OLAM NIG. LTD v. HERITAGE BANK LTD
(2020)LCN/15437(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Tuesday, November 24, 2020
CA/L/1248/2015(R)
RATIO
WORDS AND PHRASES: DISCRETION OF COURT
Discretion signifies: the right or power of a Judex to act according to the dictates of his personal judgment and conscience uninfluenced by the judgment or conscience of other persons, see Suleman v. C.O.P., Plateau State (2008) 8 NWLR (Pt. 1089) 298, Ajuwa v. S.P.D.C.N. Ltd. (2011) 18 NWLR (Pt. 1279) 797; NJC v. Dakwang (2019) 7 NWLR (Pt. 1672) 532; Nzekwe v. Anaekwenegbu (2019) 8 NWLR (Pt. 1674) 235; Adeniyi v. Tina George Ind. Ltd(2019) 16 NWLR (Pt.1699) 560. Being an exercise of discretion, the law mandates the applicant, if it must attract the favourable discretion of this Court, to furnish it with sufficient material facts that it will use, as the springboard, to exercise its discretion judicially and judiciously. This is because a Court does not dish or dash out its discretion in vacuo, material facts being, invariably, desiderata for such judicial exercise, see Dongtoe v. Civil Service Commission, Plateatu State (2001) 9 NWLR (Pt. 717) 132; Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) 203; In Re: NDIC, Adesanya v. Lawal (2007) 7 NWLR (Pt. 1032) 54; Ebe v. C.O.P. (2008) 4 NWLR (Pt. 1076) 189; Ifekandu v. Uzoegwu (2008) 15 NWLR (Pt. 1111) 58; Ani v. Otu (2017) 12 NWLR (Pt. 1578) 30.
A Judge, in exercise of discretion, must act judicially and judiciously. To act judicially denotes “…discretion bounded by the rules and principles of law, and not arbitrary, capricious, or unrestrained. It is not the indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by law, or the equitable decision of what is just and proper under the circumstances”. See Babatunde v. P.A.S. & T.A. Ltd. (2007) 13 NWLR (Pt. 1050) 113, at 149 and 150, Per Muhammad, JSC. On the other hand, “Acting judiciously … is said to import the consideration of the interest of both sides and weighing them in order to arrive at a just or fair decision”, see Babatunde v. P.A.S. & T.A. Ltd (supra), at 164, Per Ogbuagu, JSC. The applicant woke up to that judicial responsibility, presentation of material facts for use by this Court as the barometer to gauge the success of its application, when it filed copious affidavits in support of it. PER OBANDE FESTUS OGBUINYA, J.C.A.
PLEADINGS: CIRCUMSTANCES IN WHICH AMENDMENT OF PLEADINGS MAY BE GRANTED
As already noted, the application is staked on amendment It is imperative, in order to ease appreciation and lay proper foundation, to display salient features of the concept of amendment combed out from case-law authorities. Unarguably, the issue of amendment has become ubiquitous in adjudications in the Courts. It is invariably occasioned by the accepted fallibility of man in the process of writing documents. Etymologically, amendment traces its lexical paternity to the Latin verb “emendo-emendere” meaning “to cure, to add to, to correct an error”. In its wide context, amendment is: “A formal revision or addition proposed or made to a statute, constitution, pleading, order, or other instrument; specif., a change made by addition, deletion or correction, esp., an alteration in wording”, see Bryan A. Garner (ed.) et al, Black’s Law Dictionary, 10th edition (USA, Thomson Reuters, 2014) 99. In the immaculate words of Oputa, JSC, in Awote v. Owodunni (1986) 5 NWLR (Pt. 46) 941/(1986) 2 NSCC (vol. 17) 1359 at 1366, “amendment involves and implies an alteration, an addition to or subtraction from….” Even, substitution is held as an act of amendment, see Agbabiaka v. Saibu (1998) 7 SCNJ 305/(1998) 10 NWLR (Pt. 517) 534; SPDCN Ltd. v. Edamkue (2009) 14 NWLR (Pt. 1160) 1.
The purpose of amendment, which is at the discretion of a Court, is to determine, in an existing suit, the real question(s) in controversy between the litigating parties. It is a time-honoured principle of law that amendment can be made at any stage of proceedings in Court before judgment. Most rules of Courts do not circumscribe the number of times a party can apply for an amendment during the pendency of proceedings. It is trite that amendments could be effected before trial Courts as well as appellate Courts, that is, the Court of Appeal and Supreme Court. Sometimes, the Courts make amendments suo motu. These attributes of amendment have been confirmed by the apex Court in sea of authorities, see Alsthom v. Saraki (2000) 11 SCNJ 1; Abey v. Alex (1999) 12 SCNJ 234; Solanke v. Somefun (1974) 1 SC 141/(1974) NSCC, vol. 9, 14; Mamman v. Salaudeen (2005) 18 NWLR (Pt. 958) 474; Kode v. Yussuf (2001) 4 NWLR (Pt. 703) 392/(2001) 2 SCNJ 49; Akaninwo v. Nsirim (2008) 1 SC (Pt. 111) 151; Okolo v. UBN Ltd. (1999) 6 SCNJ 193; Ehidimhen v. Musa (2000) 8 NWLR (Pt 669) 540; SPDCN Ltd. v. Edamkue (2009) 14 NWLR (Pt. 1160) 1; Ipadeola v. Oshowole (1987) 5 SCNJ 200/(1987) 2 NSCC (vol. 18) 755. GTB Plc. v. Innoson Nig. Ltd. (2017) 16 NWLR (Pt. 1591) 181; Ikechukwu v. Nwoye (2014) 4 NWLR (Pt. 1397) 227.
