Judge refused the Application for consequential amendment as purported by the learned Counsel for the Appellants.
The Record of Appeal having been transmitted hereto and the Appeal entered, the learned counsel for the respective parties exchanged their Briefs of Argument in line with our Rules. In the Brief of Argument settled by Chudi Obieze Esq. on behalf of the Appellants, he distilled a sole Issue as calling for determination couched thus:
“Whether the trial High Court, was right in allowing the amendment of the Statement of Defence, in order to respond to Issues, allegedly newly raised, in the Reply to the Statement of Defence?”
As for the Respondents, Professor C.O. Obiozor of Counsel who settled their Brief of Argument formulated two Issues for determination as follows:-
“1. Whether there was a decision of the lower court on the oral request for leave to file further Reply by Counsel for the Appellants to ground an Appeal.
“2. Whether a Defendant could adduce additional pleadings after Reply by way of amendment of the Statement of Defence and whether such amendment is permissible under Order 24 of Rules 1 – 5, Order 15 – Rule 15; Order 15 Rule 19(2) and Order 17 Rule 14 of the High Court of Anambra State (Civil Procedure) Rules 2006”.
ARGUMENTS OF COUNSEL ON THE ISSUES FORMULATED.
Upon a careful perusal of the Issues formulated by the respective learned Counsel, I propose to determine this Appeal on the one Issue formulated by the learned Counsel for the Appellant and since Issue Number 1 of the Respondents is formulated from Ground Three of the Grounds of Appeal we shall allude to it in the course of this Judgment since the learned Counsel for the Appellant has married the sole Issue to all the Three Grounds of Appeal. (See page 2 paragraph 6 of the Appellants’ Brief).
ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANTS ON THE SOLE ISSUE
In his arguments on the Sole Issue, the learned Counsel alluded to the facts of the case which culminated in this appeal and the Ruling of the Court following the arguments of both learned Counsel on the motion for amendment as filed by the Respondents. He reproduced some of the salient aspects of the ruling of the learned trial Judge and submitted that the usual practice as provided in the High Court procedure Rules is that when a Plaintiff files his Statement of Claim, the Defendant shall upon service on him of same, file his Statement of Defence and that the Plaintiff thereafter, if necessary, files his Reply to the Statement of Defence. The Statement of Defence, he noted, is a response to the Statement of Claim while a Reply is response to new issues introduced by the Statement of Defence.
In the learned Counsel’s view, a Statement of defence should not respond to a Reply. Accordingly, it was submitted on the above premises that the learned trial Judge completely misunderstood the basis for their (Appellants) objection to the Respondents’ Application. He noted that in the first place parties are bound by the Reliefs, being sought on the face of their Application before the Court. Reference was then made to the Reliefs sought in the motion paper to submit that the Application before the Court was one for amendment simpliciter brought pursuant to Order 24 Rules 1 – 5 of the Anambra State High Court (Civil Procedure) Rules, 2006 but does not fall within the purview of Order 17 Rule 14 of the Rules which has a completely different procedure. He went on to enumerate the condition under which an Application can come under the purview of Order 17 Rule 14 and submitted that the Further Defence or Further Reply to be filed pursuant to leave granted by the Court under Order 17 Rule 14 of the Rules will have to be in a separate document headed “Further Defence or “Further Reply” and not by amending the existing Statement of Defence or Reply.
The learned Counsel for the Appellants asserted that from the foregoing, the Respondents could not have, based on the Application they filed in the lower Court, obtained a Relief under Order 17 Rule 14 of the High Court (Civil Procedure) Rules of Anambra State, 2006 because those were not what they sought for the Court to do for them. He drew our attention to the argument of the Respondents in their Reply on points of Law in the lower Court that paragraphs 4, 6, 7, 9 and 10 of the Appellants’ Reply to the Statement of Defence raised new matters/facts not contained in the Statement of Defence and that the amendment sought raised additional facts of defence as provided by Order 17 Rule 14 of the Rules. Furthermore, the Respondents were said to have contended that Order 15 Rule 19(2) of the said Rules allowed them to file Additional pleadings which was the purport of their Application. These arguments, the learned Counsel for the Appellants posited, is an acknowledgement by them, that what they ought to have done was to apply to deliver a Further Defence and not apply to amend the existing defence.
Secondly, it was submitted that it is only if and only if the Plaintiff in his Reply raised new issues that the Defendant may apply pursuant to Order 17 Rule 14 Supra for leave of Court to deliver ‘Further defence’ and upon grant of leave to so do, that Order 15 Rule 19(1) and (2) of the Rules with respect to pleadings subsequent to Reply will apply. The said Order 15 Rule 19(1) and (2) of the Rules were then reproduced to further submit that the Affidavit in support of the motion did not disclose that new issues had been raised in the Plaintiffs/Appellants, Reply.
Such Application, he further submitted must be granted on Affidavit deposing to sufficient facts that would persuade the Court to exercise its discretion to either allow or refuse on application for an amendment. N.A. Williams v. Hope Rising, (1982) ANLR 1 at 7 Para. 2 was cited on the poser by the Court on what the Respondents would do where the Appellants raised new facts in their Reply submitting that the Court relied on the Address on points of Law filed by the Respondent as if it were evidence.
The learned Counsel for the Appellant also contended that the Respondents failed to comply with the provisions of Order 17 Rule 14 and the Application was therefore incompetent and that by allowing the Respondents the amendment thereby making the Statement of Defence to respond to the Reply, the trial Court committed a procedural blunder which made the Rules of Court nonsensical. Ojong v. Duke (2003) 14 NWLR (Pt.841) 581 at 618 Paras. C – D N.H INTL. S.A. V. N.H.H. Ltd. (2007) 7 NWLR (Pt 1032) 86 at 114 per Odili; JCA (now JSC) on the need to adhere to the procedure laid down by statute in doing of an act and the need to obey Rules of Court in order to serve the purpose for which they are made, were cited and relied upon in submitting further that the Court ought to have directed the Respondents to do the proper thing by applying order 17 Rule 14 in order to have discovered from the material placed before him by the parties whether there will be need to deliver a Further Defence and/or Further Reply for justice to be done to the parties.
