SAKA BURAIMOH v. TUNDE ALEJO (2014)

SAKA BURAIMOH v. TUNDE ALEJO

(2014)LCN/7344(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 1st day of July, 2014

CA/AK/05/2011

RATIO

APPEAL: AMENDMENT OF PROCESSES; WHETHER AN APPELLATE COURT IS GRANTED THE RIGHT TO GRANT AN AMENDMENT OF PROCESS IN THE INTEREST OF JUSTICE UNDER THE ORDER OF THE COURT OF APPEAL RULES

Generally under Order 4 Rule 1 of the court of Appeal Rules, 2011 this court is granted the right to grant an amendment of processes in the interest of justice. However, an amendment will not be allowed if it is sought mala fide or where it will defeat the cause of justice or where it will affect the substance of the appeal. See also the cases of Oduwaiye vs. Oresanya (1968) NMLR 430; First Bank of Nig. Plc. Vs. May Med. Clinics & Diagnostics Centre & Anor. (1996) 9 NWLR (Pt.471) 201; and Equity Bank of Nig. Ltd. vs. Alhaji Ahmadu Daura (1999) LPELR-6619 (CA). per. CORDELIA IFEOMA JOMBO-OFO, J.C.A.

PRACTICE AND PROCEDURE: RECTIFICATION OR AMENDMENT OF ERROR; WHETHER THE COURT THERE IS NO KIND OF ERROR OR MISTAKE WHICH THE COURT OUGHT NOT TO CORRECT IF IT CAN BE DONE WITHOUT INJUSTICE TO THE OTHER PARTY

JUSTICES

SONTONYE DENTON WEST Justice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria

Between

SAKA BURAIMOH Appellant(s)

AND

TUNDE ALEJO Respondent(s)

CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Lead Ruling): This Motion on Notice which is stated is dated 1st May, 2013 and filed 2nd May, 2013 is brought pursuant to Order 7 Rule 10(1) of the Court of Appeal Rules, 2011.

The brief summary of the facts leading to the application is that the appellant/applicant being the plaintiff at the High Court of Justice, Ondo State sitting at Akure had caused the issuance of a writ of summons, a statement of claim which was subsequently amended as well as other processes in the suit upon the defendant herein the respondent. These processes particularly the writ of summons, the original statement of claim and the amended statement of claim were variously filed and signed in the name of the legal firm of A. A. Ojopagogo & Co. The matter proceeded to trial after which the learned trial Judge gave judgment in favour of the respondent and against the appellant/applicant. Being dissatisfied with the judgment of the Lower Court the appellant/applicant came before this court on appeal vide a notice of appeal dated 10th August, 2009 and filed 11th August, 2009. It is in the course of the appeal that the appellant/applicant brought his said motion on notice seeking the following order of this court:
Leave to amend the writ of summons and the amended statement of claim by deleting A. A. Ojopagogo & Co. and substituting same with A. A. Ojopagogo Esq. as shown in the attached proposed amended writ of summons and further amended statement of claim marked Exhibits AP1 & AP2 respectively.
The motion is supported by a 10 paragraphed affidavit deposed to by one Chief Samuel Olonade, a Chief Litigation Officer in the Law Firm of Messrs. A. A. Ojopagogo & Co. Attached to the affidavit as Exhibits AP1 and AP2 are a copy of “Proposed Forms Of Writ of Summons” and “Proposed Further Amended Statement of Claim” respectively.

On 7th May, 2013 when the motion came up before the immediate past panel of this court for hearing, the court ordered parties on both sides to file and exchange written addresses. Consequent upon the said order the applicant filed their written address dated 23rd May, 2013 and filed 24th May, 2013. The respondent in response to the applicant’s address filed a respondent’s reply address dated 30th May, 2013 and filed 31st May, 2013.

At the hearing of the motion by this court on 2nd April, 2014, A. A. OJOPAGOGO, Esq. for the applicant adopted the applicant’s address and urged the court to grant the application. Counsel for the respondent ROTIMI OLOGUNOYE, Esq., adopted the respondent’s reply address to the applicant’s- application and urged the court to dismiss the application.