There are certain principles, evolved by the Supreme Court, to guide the Courts in treating amendments of Court processes. In Chief Ojah v. Chief Eyo Ogboni (1976) 4 SC (Reprint) 87 at 92, Madarikan, JSC, stated:
It is well settled law that an amendment of pleadings should be allowed unless –
1. it will entail injustice to the respondent;
2. the applicant is acting mala fide… or
3. by his blunder, the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise….’
See also C.C.G. (Nig.) Ltd. v. Idorenyin (2015) 13 NWLR (Pt. 1475) 149; Eze v. Ene (2017) 12 NWLR (Pt. 1579) 313.
Similarly, amendment will be granted if it ensures justice, relates to a mere misnomer; does not change the nature of the claim; does not create a new suit; will cure the defects in the proceedings; will be consistent with the testimonies of witnesses being considered on appeal or will not embarrass or surprise the opponent in the proceedings, see Oguntimehin v. Gubere (1964) All NLR 169; Amadi v. Thomas Aplin & Co. Ltd. (1972) All NLR 413; Mamman v. Salaudeen (supra); Kode v. Yussuf (supra); Adetutu v. Aderohunmu (1984) 1 SCNLR 575; Gowon v. Ike-Okongwu (2003) 1 SCNJ 453; Okolo v. UBN (supra); Ehidimhen v. Musa (supra); Okafor v. Ikeanyi (1979) 3-4 SC 99/(1979) NSCC (vol. 12) 43; Eta v. Dazie (2013) 9 NWLR (Pt. 1359) 248. PER OBANDE FESTUS OGBUINYA, J.C.A.
CIVIL CONTEMPT: EXCEPTIONAL CIRCUMSTANCES IN WHICH A PARTY WHO DISOBEYS A POSITIVE ORDER OF COURT MAY BE ENTITLED TO ANOTHER ORDER OR REMEDY
By way of prefatory remarks, a civil contempt connotes a failure or neglect of a party to obey a Court order that was issued for another party’s benefit, see Abeke v. Odunsi (2013) 13 NWLR (Pt. 1370) 1; Kulak T. & Ind. Plc v. The Tug Boat M/V Japaul B. (2019) 3 NWLR (Pt. 1658) 145. It is a frontal affront to the authority, dignity and sanctity of a Court. It is of two species, videlicet: ex facie curiae and in facie curiae, see Brittania – U (Nig.) Ltd v. Seplat Pet. Dev. Co. Ltd (2016) 4 NWLR (Pt. 1503) 541; INEC v. Oguebego (2018) 8 NWLR (Pt. 1620) 88. It is settled elementary law that a subsisting order of Court, of any cadre or stratium, must be obeyed by the parties. Hence, a party who flouts/disobeys a positive order of Court is not entitled to another order or remedy from the same Court, or appellate Court, while relishing in his contempt or until he purges himself of the contempt, see Gov. of Lagos State v. Ojukwu (1986) 1 NWLR (Pt.18) 621; Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539; First African Trust Bank Ltd v. Ezegbu (1992) 9 NWLR(Pt. 264) 132/(1993) 6 SCNJ 122; Ngere v Okuruket ‘XIV’ (2014) 11 NWLR (Pt. 147) 147; Jev v. Iyortyom (2014) 14 NWLR (Pt. 1428) 575; APC v Karfi (2018) 6 NWLR (Pt. 1616) 479; Abeke v. Odunsi (supra); Brittania – U (Nig) Ltd v. Seplat Pet Dev. Co. Ltd (Supra); Umaru v. APC (2018) 18 NWLR (Pt. 1650) 139; Umeakuana v Umeakuana (2019) 14 NWLR (Pt. 1691) 61; Ekpemupolo v. FRN (2019) 11 NWLR (Pt. 1684) 462; INEC v. Oguebego (supra). However, this hallowed principle of law is elastic. The accepted exceptions are: (a)where the party seeks leave to appeal against the order which he is in contempt; (b) where he challenges the order on the ground of lack of jurisdiction; (c) where the contemnor seeks to be heard in defence of the order; and (d) where it can be shown that there were certain procedural irregularities in making of the order which make it unsustainable, see First African Trust Bank Ltd v. Ezegbu (supra); Ngere v. Okuruket ‘XIV’ (supra); INEC v Oguebego (supra).