It was also the contention of the learned Counsel to the Appellants that had the proper thing been done by the Respondents, the court below could not have relied on the arguments of Respondents’ counsel that the Appellants’ paragraphs 4, 6, 7, 9 and 10 of their Reply to the Statement of Defence raised new matters not raised in the Statement of Defence.
He maintained that if the Respondents’ Application were to be proper with facts stating that new issues were raised in the Reply to the statement of Defence they (Appellants) would have filed a Counter-Affidavit stating the contrary but that no such facts were disclosed in the Respondents’ Affidavit. In the mind of the Judge, he further noted, there is no distinction between an Application for amendment under Order 24 and Order 17 Rule 14 of the Anambra State High Court (Civil Procedure) Rules, 2006 for filing of Further Defence which two Rules are mutually exclusive as they had earlier shown in their earlier arguments.
On the holding by the Court which had earlier held upon the motion of the Respondents that pleadings could still be ordered to a Reply but refused his Oral application and called for a motion to be filed, he submitted that this was part of the confusion caused by the Ruling as an Amendment of a Statement of Defence, ordinarily should attract a consequential amendment of the Reply in order to properly traverse the defence, especially where the paragraphing have changed because if left like that Plaintiff may be deemed to have accepted some of the paragraphs as true. He maintained that such consequential amendments are ordered as a matter of course and the Application by the Appellants brought into fore the injustice done the Appellants by granting the amendment.
On the whole, the learned Counsel for the Appellants concluded that the Application of the Respondents ought not to be granted. We were therefore urged to allow the Appeal.
ARGUMENTS OF LEARNED COUNSEL FOR THE RESPONDENTS ON THE SOLE ISSUE.
In response to the above Argument of the Learned Counsel for the Appellants, the learned Counsel for the Respondents observed that the crucial question in their view is whether the Respondents could adduce additional pleadings after Reply by way of amendment of the Statement of Defence and whether such amendment is permissible under Order 24 Rules 1 – 5, Order 15 Rule 15; Order 15 Rule 19(2) and Order 17 Rule 14 of the High Court of Anambra State (Civil Procedure) Rules, 2006.
He pointed out that the Respondents’ main Relief as sought by way of Motion was for leave to amend the Statement of Defence and the purpose of the amendment sought as shown in Paragraph (4) of the Affidavit in Support was not to file a Reply to a Reply but to adduce further facts to bring all the live issues before the Court and their Written Address specifically relied on Order 24 Rules 1 – 5 of the Rules afore-stated (Pages 30 – 35 of the Records refer). The Appellants he further pointed out, did not challenge by way of Counter-Affidavit the Respondents deposition in paragraph (4) of the Affidavit in Support nor did they deny this fact in their Written Address that Order 24 Rules 1 – 5 do not empower the Court to grant an amendment of pleadings at any time before the close of pre-trial conference. (Pages 119 – 120 of the Records refer).
The learned Counsel submitted that Order 25 Rule 1 of the High Court (Civil Procedure) Rule of Anambra State, 2006 shows that a pre-trial Conference comes after the close of pleadings and this would mean after the Reply. However, he further maintained, the matter was yet to go into pre-trial conference stage as at when the motion was filed not to talk of close of the conference and accordingly the Respondent’s motion for amendment could be brought after the Reply and at any time before the close of conference. Citing and relying on the case of Ikeyi v. Crown Realities Plc (2010) 6 NWLR (Pt.1189) 114, 129; a decision of Lagos Division of this Honourable which interpreted the provisions of the Lagos State High Court (Civil procedure) Rule on Amendment and Pre-trial Conference, he posited that the practice of effecting amendments even at pre-trial conference stage is quite common under the Nigerian jurisprudence and against the contention of the learned Counsel for the Appellants that the prayer for amendment amended to a Reply to a Reply. Accordingly, he reiterated that from the authority above cited, amendments can be granted at pre-trial stage when pleadings, which include a Reply, have closed and the argument of the learned Counsel for the Appellants is misconceived.
Placing reliance again on the authorities of Mobil Oil (Nig) Plc v. IAL 36 INC. (2000) 6 NWLR (Pt 659) S.C. Rotimi v. Macgregor (1974) S.C. 133; Government of Midwest v. Midwest Motors (1977) 10 S.C. 43 and Salako v. Wiiliams (1998) 11 NWLR (Pt 574) 505; he contended that the argument of the Appellants failed to appreciate that an Amended Statement of Defence goes back in time to the original Statement of Defence as an amended pleading speaks from the date of the original pleading.
Secondly, the contention of the learned counsel for the Appellants failed to appreciate or underscore the import of “Amendment of Pleadings” in court proceedings which he (learned Counsel for the Respondents) defined in submitting further that depending on the nature of such amendment it could be with consent of parties or upon notice to the Court or as matter of Court. For this submission he relied on the case of NNB Plc. v. Denclag Ltd. (2005) 4 NWLR (Pt 916) 549, 601 to further contend that the Respondents merely sought the leave of the Courts’ discretion to be allowed to amend or improve upon their Statement of Defence and they are allowed to do so even after a Reply had been filed by the Appellants in order to place all the live issues before the Court.
On another wicket, the learned Professor stressed that the amendment was to enable the defence render admissible evidence on additional facts pleaded in default of which such evidence would be inadmissible same having not been pleaded. This is more so, when the Appellants sough for a consequential amendment after the grant of the Application of the Respondents and the amendment was sought before evidence was adduced by the parties. Citing again the cases of Emegokwe v. Okadigbo (1973) 1 ALL NLR (Pt. 1) 379; per Nnaemeka-Agu and Karibi-White, JJSC; in Imonikhe v. Bendel State (1992) 6 NWLR (Pt.248) 409 at 412 respectively, he insisted that our law stipulates that Rules of practice allow amendments to pleadings at any stage of the proceedings and that different consideration apply to amendments sought before or after close of evidence.