The learned counsel for the applicant distilled the following sole issue for determination of the motion:
Whether the amendment being sought is a misnomer or is premised on an incompetent process.
On the part of the respondent, he donated a lone issue for the determination of the motion and the issue reads:
Whether this Honourable Court in the exercise of its discretionary power can amend an incompetent process.
The court shall adopt the issue as formulated by the applicant in the determination of the motion.
Whether the amendment being sought is a misnomer or is premised on an incompetent process.

Applicant submits hereon that the amendment being sought by them before this court is a misnomer which this court has inherent powers to grant since the originating process which was the writ of summons was validly issued with the correct names of the parties who are all juristic persons. He referred to the cases of:
1. Njoku vs. UAC Foods (1999) 12 NWLR (Pt. 632) 557 at 565 para. E-F;
2. Nkwocha vs. Federal University of Technology (1996) 1 NWLR (Pt.422) 112;
3. Shokunbi vs. Mosaku (1969) 1 NMLR 54; and
4. Bank of Baroda vs. Iyalabani Co. Ltd, (2002) All NLR 7.

Learned applicant’s counsel further relied on the provisions of Order 5 Rule 1 of the Ondo State High Court Civil Procedure Rules, 1987 which was the rule in force at the time of the filing of the suit, in arguing that only the Registrar of the High Court can issue writ of summons and once it is issued by him it becomes valid. See also E. B. N. vs. Halilco (Nig.) Ltd. (2006) 33 WRN 75 at 97, lines 5-10.

Counsel went on to contend that from the provisions of Order 5 Rule 1 supra that the signature of a counsel or a legal practitioner for the plaintiff is superfluous and that where such a writ is not signed by a legal practitioner it will not render the writ of summons incompetent.

Counsel for the applicant submits further that where the writ of summons is not signed either by the plaintiff or his legal practitioner, the writ once issued by the Registrar will be valid and competent. He referred to Ogbuanyinya vs. Okudo (1990) 4 NWLR (Pt. 146) 551 at 560 para. B, where the Supreme Court per Belgore JSC (as he then was) said:
“It is however to be pointed out that the duty to issue a writ of summons is not that of the plaintiff. The plaintiff having applied for a writ of summons on payment of appropriate fees leaves the rest to the court.”

Counsel also submits that even though the erstwhile Rules of Court of Ondo State made provision for the plaintiff or his counsel to sign, of paramount consideration is the fact that the firm of the plaintiff’s counsel can as well endorse the writ pursuant to Order 5 Rule 12 of the Rules. Against this backdrop, the learned counsel submitted that the signing of a writ of summons in the name of the firm of a legal practitioner will not make the process incompetent since the legal practitioner is not conferred with the power to issue writ of summons but only subsequent processes such as statement of claim and motions.

The learned applicant’s counsel argued that the writ of summons being a valid process deemed to be issued by the Registrar of court is not incompetent and can be amended with the leave of this court.

Learned counsel contends in the alternative that the addition of “& Co.” to the name of the legal practitioner is a mere misnomer and can be corrected by an amendment by removing the words “& Co.”

Regarding the amended statement of claim and subsequent processes filed after the writ of summons, the learned counsel for the applicant did submit that the inclusion of “& Co.” to the name of the counsel who signed it i.e, A. A. Ojopagogo is a mere misnomer which this court can grant an order to correct by deleting “& Co.” therefrom. Counsel urged that in Unity Bank Plc. vs. DENCLAG Ltd. (2012) 18 NWLR (pt. 1332) 293 at 327, paras. B-F, the Jos Division of this court granted leave to Chief Akande SAN to amend the Notice of Appeal signed and issued by Ibrahim Hamman & Co. by replacing the last page of the notice with one signed by Chief Akande himself.

In conclusion of his submissions, learned counsel also cited the case of Oyegun vs. Nzeribe (2010) All FWLR (pt.516) 425 at 440, para. F; and Bank of Baroda vs. Iyalabani Co. Ltd. (supra) at page 341, paras. F-G where it was held that:
“It is well established principle that the object of the court is to decide the rights of the parties, and not to punish them for mistakes they made in the conduct of their case by deciding otherwise than in accordance with their rights. 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.”