Now, the kernel of the respondent’s objection is erected on the applicant’s failure to pay the costs of N100,000 made in its (the respondent’s) favour on 18th April, 2019 by this Court. The High Court of Lagos State (the lower Court) coram judice: K A Jose, J., delivered the judgment, which parented the appeal, on 12th May, 2015. After its delivery, the lower Court, at the behest of the applicant’s counsel, awarded cost of N500,000 in favour of the applicant. It is located at page 41 of the supplementary record. That cost was awarded to the applicant as a successful party because, in the eyes of the law, cost follows event. It is at the discretion of Court to award costs which discretion must be exercised judicially and judiciously, see NNPC v. Klifco (Nig) Ltd. (2011) 10 NWLR (Pt. 1255) 209; Olusanya v. Osinleye (2013) 7 NWLR (Pt. 1367) 148; Luna v. C.O.P, Rivers State (2018) 11 NWLR (Pt. 1630) 269; Mekwunye v. Emirates Airlines (2019) 9 NWLR (Pt. 1677) 191. It is settled law, beyond any peradventure of doubt, that an appeal against costs is not as of right. It is incumbent on party who appeals against an order of cost to obtain leave of Court or the appeal/ground will be infested with incompetence, see Oketade v. Adewunmi (2010) 8 NWLR (Pt. 1195) 63, Section 241 (2) (c) of the Constitution, as amended. PER OBANDE FESTUS OGBUINYA, J.C.A.
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
OLAM NIGERIA LIMITED APPELANT(S)
And
HERITAGE BANK LIMITED (Substituted By Order Of Court Of 29-9-2016) RESPONDENT(S)
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): By a motion on notice dated and filed on 2nd July, 2020, the respondent, as an applicant, prayed the Court as follows:
1. Pursuant to the Court’s inherent jurisdiction granting it leave to amend its Respondent’s brief dated the 5th day of April 2019 and filed on that day in the manner set out in the schedule below; and
2. Pursuant to the Court’s inherent jurisdiction deeming the amended brief filed on the 2nd day of July 2020 and attached to the affidavit sworn in support of the application herein as exhibit A to have been properly filed;
and for such further and/or other orders as this honourable Court may deem fit to make in the circumstances.
It was predicated on these grounds:
And Further Take Notice that the grounds for the application with regard to prayer 1 are that:
1. With regard to the amendments described in paragraphs 1, 2, 4, 5, 6, 7, 8, part of 9, 10, 11, part of 12, 13 and 17 of the schedule, they are necessary to make corrections so as to reflect the correct situation;
2. With regard to the amendments described in paragraphs 3, part of 9, part of 12, part of 14, part of 15, 19 and 20 of the schedule, they are necessary to identify and bring all the salient matters before the Court to facilitate an easy hearing of the appeal;
3. With regard to the amendments described in parts of paragraphs 9, 12, 14, 15 and 23 of the schedule, they are necessary consequential renumbering because of additional paragraphs introduced; and
4. With regard to the amendments described in paragraphs 16, 18, 21, 22, 23, part of 24 and 25 of the schedule, they are necessary in order to bring all the real matters in controversy before the Court so that they may be completely determined;
And Further Take Notice that the ground for the application with regard to prayer 2 is that the proposed amended brief has already been filed.
It was supported by a 6-paragraph affidavit, with two attached annexures, exhibits A and B, and a 6-paragraph affidavit in reply to the counter-affidavit, filed on 10th July, 2020, with two annexures exhibits: TA1 and TA2, attached to it. The appellant, as a respondent, opposed the application by filing a 19-paragraph affidavit on 6th July, 2020.
Following the objection, this Court ordered parties to file the written addresses. The parties complied with the order. The application was heard on 13th October, 2020. During its hearing, learned counsel for the applicant, Nick Omeye, Esq., adopted the applicant’s written address, filed on 10th July, 2020, and the applicant’s written reply on points of law, filed on 24th July, 2020, as representing his arguments for the application. He urged the Court to grant it. Similarly, learned respondent’s counsel F.O Arifayan, Esq., adopted respondent’s written address, filed on 20th July, 2020, as forming his reactions against the application. He urged the Court to dismiss it.
In the applicant’s written address, learned counsel distilled two issues for determination to wit:
1. Whether, given the relevant and admissible evidence before this Court along with the proposed amendments sought and the records before this Court, they ought to be granted.
2. Whether, given the fact that the amended brief has already been filed, a deeming order ought to be granted.
In the respondent’s written address, learned counsel crafted three issues for determination viz:
– Whether an amendment of the Respondent’s brief of argument could still be allowed at this stage without injustice to the Appellant when the parties have already filed and exchanged briefs of argument?