In respect of this case where amendment was sought before evidence was led or hearing commenced, let alone close of evidence, amendment is allowed to render the evidence to be called on the additional pleading admissible; as evidence adduced on unpleaded facts go to no issue, he further maintained. Relying again on the authorities of FBN (Nig) Plc v. M.O. Kanu (1999) NWLR (Pt 619) 484 at 499 per Rowland and Onalaja, JJCA; he posited that courts do not exist for the sake of discipline but for the sake of deciding matters in controversy nor are amendments matters of favour or grace but that as soon as it appears that the way in which a party frames his case will not lead to a decision on the real matter in controversy, it is as much a matter of right to have the case corrected without injustice to the other party.
He contended that as in this case, the Appellants did not show any injustice which the amendment would visit on them, and that in Paragraph 6 of the Affidavit in support, the Respondents had deposed to the fact that the Appellants would not suffer any damage if the application was granted (page 33 of the Records refers) and are deemed to have admitted these fact on the authority of Anason Farms Ltd. v. NAL Merchants Bank (1994) 3 NWLR (Part 331) 241 and 255; having not filed any counter affidavit to controvert this deposition of the Respondents.
He reiterated that the court does not set a time limit to do justice and by parity of reasoning, to grant an amendment designed to do justice between the parties, the correct position of the law being that amendment can be allowed at any stage of proceedings unless it would entail injustice to the other side responding to the application or that the applicant is acting mala fide or by his blunder the applicant has done some injury to the Respondent, which cannot be compensated in terms of costs or otherwise. Akaninwo v. Nsirim (2008) 9 NWLR (Part 1093) 439 at 460 S.C. and Ndefo v. Obiesie (2000) 15 NWLR (Part 692) 820 at 845, were relied upon in so submitting above and to further contend that the Appellant have not shown any cause why the amendment to the Respondents’ Statement of Defence ought not have been granted by the lower court.
The learned professor went on to submit further on the flexibility of the rules on amendments of pleadings which depend on the discretion of the Court predicated on certain conditions which he listed citing again FBN (Nig) Plc v. Kalu (Supra) at pages 499 – 500; Ogidi v. Egba (1999) 10 NWLR (Pt 621) 42 at 64 per Ogundare, JSC; Shell BP Ltd. v. Jarmmal Engineering (Nig) Ltd. (1974) 4 S.C. 33, 74 – 75 and Akaninwo v. Nsirim (supra) P.494 on the position of the law that a party will not lose the right to have his dispute between him and his adversary resolved on its merit because a mistake has been made in the preparation of the pleadings. He harped on the provision of Order 15 Rule 19(2) of the High Court Rules of Anambra State, 2006 which shows that pleadings could still be ordered by Court subsequent to a Reply, as in this case particularly where it is for determining in the existing suit, the real questions in controversy between the parties. Akaninwo v. Nsirim (2008) 9 NWLR (Pt 1093) 439 at 460 refers.
On the learned Counsel for the Appellants, argument that “Further Defence and Further Reply” to be filed pursuant to Order 17 Rule 14 of the Rules will have to be in separate documents and no by amending the statement of Defence or Reply (Paragraphs 6.08 – 6.09 of Page 6 of the Appellants’ Brief refers); and further that Order 15 Rule 19(1) and (2) of the Anambra State High Court (Civil Procedure) Rules, 2006, would only apply when the Plaintiff in his Reply raises a new issue or issues pursuant to Order 17 Rule 14 of the Rules aforesaid, in which the Defendant would only be permitted to deliver a “Further Defence” on a document titled or headed “Further Reply”; he submitted that the position taken by the learned Counsel is fallacious and untenable.
For the above submission he reproduced the provision Order 17 Rule 14 and asserted that the rule not tied to a Reply by the Plaintiff for under our law a Plaintiff need not file a Reply if the Statement of Defence does not evoke it as a Reply is only necessary if the Statement of Defence raises a fresh issue, not anticipated by the Statement of Claim. On the authority of Unity Bank Plc v. Bouari (2008) 7 NWLR (Pt.1086) 372, 415 S.C. he stated the basis of the Respondents’ application under Order 17 Rule 14 which is that the ground of defence which he proposes to plead arises after he had delivered a defence (which may well be before a Reply) or after the time limited for his delivery of a defence has expired (here there is no basis for a Reply as no defence is delivered yet).
Thus: he maintained, it is wrong to tie Order 17 Rule 14 to instances where a Reply raised new issues. He then proceeded to enumerate the circumstances under which Order 17 Rule 14 can be invoked by a party by drawing our attention also to Order 15 Rule 1(3) of the Rules on the time to file a Reply by the Plaintiff concluding on this point that a Respondent/Defendant need not wait for a Reply before filing a ground of defence and a Reply may be the source from which such a ground of defence arises but Order 17 Rule 14 is not inexorably tied to a Reply.
Still on the argument of the learned Counsel for the Appellant on Order 17 Rule 14 and Order 15 Rule 19(1) and (2),he submitted that Order 15 Rules 1(1) (2) and (3) clearly show the gamut of pleadings which he listed adding that the Rules do not contemplate a separate documents from the Statement of Defence set off or Counter-Claim and Reply which is to exist simultaneously but distinctly from the original pleading to which it is on addition to be titled “Further Defence or “Further Reply” for purposes of Order 17 Rule 14 or order 15 Rule 19(1) and (2). He urged that Order 17 Rule 14, order 15 Rule 19(1) and (2), Order 15 Rules 1(1), (2) and (3) and Order 24 Rules 1 – 5 must be read together and interpreted together and not in isolation so as to distil the intention of the framers of the Rules. Consortium MC. 3632, Nigeria v. NEPA (1992) 7 SCNJ 1 was cited in support of the above submission. The learned Counsel for the Respondents further explained that naturally, once the Statement of Claim, Statement of Defence set off or Counter-Claim and Reply are filed, then pleadings are generally closed and issues can only arise on already pleaded facts. However, he continued, before or post a Reply, a party may need to improve upon his “pleading” and in the case of the Respondents herein, he sought to improve his Statement of Defence by adducing additional facts and in the light of Order 24 Rules 1 and 2 of the Rules, they brought an Application before the Court to order improvement of their pleadings by introducing Further pleading” or Further Defence thereby expanding the frontiers of their original Statement of Defence which situation is the same as when the Court orders pleading subsequent to the Reply. In order to do this, the Respondents must seek the leave of Court which they did.