The respondent on their part on the issue raised for determination recapped that pursuant to sections 2 and 24 of the Legal practitioners Act, 1990 only legal practitioners are empowered to validly sign court processes. Therefore that the provisions of Order 5 Rule 1 of the Ondo State High Court Civil Procedure Rules, 1987 which states that writ of summons shall be issued by the Registrar or other officers of the court so empowered cannot override the provisions of the LPA which is a statute and a superior law to the Rules of Court. Counsel relied on SLB Consortium vs. NNPC (2010) 3 & 4 MSJC where it was held that:
“….. what then is so important about the way a counsel chooses to sign processes. Once it cannot be said who signed a process, it is incurably bad and Rules of court that seem to provide a remedy are of no use as rule cannot override the law.”

Counsel went on to contend that the court has wide discretion in granting or refusing an application for amendment. Submits that failure to sign court processes as required by law cannot be regarded as a misnomer as such a failure renders the whole process defective and that a void originating or initiatory process is incurably bad as a result of which the court has no jurisdiction to amend same. He relied on UAC vs. MACFOY (1962) AC 152 at 160 and Madukolu vs. Nkemdilim (1962) 2 NSCC 374 at 379 to submit that a court is competent when inter alia the case coming up before it is initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.

Respondent’s counsel concluded by submitting that the provision of Order 5 Rule 1 of the Ondo State High Court supra cannot remedy the applicant’s situation. Also that the initiatory process in this case, signed by A. A. Ojopagogo & Co. was not initiated under due process and hence the same is incompetent.

He urged that as the appellant/applicant’s main appeal rests on nothing this court is to refuse the application and dismiss the appellant’s appeal in its entirety.

RESOLUTION OF THE ISSUE
It is the position of the law that an application for amendment can be made at any time before judgment and even after judgment on appeal.

The learned counsel for the applicant committed a breach of sections 2 and 24 of the Legal Practitioners Act, 1990 and he is by this application seeking to rectify or amend the error. As clearly spelt out in the Bank of Baroda vs. Iyalabani Co. Ltd. supra at page 341, paras. F-G:
“It is a well established principle that the object of the court is to decide the rights of the parties and not to punish them for mistakes they made in the conduct of their case by deciding otherwise than in accordance with their rights. 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.”
After a careful consideration of the submissions as made above, I am of the strong view that to alter or amend the writ of summons and the amended statement of claim as is being prayed for by the applicant will bring about a change in the nature and substance of the appeal already pending before this court the amendment being sought is a serious one which touches on the root of the appeal. I do not see how such an amendment can be made without over reaching or prejudicing the respondent. The motion on notice dated 1st May, 2013 and filed 2nd May, 2013 is hereby refused for lacking in merit.

Motion is accordingly dismissed.

SOTONYE DENTON WEST, J.C.A.: I read before now the lead Ruling delivered by my learned brother CORDELIA IFEOMA JOMBO-OFO, JCA. I agree with my learned brother that the amendment sought is a serious one which touches on the root of the appeal and it is left to be seen how such an amendment can be made without causing hardship on the Respondent.

In any case, the issue of an unsigned/unendorsed-Writ of Summons is a fundamental issue which bothers on the jurisdictional competence of the court.

“A. A. Ojopagogo & Co.” is not listed as a legal practitioner qualified to carry out legal practices in Nigeria. See Okafor vs. Nweke (2007) 10 NWLR (pt. 1043) pg. 521 @ 531. The combined effect of these provisions is that for a person to be qualified to practice as a legal practitioner, he must have his name in the roll, otherwise he cannot engage in any form of legal practice in Nigeria.
Although it is my view that this stipulation in Okafor’s-case (supra) is causing a lot of havoc which unsavourily is on the innocent litigants who has employed the services of counsel but are now being shut out from access to justice just because their counsel had been negligible in duty during the preparation of court processes by the failure to insert his personal name on the writ or any processes instead of merely using the firm name – ABC & CO.

It is for the foregoing reasons and the very elaborate reasons in the lead Ruling that I hold that the application dated 1st May, 2013 and filed 2nd May, 2013 is lacking in merit.
I also dismiss the motion.

MOJEED ADEKUNLE OWOADE, J.C.A.: I had the opportunity to read in advance the Ruling just delivered by my learned brother, CORDELIA IFEOMA JOMBO-OFO, JCA. I agree with the reasoning and conclusion that the application lacks merit. I do dismiss it. I abide by the consequential order(s) made therein.

Appearances

Prince A. A. OjopagogoFor Appellant

AND

Rotimi Olagunoye, Esq.For Respondent