– Whether the Respondent adduced good and sufficient reasons for seeking to amend its Respondent’s brief of argument?
– Whether this Court ought to entertain the Respondent’s application for amendment when the Respondent has failed to obey the order of cost made by this Court on 8th April, 2019?
I have given a close look at the two sets of issues. I will adopt the issues formulated by the applicant since it is the undoubted owner of the application. Furthermore, the applicant’s issue one is sufficient to determine the application.
Submissions on the issue:
Learned applicant’s counsel submitted that the respondent’s counter-affidavit was inadmissible because it was sworn to by counsel. He relied on Rule 20 of the Rules of Professional Conduct to Legal Practitioners, 2007 (RPCLP) (S.I. No. 6 of 2007); Olomu v Garan (2000) 15 NWLR (Pt. 690) 221;
Boniface Anyika & Co. Lagos Nig. Ltd v. Uzor (2006) 15 NWLR (Pt. 1003) 560; Garan v. Olomu (2013) 11 NWLR (Pt. 1365) 227. He explained that the use of the word “trial” in the RPCLP forbade counsel from swearing to contentious affidavits. He cited Mirchandani v. Pinheiro (2001) 3 NWLR (Pt. 701) 557; Unilorin v. Oyalana (2001) 15 NWLR (Pt. 737) 684; Bello v. A-G, Lagos State (2007) 2 NWLR (Pt. 1017) 115. He asserted, in the alternative, that paragraphs 11,12,15 and 18 of the counter – affidavit were arguments and/or conclusions and should be struck out. He referred to Bamaiyi v. The State (2001) 8 NWLR (Pt. 715) 270; Nigeria LNG Ltd v. African Dev. Insurance Co. Ltd (1995) 8 NWLR (Pt. 416) 677.
Learned counsel further submitted that the amendments, as shown in the schedule, were for correction of errors, introduction of matters that would make it easier for the Court to identify the salient matters, necessary renumbering of the paragraphs and representing the applicant’s case so as to bring out the real matters in controversy. He cited Ibe v. Onuorah (1998) 7 NWLR (Pt.558) 333; FBN v. Kanu & Sons (1999) 9 NWLR (Pt.619) 484; He stated the object of amendment to decide the rights parties and not punish them for their mistakes. He referred to Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt.60) 214. He reasoned that the application was when the errors were discovered, 26th June, 2020, He cited Ogunbiyi v. Mustapha (1996) 4 NWLR (Pt. 442) 337. He said the reasons of packing out the house caused the counsel distractions that caused the errors. He explained that the appeal would be adjourned whether the application was granted or refused. He noted that the schedule stated the mode of amendment. He opined that the applicant was entitled to set off against the N100,000 costs given the respondents’ unpaid costs of N500,000. He maintained that the respondent’s motion for stay of execution and the notice or grounds of appeal never challenged the N500,000 awarded by the lower Court. He cited Anyaogu v. Our Line Ltd (1993) 4 NWLR (Pt.289) 607. He insisted that the applicant was not in willful disobedience of the order of costs.
On behalf of the respondents, learned counsel contended, per contra, that the amendment would result to injustice to respondent because the parties had filed and exchanged their briefs of argument and it would be compelled to file consequential amended reply brief. He relied on Odon v. Barigha-Amange (No. 1) (2010) 12 NWLR (Pt. 1207) 1; LASTMA v. Ezezoobo (2012) 3 NWLR (Pt. 1286) 49. He stated that the grant of amendment would depend on the weight of the affidavit. He cited Akaninwo v. Nsirim (2008) 9 NWLR (Pt. 1093) 439. He claimed that the reason for failure to detect the errors was not good reason as it suggested counsel’s inexcusable failure to vet the brief carefully. He referred to Coker v Adetayo (1992) 6 NWLR (Pt. 249) 612. He added that the application was made mala fide and should not be granted. He cited Nuru v. Kore (1997) 6 NWLR (Pt. 509) 496. He posited that the applicant was in disobedience of order of Court and not entitled to its indulgence. He relied on Minister, FCT v. Mononia Hotel Nig., Ltd (2011) 9 NWLR (Pt.1252) 272. He explained that the respondent could not deduct the cost of N100,000 because the N500,000 was still subject of appeal before this Court. He took the view that it was permissible for counsel to swear to the counter-affidavit and same was not inadmissible. He cited NDIC v. Sheriff (2004)1 NWLR (Pt. 855) 563.
On points of law, learned applicant’s counsel argued that a preliminary objection would not prevent a grant of an application for extension of time. He cited Shanu v. Afribank Nig. Plc (2000) LPELR – 3037 (SC). He persisted that briefs could be amended when errors were detected. He cited Husseni v. Mohammed (2014) LPELR – 24216 (SC).
Resolution of the issue.