Accordingly, he finally submitted that by the learned Counsel for the Appellant’s argument on Order 17 Rule 14 and Order 15 Rule 19, it would mean that a Defendant who had previously filed a Statement of Defence would be allowed while the original Statement of Defence subsists to subsequently file separate or detached pleading to coexist and not replace the original Statement of Defence which would be absurd and could not have been the intention of the Rules aforesaid.
The learned Professor on another score argued that they brought an Application under Order 24 Rules 1 – 5 to amend their Statement of Defence and posed the question whether even if their argument on Order 17 Rule 14 and Order 15 Rule 19 of the Rules are wrong or that these latter Rules do not apply or that the wrong procedures were applied these could operate to defeat the Application, which question he answered in the negative. This, according to him is because our Law provides that failure to indicate the Rule or order under which an Application is brought does not invalidate the Application provided the remedy sought in the Application is provided by a written Law. For this submission he placed reliance on Mercantile Bank (Nig) Ltd. v. Feteco (Nig) Ltd. (1998) 3 NWLR (Pt 540) 143 at 154 and Falobi v. Falobi (1976) 9 – 10 SC 1 in further submitting that in all civil litigations, it is the duty of the Court to at all times aim at doing substantial justice and allow formal amendments as are necessary for the ultimate achievement of justice.
He maintained that while recognizing that Rules of Courts ought to be obeyed, it should also be emphasized that justice is not a fencing game where parties engage themselves in a whirling of technicalities. Adewunmi v. A.G. Ekiti State (2002) 2 NWLR (Pt 751) 474 at 507 – 508 per Wali, J.S.C. was finally cited to conclude on this point that the important thing is that an amendment wilt foster the course of justice as between the parties as is necessary for the determination of the real issues in dispute between parties. More so he concluded Order 5 Rule 2 of the High Court (Civil Procedure) Rules of Anambra State, 2006 makes it clear that failure to comply with the requirements of the Rules as to time, place, manner or form shall be treated as an irregularity and not nullify steps taken in the proceedings.
On the last lap of the learned Counsel for the Appellants which emanated from Ground 3 of the Grounds of Appeal to the effect that the learned trial Judge who held in his ruling that pleadings could still be ordered subsequent to the Reply of the Appellants to the Statement of Defence, rather refused the Application by the Appellants for consequential amendment of their Reply by asking Appellants to come formally with a Motion on Notice, the learned Counsel for the Respondents copiously argued on the authorities of United Agro Ventures Ltd. v. First City Merchant Bank Ltd. (1998) 4 NWLR (Pt 547) 546 at 561 per Onalaja JCA; Christopher Okeke & Anor v. Uzochukwu Motors (Nig) Ltd. (2001) 3 NWLR (Pt 700 338 per Olagunju JCA and Achalonu JCA (as he then was) in United Agro Ventures Ltd. v. First City Merchant Bank Ltd. supra at Page 564; that the Court did not make a decision but a remark on the procedure with which it would deal with the Application.
He maintained that in the instant Appeal, the oral request for leave by the Appellants to amend was not determined by the trial court who merely asked the Appellants to put the adverse party on Notice at which time the Court would determined whether to grant the Appellants leave to effect the consequential amendment if the Statement of Defence raised new issue. It was the view of the learned Counsel for the Respondents that the learned trial Judge was right in his reasoning as the consequential order envisaged was a Further Reply to the Amended Statement of Defence and would come as an amendment to the existing Reply.
On the contention by the learned Counsel to the Appellants that consequential amendments are as a matter of course N.N.B. Plc v. Denclag Ltd. (2005) 4 NWLR (Pt.916) 549 at 602 and Osayande v. Etuk (2008) 1 NWLR (Pt 1068) 211, 217 and Ojoh v. Kamalu (2005) 18 NWLR (Pt 958) 523 at 559; were relied upon in arguing that consequential orders are not granted as a matter of course but would only be allowed if the facts pleaded additionally consequential to the amendment, affect the opponent adversely. Thus, it stands to reason that in asking the Appellant to come by way of Motion on Notice, this would afford the Court the opportunity of seeing whether the additional facts in the proposed consequential Amendment of the Reply relate to the Amended Statement of Defence and to best exercise the discretion vested in the Court.
Finally on this point, the learned Professor reasoned that the oral request by the Appellants for Further Reply in consequence of the Amended Statement of Defence of the Respondents, was not refused by the Court and the Appellants suffered no miscarriage of justice, more so, in view of Order 39 Rules (1) (1) and (2) of the High Court (Civil Procedure) Rules, of Anambra State, 2006, on the mode of bringing applications before the High Court.
On the whole the learned Counsel for the Respondents submitted that Ground 3 of the Appellants’ Ground of Appeal is unnecessary and accordingly we were urged to dismiss the Appeal for lacking in merit.
RESOLUTION OF THE SOLE ISSUE:-
I have been opportune to peruse and reproduce copiously the submission of learned Counsel in this Appeal. In order to resolve the sole Issue that calls for resolution herein, it is necessary to take a cursory look at the Rules under which the Respondents’ Application is predicated and others relied upon together with the legal authorities cited by the learned Counsel for the respective parties. First of all, from what can be gleaned at pages 30 – 33 of the Records, the Respondents brought a harmless and innocuous Application for amendment pursuant to Order 24 Rules 1, 2, 3, 4 and 5 of the High Court of Anambra State (Civil Procedure) Rules, 2006 and prayed for the Orders following:-
“(a) Leave to amend the Statement of Defence as shown in the underlined paragraphs of the Proposed Amended Statement of Defence herewith Annexed as Exhibit “A”.
“(b) Upon the grant of leave, for an Order deeming the Amended Statement of Defence Exhibit “B” herewith – as properly filed and served, the prescribed fees having been paid.
“(c) Leave to file a List of Additional witnesses – Exh. “C” as well as Additional Documents and Written Statements On Oath – Exhs. “D”, “E”, “F” and “G” herewith,
“(d) Such Order(s) as the Honourable Court may deem fit to grant in the circumstances.”