A clinical examination of the issue clearly reveals that respondent greeted the applicant’s application with a stiff objection. The hub of the registered vehement opposition is that the Court ought not to entertain the application in that the applicant is in disobedience of its order. In other words, it queries the vires or jurisdiction of this Court to adjudicate over the application when the applicant is in contempt of its order.
By way of prefatory remarks, a civil contempt connotes a failure or neglect of a party to obey a Court order that was issued for another party’s benefit, see Abeke v. Odunsi (2013) 13 NWLR (Pt. 1370) 1; Kulak T. & Ind. Plc v. The Tug Boat M/V Japaul B. (2019) 3 NWLR (Pt. 1658) 145. It is a frontal affront to the authority, dignity and sanctity of a Court. It is of two species, videlicet: ex facie curiae and in facie curiae, see Brittania – U (Nig.) Ltd v. Seplat Pet. Dev. Co. Ltd (2016) 4 NWLR (Pt. 1503) 541; INEC v. Oguebego (2018) 8 NWLR (Pt. 1620) 88. It is settled elementary law that a subsisting order of Court, of any cadre or stratium, must be obeyed by the parties. Hence, a party who flouts/disobeys a positive order of Court is not entitled to another order or remedy from the same Court, or appellate Court, while relishing in his contempt or until he purges himself of the contempt, see Gov. of Lagos State v. Ojukwu (1986) 1 NWLR (Pt.18) 621; Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539; First African Trust Bank Ltd v. Ezegbu (1992) 9 NWLR(Pt. 264) 132/(1993) 6 SCNJ 122; Ngere v Okuruket ‘XIV’ (2014) 11 NWLR (Pt. 147) 147; Jev v. Iyortyom (2014) 14 NWLR (Pt. 1428) 575; APC v Karfi (2018) 6 NWLR (Pt. 1616) 479; Abeke v. Odunsi (supra); Brittania – U (Nig) Ltd v. Seplat Pet Dev. Co. Ltd (Supra); Umaru v. APC (2018) 18 NWLR (Pt. 1650) 139; Umeakuana v Umeakuana (2019) 14 NWLR (Pt. 1691) 61; Ekpemupolo v. FRN (2019) 11 NWLR (Pt. 1684) 462; INEC v. Oguebego (supra). However, this hallowed principle of law is elastic. The accepted exceptions are: (a)where the party seeks leave to appeal against the order which he is in contempt; (b) where he challenges the order on the ground of lack of jurisdiction; (c) where the contemnor seeks to be heard in defence of the order; and (d) where it can be shown that there were certain procedural irregularities in making of the order which make it unsustainable, see First African Trust Bank Ltd v. Ezegbu (supra); Ngere v. Okuruket ‘XIV’ (supra); INEC v Oguebego (supra).
Now, the kernel of the respondent’s objection is erected on the applicant’s failure to pay the costs of N100,000 made in its (the respondent’s) favour on 18th April, 2019 by this Court. The High Court of Lagos State (the lower Court) coram judice: K A Jose, J., delivered the judgment, which parented the appeal, on 12th May, 2015. After its delivery, the lower Court, at the behest of the applicant’s counsel, awarded cost of N500,000 in favour of the applicant. It is located at page 41 of the supplementary record. That cost was awarded to the applicant as a successful party because, in the eyes of the law, cost follows event. It is at the discretion of Court to award costs which discretion must be exercised judicially and judiciously, see NNPC v. Klifco (Nig) Ltd. (2011) 10 NWLR (Pt. 1255) 209; Olusanya v. Osinleye (2013) 7 NWLR (Pt. 1367) 148; Luna v. C.O.P, Rivers State (2018) 11 NWLR (Pt. 1630) 269; Mekwunye v. Emirates Airlines (2019) 9 NWLR (Pt. 1677) 191. It is settled law, beyond any peradventure of doubt, that an appeal against costs is not as of right. It is incumbent on party who appeals against an order of cost to obtain leave of Court or the appeal/ground will be infested with incompetence, see Oketade v. Adewunmi (2010) 8 NWLR (Pt. 1195) 63, Section 241 (2) (c) of the Constitution, as amended.
It cannot be gainsaid, discernible from the proceedings of 12th May, 2015, which monopolise page 41 of the supplementary record, that the award was a classic exemplification of post-judgment cost. It was not granted on the footing of claim for cost in the applicant’s suit. Thus, the respondent cannot challenge its quantum, ex debito justitiae, when it conceded to part of it in the sum of N5,000, without the permission of the Court as decreed by the sacrosanct prescription of Section 241 (2) (c) of the Constitution, as amended. The respondent, in its infinite wisdom, starved this Court of any concrete evidence of appeal against the award with the imprimatur of either the lower Court or this Court. Put differently, the respondent’s conduct, vis a vis the payment of the cost of N500,000, does not fall within the constricted four walls of the exceptions when a contemnor would be heard as catalogued above. In exhibit TAI of 22nd June, 2020, attached to the applicant’s affidavit in reply to the counter-affidavit, the applicant claimed a setoff of N100,000 cost made against it on 8th April, 2019, against the respondent’s unpaid cost of N500,000 in its favour. In exhibit TA2 of 25th June, 2020, the respondent objected to the deduction. Nevertheless, the respondent’s failure to appeal against the cost of N500,000 demolishes, or at least neutralises, the efficacy/effervescence of exhibit TA2. Put simply, the respondent, with due respect, has treated the award of cost of N500,000 with disdain and contempt. In the mind of the law, a party who is in contempt of an order of Court cannot rely and cite the contemptuous act of an adversary for his own benefit, see Kulak T & Ind. Plc v. The Tug Boat M/V Japau B (2019) 3 NWLR (Pt.1658) 145. The respondent, to all intents and purposes, is more in contempt than the respondent and it has no moral or legal justification in accusing the applicant of the very act for which it is adjudged guilty, see Abeke v. Odunsi (supra). In effect, l am not equipped with the law that will compel/propel me to stigmatise the respondent as one which is disobedient of this Court’s order for cost made on 8th April, 2019 so as to drain it of the requisite jurisdiction to hear its application.
In the light of this brief legal anatomy on obedience to Court order, the disguised preliminary objection, invented by the respondent to smoke life out of the applicant’s application at its embryo, is disabled from its birth. Consequently, l overrule the objection. I will proceed to handle the applicant’s application on its merit.
The applicant’s application for amendment, which is, deeply rooted in the Court’s inherent jurisdiction, summons this Court’s exercise of judicial discretion. Discretion signifies: the right or power of a Judex to act according to the dictates of his personal judgment and conscience uninfluenced by the judgment or conscience of other persons, see Suleman v. C.O.P., Plateau State (2008) 8 NWLR (Pt. 1089) 298, Ajuwa v. S.P.D.C.N. Ltd. (2011) 18 NWLR (Pt. 1279) 797; NJC v. Dakwang (2019) 7 NWLR (Pt. 1672) 532; Nzekwe v. Anaekwenegbu (2019) 8 NWLR (Pt. 1674) 235; Adeniyi v. Tina George Ind. Ltd(2019) 16 NWLR (Pt.1699) 560. Being an exercise of discretion, the law mandates the applicant, if it must attract the favourable discretion of this Court, to furnish it with sufficient material facts that it will use, as the springboard, to exercise its discretion judicially and judiciously. This is because a Court does not dish or dash out its discretion in vacuo, material facts being, invariably, desiderata for such judicial exercise, see Dongtoe v. Civil Service Commission, Plateatu State (2001) 9 NWLR (Pt. 717) 132; Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) 203; In Re: NDIC, Adesanya v. Lawal (2007) 7 NWLR (Pt. 1032) 54; Ebe v. C.O.P. (2008) 4 NWLR (Pt. 1076) 189; Ifekandu v. Uzoegwu (2008) 15 NWLR (Pt. 1111) 58; Ani v. Otu (2017) 12 NWLR (Pt. 1578) 30.
A Judge, in exercise of discretion, must act judicially and judiciously. To act judicially denotes “…discretion bounded by the rules and principles of law, and not arbitrary, capricious, or unrestrained. It is not the indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by law, or the equitable decision of what is just and proper under the circumstances”. See Babatunde v. P.A.S. & T.A. Ltd. (2007) 13 NWLR (Pt. 1050) 113, at 149 and 150, Per Muhammad, JSC. On the other hand, “Acting judiciously … is said to import the consideration of the interest of both sides and weighing them in order to arrive at a just or fair decision”, see Babatunde v. P.A.S. & T.A. Ltd (supra), at 164, Per Ogbuagu, JSC. The applicant woke up to that judicial responsibility, presentation of material facts for use by this Court as the barometer to gauge the success of its application, when it filed copious affidavits in support of it.
As already noted, the application is staked on amendment It is imperative, in order to ease appreciation and lay proper foundation, to display salient features of the concept of amendment combed out from case-law authorities. Unarguably, the issue of amendment has become ubiquitous in adjudications in the Courts. It is invariably occasioned by the accepted fallibility of man in the process of writing documents. Etymologically, amendment traces its lexical paternity to the Latin verb “emendo-emendere” meaning “to cure, to add to, to correct an error”. In its wide context, amendment is: “A formal revision or addition proposed or made to a statute, constitution, pleading, order, or other instrument; specif., a change made by addition, deletion or correction, esp., an alteration in wording”, see Bryan A. Garner (ed.) et al, Black’s Law Dictionary, 10th edition (USA, Thomson Reuters, 2014) 99. In the immaculate words of Oputa, JSC, in Awote v. Owodunni (1986) 5 NWLR (Pt. 46) 941/(1986) 2 NSCC (vol. 17) 1359 at 1366, “amendment involves and implies an alteration, an addition to or subtraction from….” Even, substitution is held as an act of amendment, see Agbabiaka v. Saibu (1998) 7 SCNJ 305/(1998) 10 NWLR (Pt. 517) 534; SPDCN Ltd. v. Edamkue (2009) 14 NWLR (Pt. 1160) 1.