In support of the Application the Respondents through Ezennia Raymond Machie, male, Christian, Pensioner, (the 2nd Respondent) herein deposed to an eight paragraph Affidavit. The salient paragraphs which are germane to this Appeal from the arguments of the respective learned Counsel are 4 and 6 wherein the deponent deposed inter alia:
“4. That I am told by Professor C.A. Obiozor, of counsel, in his office at Onitsha on the 5th day of March, 2012 and I verily believe him that this amendment is sought, in order to bring all the live issues before this Court.
“6. That I am told by Professor C.A. Obiozor, of counsel, in his office at Onitsha on the 5th day of March, 2012 and I verily believe him that the Plaintiffs will not suffer any damage if this application is granted.”
It is common ground that the Appellants did not file a counter-Affidavit to challenge or debunk the averments in Paragraphs 4 and 6 of the Respondents’ Affidavit in support of the Motion for amendment. In other words, in line with the submission of learned counsel for the Respondents at page 8 para. 3.08 of the Respondents’ Brief and the authority of Anason Farms Ltd. v. NAL Merchant Bank (1994) 3 NWLR (Pt.331) 241 at 255 Paras. D-E; where Tobi, JCA (as he then was), in his lead judgment relying on the authorities of Uzoukwu v. Ezeonu II (1991) 6 NWLR (Pt.2000) 708; Mofam Farms & Food Ind. Ltd. v. I.B.W.A. (1991) 6 NWLR (Pt. 205) 603. Jubril v. Eje (1992) NWLR (Pt.255) 631 and Bedding Holdings Ltd. v. N.E.C. (1992) NWLR (Pt 260) 428; restated the position of the law that:
“Let me take as the last point, the issue raised by the Appellant that facts deposed to in an affidavit not controverted are taken in law as admitted. The general position of the law, is as stated by learned Counsel for the Appellant and it is that uncontroverted or uncontradicted depositions in affidavits are deemed to be correct and so admitted in evidence”;
the Appellants were deemed to have admitted the facts in Paragraphs 4 and 6 of the Respondents Motion for Amendment of their Statement of Defence, that the Amendment sought, in the first place, was for the purpose of bringing all the live issues in controversy before the Court and that the Appellants would not suffer any damage if the Application was granted.
Now, at this juncture and before proceeding further, it is apt to have a look at the provisions of Order 24 Rules 1-5 upon which the Application for amendment was predicated. Those provisions are couched in the following terms.
“ORDER 24” AMENDMENT
“1. A party may amend his originating process and pleadings at any time before the close of pre-trial conference and not more than twice during the trial but before the close of the case.
“2. Application to amend may be made to a Judge. Such an Application shall be supported by an exhibit of the proposed amendment and may be allowed upon such terms as to costs as or otherwise as may be just.
“3. where any originating process and or pleading is to be amended a list of any additional witness to be called together with his written statement on oath and a copy of any document to be relied upon consequent on such amendment shall be filed with the application.
“4. If a party who has obtained an order to amend does not amend accordingly within the time limited for that purpose by the Order, or if no time is thereby limited, then within 7 days from the date of the order, such party shall pay additional fee of N200.00 (two hundred naira) for each day of default.
“5. Whenever any originating process or pleading is amended, a copy of the document as amended shall be filed in the Registry and additional copies served on ail the parties to the action.”
From the foregoing provisions of the above Rules, it is clear that parties to a Suit in the Anambra State High Court, be they the Defendants/Respondents or Plaintiffs/Appellants, are at liberty to seek for amendment of their pleadings and the limitation period is “at any time before the close of pre-trial conference” and in so doing, the amending party is entitled even to amend during the hearing or trial of the Suit but not more than twice before the close of the case. Rule 1 refers.
By the provision of Rule 2, the Court has the discretion to grant the application on such terms as to costs and/or as it may think just. Being a matter of discretion, the applicant must furnish the Court with sufficient facts and convincing reasons in order to exercise its undoubted discretions to grant the Application. In the exercise of the discretion, the court must be guided by the supreme interest of the parties and justice and should not be whimsical and capricious. See Bendel Insurance Co. Plc. v. BCM Fin. & SEC (Nig.) Ltd. (1997) 8 NWLR (Pt.518) 597.
Under Order 24 Rule 3, the party seeking to amend his pleadings is duty bound to annex the list of any additional witness(es) to be called together with their Statements On Oath and a copy or copies of any document(s) being relied upon consequent on such amendment, to the Application. By Order 5, upon amendment of the pleadings, a copy of the document amended shall also be filed and additional copies served on all the parties.
It is pertinent to note that upon a careful perusal of the Records, the Respondents had fulfilled all the conditions stipulated by Order 24 Rules 1-5 so as to warrant the grant of their Application for amendment. The Appellant did not file any Counter-Affidavit to the effect that the Respondents were not entitled to the grant of their Application on the grounds of non-fulfillment of the conditions stipulated by Order 24 Rules 1-5.
The law is settled on a plethora of authorities too numerous to mention some which have been rightly cited by the Learned Professor but suffice it to say that he was on very firm ground when he anchored the reason for the amendment sought on the need to bring all the live issues before the Court below to enable them be effectually and effectively determined once and for all instead of the piecemeal procedure of filing separate “further defence” or “further Reply” as suggested by the learned counsel for the Respondents. This is because the Supreme Court had long laid it down in the celebrated case of Oja & Ors. v. Ogboni & Ors. (1978) 1 NWLR 95; that as a general rule, an amendment under our Rules of Court will be granted “for the purpose of determining in the existing Suit the real questions or question in controversy between the parties”; and that amendment should be allowed unless –
“(a) it will entail injustice to the Respondent;
(b) the Applicant is acting mala fide or by his blunder, the Applicant has done some injury to the Respondent which cannot be compensated by costs or otherwise”.
The apex court in that case also approved the principle enunciated in the often-cited English case of Cropper v. Smith (1884) 2 CH. D. 700, 710 770 and 711 per Bowen, L.J. who posited inter alia that:-
“I think it is well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes which they make in the conduct of their cases by deciding otherwise than in accordance with their right. I know of no kind of error or mistake which if not fraudulent or intended to over reach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy and I do not regard such amendment as a matter of favour or grace. It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice as anything else in the case is a matter of right.”