The purpose of amendment, which is at the discretion of a Court, is to determine, in an existing suit, the real question(s) in controversy between the litigating parties. It is a time-honoured principle of law that amendment can be made at any stage of proceedings in Court before judgment. Most rules of Courts do not circumscribe the number of times a party can apply for an amendment during the pendency of proceedings. It is trite that amendments could be effected before trial Courts as well as appellate Courts, that is, the Court of Appeal and Supreme Court. Sometimes, the Courts make amendments suo motu. These attributes of amendment have been confirmed by the apex Court in sea of authorities, see Alsthom v. Saraki (2000) 11 SCNJ 1; Abey v. Alex (1999) 12 SCNJ 234; Solanke v. Somefun (1974) 1 SC 141/(1974) NSCC, vol. 9, 14; Mamman v. Salaudeen (2005) 18 NWLR (Pt. 958) 474; Kode v. Yussuf (2001) 4 NWLR (Pt. 703) 392/(2001) 2 SCNJ 49; Akaninwo v. Nsirim (2008) 1 SC (Pt. 111) 151; Okolo v. UBN Ltd. (1999) 6 SCNJ 193; Ehidimhen v. Musa (2000) 8 NWLR (Pt 669) 540; SPDCN Ltd. v. Edamkue (2009) 14 NWLR (Pt. 1160) 1; Ipadeola v. Oshowole (1987) 5 SCNJ 200/(1987) 2 NSCC (vol. 18) 755. GTB Plc. v. Innoson Nig. Ltd. (2017) 16 NWLR (Pt. 1591) 181; Ikechukwu v. Nwoye (2014) 4 NWLR (Pt. 1397) 227.
There are certain principles, evolved by the Supreme Court, to guide the Courts in treating amendments of Court processes. In Chief Ojah v. Chief Eyo Ogboni (1976) 4 SC (Reprint) 87 at 92, Madarikan, JSC, stated:
It is well settled law that an amendment of pleadings should be allowed unless –
1. it will entail injustice to the respondent;
2. the applicant is acting mala fide… or
3. by his blunder, the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise….’
See also C.C.G. (Nig.) Ltd. v. Idorenyin (2015) 13 NWLR (Pt. 1475) 149; Eze v. Ene (2017) 12 NWLR (Pt. 1579) 313.
Similarly, amendment will be granted if it ensures justice, relates to a mere misnomer; does not change the nature of the claim; does not create a new suit; will cure the defects in the proceedings; will be consistent with the testimonies of witnesses being considered on appeal or will not embarrass or surprise the opponent in the proceedings, see Oguntimehin v. Gubere (1964) All NLR 169; Amadi v. Thomas Aplin & Co. Ltd. (1972) All NLR 413; Mamman v. Salaudeen (supra); Kode v. Yussuf (supra); Adetutu v. Aderohunmu (1984) 1 SCNLR 575; Gowon v. Ike-Okongwu (2003) 1 SCNJ 453; Okolo v. UBN (supra); Ehidimhen v. Musa (supra); Okafor v. Ikeanyi (1979) 3-4 SC 99/(1979) NSCC (vol. 12) 43; Eta v. Dazie (2013) 9 NWLR (Pt. 1359) 248.
In an avowed bid to castrate the application, the respondent weaved the defence that the application is not grantable because briefs of argument had been filed and exchanged by the feuding parties. In FBN PLC v. May Med. Clinics (2001) 9 NWLR (Pt. 717) 28 at 44, Uwaifo, JSC, incisively, declared:
The fact that briefs of argument have been filed and exchanged and an appeal is virtually ready for hearing will not prevent the Court from exercising its undoubted discretion to allow an amendment both to the notice and grounds of appeal and the brief of argument so long as the amendment would serve the ends of justice and fairness, and the other party can be compensated by cost.
Thus, the respondent’s chief reason for objection pales into insignificance on confrontation with this magisterial pronouncement wrapped in that ex cathedra authority. In other words, the filing and exchange of briefs of argument by the parties do not constitute any coup de grace to the success of the application. Put starkly, it will meet the ends of justice to allow the amendment since none of the negative elements, sanctioned in Ojah v. Ogboni (supra), has been established against the application. In any event, the defence of injustice, which the respondent brandishes/parades about, vaporizes in the glaring face of its inviolable indisputable right to make consequential amendment to its already filed briefs of argument. Its exercise of that right balances the justice in granting the application. The foregoing expositions, with due reverence, drown the defeasible defence of completion of filing of briefs of argument. It is lame and cannot fly.