It is the above cited dictum of the learned Law Lord that has been encapsulated in most of our Rules of Court on amendment and followed by the Courts of this land over the years in cases like Oguntimehin v. Gubere (1964) 1 ALL NLR 176; Amadi v. Thomas Aplin & Co. Ltd. (1972) 1 ALL WLR 409; Emegokwe v. Okadigbo (1973) 1 ALL NLR (Pt.1) 379; Imonikhe v. A.G. Bendel State (1992) 6 NWLR (Pt.248) 409 and 412 per Nnaemeka Agu and Karibi-Whyte, JJSC; FBN (NIG) PLC. v. M.O. Kanu (1999) 9 NWLR (Pt.619) 484, 499 per Rowland & Onalaja, JJCA; UBN PLC. V. Sparkling Breweries Ltd. (1997) 3 NWLR (Pt.491) 29 at 50; Akaninwo v. Nsirim (2008) NWLR (Pt.1093) 439 at 446 and Ndefo v. Obiesie (2000) 15 NWLR (Pt.692) 820 at 845;some of the above cases which were rightly cited by the learned Counsel to the Respondents and all which have established that our courts have always allowed amendments of pleadings at any stage of the proceedings and sometimes even after the cases of the parties have been closed to bring the amendment in tandem with the evidence led in order to place all the live issues before the Court to be effectually and effectively tried and determined.
Of course, the only inhibiting factors are that injustice or injury should not be occasioned the other party nor should he be overreached and that such amendment should not change completely the character of the cause of action from what it was at the inception of the case nor should the amendment be made in bad faith. See the recent cases of Popoola v. Babatunde (2012) 7 NWLR (Pt.1299) 302 at 326-327 per Okoro, JCA (as he then was), Kanubi v. Olagunju (2013) 8 WRN 98 at 114 – 115 lines 40 – 35 per Mbaba, JCA who reasoned, and rightly too, that an amendment which is intended to change the nature of the case before the Court will generally be refused because it is not made bonafide but mala fide and intended to over reach the other party. Oladiti v. Sangas Co. Ltd. (1994) 1 NWLR (Pt. 321) 433 cited with approval. See further Abah v. Jabuso (2008) 3 NWLR (Pt.1065) 526; Kade v. Yusuf (2001) 14 WRN 153; Laguro v. Toku (1992) 2 NWLR (Pt.223) at 278 and WorldGate Ltd. v. Senbanjo (2000) 4 NWLR (Pt.654) 699.
As said earlier, the Appellants have not complained that any of the aforementioned/enumerated inhibiting factors exists for the Court to refuse to exercise its discretion to grant the Application.
Indeed and in fact, the learned Counsel for the appellants at page 119 of the Records line or paragraph 3 of Appellants’ “WRITTEN ADDRESS IN OPPOSITION TO THE MOTION ON NOTICE DATED 14/03/2012 AND FILED ON 19/03/2012” had confirmed the innocuous nature of the Application when he stated that: “Ordinarily this is an application that ought not to be opposed because hearing in the suit has not commenced. The appellate Courts have stated time without number that amendments could be made at any stage of the proceedings”.
He then went on in subsequent paragraphs to argue that the Application ran against the grain as it was not an application to amend the Statement of Defence and with reference being made to paragraph 12 (xviii) 30 of the Proposed Amended Statement of Claim? (Defence); which are responses to paragraphs of the Reply to the Statement of Defence of the Plaintiff, he submitted that the Respondents wanted the amendment to Reply to their Reply to the Statement of Defence which is not possible in law under the Rules of Court.
Further reference was made to Order 15 Rule 1 (2) of the High Court of Anambra State (Civil Procedure) Rules, 2006 to submit that a Statement of Defence is a response to the Statement of Claim and not to the Reply. Order 17 Rules 1 and 2 of the above Rules was called in aid in so submitting. According to the learned Counsel to the Appellants, the Reply the Defendants/Respondents were seeking to reply to in their Amended Statement of Defence is subsequent to the Statement of Defence and not previous to it and therefore the amendment sought is not tenable.
In his Reply on points of Law to the Address of the learned Counsel for the Appellants, the learned Counsel for the Respondents referred to lower Court to Orders 24 Rules 1 and 2, 17 Rule 14, 15 Rule 19, 15 Rule 15 and 5 of the Anambra State High Court (Civil Procedure) Rules of 2006 and pointed out that in addition, the Plaintiffs/Appellants (the Respondents’ in the Motion) Reply in the Coutts file which Reply is dated 1st February 2012 raised in its paragraphs 2 to the end issues of evidence and argument. The learned Professor also pointed out that paragraphs 4, 5, 6, 7, 9 and 10 of the Plaintiff/Appellants’ Reply raised new matters not raised in the Statement of Defence.
Accordingly, the learned Counsel submitted that the Amendment sought thereat raised additional facts in defence of the case for the Defendants/Respondents and this is allowed by Order 17 Rule 14 and that additionally Order 15 Rule 19(2) of the Rules makes it clear that upon leave being granted, a Defendant may file pleadings subsequent to a Reply and that it is not the law that where pleadings close there cannot be additional pleadings with leave which the Respondents were seeking by the said Application.
He finally relied on the dictum of Kayode Eso, JSC (now of blessed memory) in Okonjo v. Odje (1985) 10 S.C. 267 and 268, to submit that the Law associates with substance of justice and not technicalities.
He maintained that the Application for leave and the tenor of the proposed amendment did not offend the Rules and were not couched as Reply to a Reply but constituted leave to adduce further facts or pleading. Thus the position of the learned Counsel for the Appellants was misconceived.
Upon hearing the arguments of the learned Counsel on the Application the learned trial Judge in his reserved Ruling looked at the provision of Order 17 Rule 14 and rightly in my humble view, held: “I have looked at the above provision because it is argued that the amendment sought by the Defendants is in response of the Reply filed by the Plaintiffs. So the question is if the Plaintiff in his Reply raises an issue not raised by the Defendant in his Statement of Defence, is the Defendant supposed to keep quiet and have admission read into his silence?
Amendment could be made to pleadings provided the amendment would not cause injustice to the other party and provided the application was not made mala fide. “Romaine v. Romaine, Anambra State of Nigeria Law Reports page 86. The learned Counsel to the Plaintiff did not say in what manner the amendment sought would affect them if granted.” See pages 130 – 131 of the Records.
On the purpose of the Application the learned trial Judge also remarked in paragraphs 2-3 of page 131 that:- “The aim of an amendment is usually to prevent the manifest justice of a case from being defeated or challenged by formal slips which arise from inadvertence of counsel. See Anthony Ehimben v. Ahmadu Musa & Ors. (2000) 8 NWLR (Pt. 669) 540.
The Defendants/Applicants have said in their further affidavit in support of the motion (Paragraph 4) that this amendment is necessary in order to bring all the live issues involved in this case before the Court. Again in their Reply on points of law the Applicants said that paragraphs 4, 6, 7, 9 and 10 of the Plaintiffs’ Reply raised new issues not raised in the Statement of Defence”.
On the provisions of order 15 Rule 19(2) the learned trial Judge reviewed same and held that: “The implication is that pleadings could still be ordered by the Court subsequent to a Reply as in this case. The motion was also brought within the pre-trial period as required by Order 24 Rule 1 of the Court Civil Procedure Rules. This application succeeds. The order is as prayed in reliefs (a) (b) and (c) of the motion paper.”
I am of the candid opinion that the holdings of the learned trial Judge are unassailable as they represent the position of both our adjectival and procedural Law as well as decided authorities which had earlier been considered.
The learned Counsel for the Appellants has, in spite of the clear and analytical exposition of law by the learned trial Judge brought this Appeal and accusing the learned trial Judge of being confused with the difference between Order 24 and Order 17 Rule 14 because according to him, the Respondent did not bring the Application under the correct Rule and that explained why he refused to file a Counter-Affidavit to the motion for amendment. He has cited cases like Ojong v. Duke (2003) 14 NWLR (Pt.841) 581 at 618 para C – D which hold that where a statute provides for the mode of doing an act, the mode and no other shall become lawful if employed which to my mind is also the unalloyed truth.
He has also relied on N.H Intl. vs. N.H.H. Ltd. (2007) 7 NWLR (PT.1032) 86 at 114, per Odili, J.S.C. (as he now is) that Courts should ensure compliance with Rules of Court in order to achieve the purpose for which they were made. These decisions were anchored on sound principles and represent the state of our Law but I am afraid the learned Counsel to the Appellants cited them out of con upon a consideration of the surrounding facts and circumstances and decided authorities which have been cited by the learned counsel for the respondents. Thus, it is erroneous to contend that the Court below ought to have directed the Respondents to bring the application under Order 17 Rule 14 which for the purpose of this Appeal it is necessary to revisit.
ORDER 17 of the High Court of Anambra State (Civil Procedure) Rules, 2006 provides in Rule 14 thereof that:
“14 Where any ground of defence arises after the Defendant has delivered a defence, or after the time limited for his doing so was expired the defendant may, and where any ground of defence to any set-off or Counter-Claim arises after Reply, or after the time limited for delivery of a reply has expired, the Plaintiff may, within I days after such ground of defence has arisen or at any subsequent time by leave of a Judge deliver a further defence or reply, as the case may be setting for the same.”
Although the above provision is clumsy and inelegantly drafted, the learned Counsel for the Respondent has in his expository Brief of Argument particularly in paragraphs 3.11 to 3.13 clearly brought out in broad outline the purports of Order 17 Rule 14 and 15 Rule 19(2) which I shall come to a non.
But suffice it to say as the learned Counsel has rightly submitted that by the clear wordings of the first part of the sentence that “where a ground of defence arises after Defendant has delivered his defence”. THE Rule envisages a situation where pleadings have been settled or where the time stipulated by the Rules for the Defendant to deliver a further defence has expired and fresh facts have come to his knowledge, or even when such facts have come to his knowledge after a Reply has been filed by the Plaintiff, the Defendant may seek the leave of court to deliver a Further Defence.
The Plaintiff is also given the latitude like the Defendant to also apply to the Court within 8 days to file a further Reply.
It is therefore correct as contended by the learned Counsel for the Respondents that such Further Defence is not necessarily tied to a Reply but by the above provisions nothing stops the Defendants from filing a Further Defence after a Reply has been filed as in this case.
In any case, like the Court below rightly held, where the Respondents alleged in their argument on points of law that fresh facts which were not raised in the Statement of Defence had been raised in the Appellants Reply to the Statement of Defence, should the Defendants/Respondents keep mute because in the erroneous view of the learned counsel for the Appellants the law does not provide for a Reply to a Reply? I think not.
Order 15 Rule 19(1) and (2) provide thus:-
“(9)(1) where pleading subsequent to reply is not ordered, then, at the expiration of 7 days from the service of the defence or reply (if a reply has been filed) pleadings shall be closed.
“(2) Where a pleading subsequent to a reply is ordered, and the party who has been ordered or given leave to file same fails to do so within the period limited for the purpose, then, at the expiration of the period so limited the pleadings shall be deemed closed.”
Again this provision is in tandem with Order 17 Rule 14 that pleadings can be ordered subsequent to a Reply and after the expiration of the time stipulated by the Rules, leave can be granted under Order 17 Rule 14 of the Rules upon the Application of any of the parties to either file a Further Defence upon fresh facts having arisen or come to the knowledge of the Defendant or the Plaintiff who may file a Further Reply not necessarily but could be from fresh facts which might have arisen from the Further Defence back and forth until pleadings, subject to the time limited by the Court or Rules are finally settled.
It seems to me that the filing of “Further Defence” or “Further Reply” as envisaged by Order 17 Rule 14 of the Anambra State High Court (Civil Procedure Rules) 2006, does not entail filing separate processes so headed side by side with the pending Statement of Defence or Reply earlier filed as argued by the learned Counsel for the Appellants.