Another defence, evolved by the respondent to emasculate the application, is pegged on insufficient reasons. I have, in due loyalty to the dictate of the law, read the averments in the applicant’s two affidavits with the finery of a tooth comb. Interestingly, they are rebellious to ambiguity. The meat of the applicant’s supplication for amendment is founded on counsel’s inadvertent error germinating from the preparation of the respondent’s brief of argument. In the view of the law, an error is “something done by a person which is incorrect or which should not have been done” Ugwu v. Ararume (2017) 12 NWLR (pt. 1048) 357 at 513, per Muhammad JSC. Human beings are prone to mistakes on the footing of fallibility. This has receive judicial recognition, see Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt. 109) 250. The general position of the law is that the Courts do not form the habit of punishing a litigant for inadvertent errors of his counsel, see Adegbite v. Amosu (2016) 15 NWLR (Pt. 1536) 405; Adegbola v. Idowu (2017) 17 NWLR (Pt. 1595) 353; Adeniyi v. Tina George Ind. Ltd. (2019) 16 NWLR (Pt. 1699) 560.
A document, whether laconic or windy, is susceptible to dents of error, infinitesimal or substantial, no matter the intelligence, brilliance and dexterity of its author. A document that exhibits the hallmark of error-proof is a quintessence of perfection which is the monopoly of God. A brief of argument, so long as it is prepared by man, cannot be on exception to infestation with errors. The bounden duty of a Court is to decide the rights of the parties, in consonance with the law, and not to penalise them for their mistakes. A refusal of the application on account of a counsel’s errors will snowball into penalising the applicant for mistakes of its counsel. It will smell of judicial sacrilege and mockery of justice to refuse the application on the footing of mistakes attributable to the respondent’s counsel. That is not the raison d’etre for the existence of Courts of law. The deflation of this defence, by an overriding interest of justice, constitutes a serious coup de grace to the potency of the respondent’s allegation against the applicant that the application was brought mala fide “… a conscious doing of a wrong arising from dishonest purpose or moral obliquity … A deliberate wrong emanating from ill-will”, see Akaninwo v. Nsirim (2008) All FWLR (Pt. 410) 621/(2008) SC (Pt. III) 151 at 310, per Tobi, JSC. Put the other way round, the applicant is not, in the least, guilty of the accusation of want of bona fide in bringing the application. On this score, l dishonour the respondent’s enticing invitation to sacrifice the application on the undeserved shrine of insufficient reason. In the end, l have no choice than to resolve the solitary issue in favour of the applicant and against the respondent.
Overall, having resolved the mono issue in favour of the applicant, the destiny of the application is obvious. It is imbued with merit. Consequently, l grant the application. Accordingly, l grant leave to the applicant to amend its respondent’s brief of argument, dated and filed on 5th April, 2019, in the manner set out in the schedule to the application. The respondent’s amended brief of argument, filed on 2nd July, 2020 is deemed as properly filed today. The respondent is granted leave to amend its appellant’s reply brief filed on 18th April, 2019 within 21days from today. The parties shall bear the respective costs they expended in the prosecution and defence of the fruitful application.
JAMILU YAMMAMA TUKUR, J.C.A.: I read in advance a draft copy of the Ruling just delivered by my learned brother OBANDE FESTUS OGBUINYA JCA, and adopt the ruling as mine with nothing further to add.
EBIOWEI TOBI, J.C.A.: I have read in advance the ruling of my learned brother, Obande Festus Ogbuinya, JCA, which ruling borders on amendment of the Appellant/Respondent’s brief. The law as I know it to be is that litigants should not be punished for the errors or inadvertence of their counsel vide Ekpemupolo & Ors vs. Edremoda & Ors (2009) LPELR-1089(SC); Akanbi & Ors vs. Alao & Anor (1989) LPELR-315(SC). Let me reproduce one of the wordings of the Supreme Court in one of these decisions. This is the case of Ogbu & Ors vs. Urum & Anor (1981) LPELR-2290 (SC) where the apex Court held thus:
“It has always been the attitude of this Court not to punish applicants for the inadvertence, or negligence, or mistake of counsel or, as in the case, the inability of counsel to carry out his duties. The Court normally leans over to accommodate such applicants in the interest of justice. (See: G.B.A. Akinyede v. The Appraiser (1971) 1 All Nigerian Law Reports 162 at p.165; Doherty v. Doherty (1964) 1 All Nigerian Law Reports 299; Tunji Bowaje v. Moses Adediwura (1976) 6 S.C. 143 at 147; Ahmadu v. Salawu (1974) 1 All Nigerian Law Reports (Part 11) 318 at 324.”
In the light of the foregoing and the fuller reasons given by my learned brother Obande Festus Ogbuinya. JCA, I cannot see any reason whatsoever to depart from the conclusion reached in the ruling.
Appearances:
F. O ARIFAYAN, ESQ. For Appellant(s)
NICK OMEYE, ESQ. For Respondent(s)