The filing of fresh processes to improve the earlier ones filed would necessarily entail the amendment of the original process filed in the Registry of the Court. For instance, the learned Counsel to the Respondent has argued that fresh facts had come to the knowledge of the Respondents and they intended to improve on their pleadings hence the need to amend their statement of Defence by firing the Proposed Amended statement of Defence. Once the leave was granted them to file the Amended statement of Defence, then, the Amended Statement of Defence so filed, supersedes the original Statement of Defence earlier filed and served on the Appellant and if the Appellant is subsequently granted leave to fire a Further Reply, this will supersede the Reply to the Statement of Defence earlier filed and the fresh Reply could be tagged “Amended Reply Consequent Upon the Amended Statement of Defence”, and issues would be joined at the pre-trial conference. After all, the effect of amendment is that it goes back to the date of the original document which is amended.
In Osita Nwosu V. Imo State Environmental Sanitation Authority (1990) 4 S.C.N.J. at 126, Agbaje J.S.C. held, relying on the English cases of Sneade v. Wotherton (1904) 1 K.B at 297; Warner v. Sampson (1959) 1 K.B. 297 and Warner v. Sampson (1959) 1 K.B. 321, that: “As regards pleadings once they are amended what stood before the amendment is no longer material before the Court and no longer defines the issue to be tried.” See also Oputa, JSC in Awote v. Owoduni (1986) 5 NWLR (Pt.56) 941 (1986) S.C. 294, FBN v. Tsokwa (2000) 13 NWLR (pPt.685) 521 at 530 and the recent case of Kanubi V. Olagunji (Supra).
From the foregoing, I am in total agreement that the contention of the learned Counsel for the Appellants, that the Further Defence or Further Reply should be in a separate document which shall exist side by side with the original processes sought to be or have been granted leave to be amended, is a total misconception of the purport of Order 17 rule 14 of the Anambra State High Court (Civil Procedure) Rules of 2006. I also hold that to give it such interpretation as canvassed by the learned Counsel for the Appellant would wrought manifest absurdity.
On the whole, the learned Counsel for the Respondent was on a sound pedestal when he submitted that the era of blind adherence to technical and mechanical justice is gone for good as Courts/Judges of the land in this clime strives all their nerves to do substantial justice. That is the essence of the provision of Order 5 which is on the effect of non-compliance with the rules where in beginning or purporting to begin any proceeding or at any stage, there is failure to comply or by anything or reason done or failed to be done. Although Rule 1(1) thereof has now provided that such failure shall nullify the processes but by sub-rule (2) there of: “where at any stage in the course of or in connection with any proceedings there is by reason of 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 step taken in the proceedings. The Judge may give any direction as he thinks fit to regularize such steps.”
Herein, the learned Counsel for the Respondents has cited Mercantile Bank Ltd. v. Febco (Nig). Ltd. (1998) 3 NWLR (Pt. 540) 143 at 154; Falobi v. Falobi (1976) 9 – 10 S.C. 1 Adewunmi v. Attorney-General of Ekiti State (2002) 2 NWLR (Pt. 751) 470, 507 per Wali J.S.C; which interpreted the above Rules to rightly posit that even if the Respondents failed to come under the right Rule or did not indicate the correct order, the law is settled by motley decisions that this error will not invalidate the application for amendment which in this case was properly brought under Order 24 Rules 1-5 of the Rules. In the course of the grant of the Application and from the prayers the Application may dove-tail into order 15 rule 19(1) and (2) and 17 rule 14 but in my humble view, these Rules read holistically still supported the grant of the application for amendment more especially as it was outside the pre-trial conference period and the Appellants have not shown what injury, prejudice, injustice, damage that has been occasioned them or that the amendment effected has changed the character of the cause of action from what it was from the inception.
Before I am done let me comment on Ground 3 of the Grounds of Appeal which was incorporated in the sole issue for determination. Here the learned Counsel for the Appellants has complained that the Court refused to grant them leave to effect consequential amendments to the Further Defence of the Respondents. I must state without any equivocation that going by the Records, particularly page 125 thereof, the learned trial Judge did not refuse the learned Counsel for the Appellants’ Application. Although in some instances, the Court can grant oral application for amendment where an amendment would entail contentious issue(s), it behoves on Counsel to put the other party on Notice particularly where the issues arising from such consequential amendment are likely to be contested.
In any case, the Court below merely directed the learned Counsel to the Appellants after he had sought leave to file a Further Reply (which he had the right to ask for by virtue of Order 17 Rule 14 of the Rules), that:
“COURT: The filing of further Reply should come by way of a motion on notice which the Court could grant if the amendment of the statement of defence raised new issues. There should be an order for pleadings.”
From the underlined portion of the directive of the Court, the learned trial Judge was predisposed and amenable to grant the application for amendment. After all, in seeking for their amendment or filing of Further Defence, the Respondents came by way of Motion on Notice which the Appellants were served but they failed, refused and/or neglected to file a counter-affidavit on the frivolous ground that the Application was brought under a wrong Order/Rule.
Finally, and to seal the doom of the Appellants, case, Order 17 Rule 14 and Order 24 envisage that the Appellants should go to the court to supplicate for filing of further Reply by way of an Application. Order 39 Rule 1 of the Anambra State High Court (Civil Procedure) Rules, 2006 which deals with motions and other applications, unequivocally provides that: “where by the Rules any application is authorized to be made to a Judge such application shall be by way of motion which may be supported by affidavit and shall state the rule of Court or Law under which the Application is brought.”
By the provisions of this Order and Rule, the learned trial Judge was not in error to have directed the learned Counsel to the Appellants to file a motion for purposes of their Further Reply. This Appeal is therefore frivolous and is accordingly dismissed with N30,000.00 costs in favour of the Respondents.
ADZIRA GANA MSHELIA, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, Agube JCA., and am in agreement with his reasoning and conclusion.
I abide by the order as to costs proposed in the lead judgment.
EMMANUEL AKOMAYE AGIM J.C.A.: I had a preview of the judgment just delivered by my Learned brother, IGNATIUS IGWE AGUBE JCA. I completely agree with the reasoning and conclusions therein. I also hold that the appeal lacks merit. It is accordingly dismissed. The appellant shall pay cost of N30,000.00 to the respondents.
Appearances
Chidi Obieze Esq. with Sylvester Odili Esq.For Appellant
AND
Ted C. Eze holding brief for Prof. C. A. ObiozorFor Respondent
