THE SHELL PETROLEUM DEV. COMPANY OF NIG. LTD. V. AKIRI MARINE ENG. CO. LTD.
(2010)LCN/3830(CA)
In The Court of Appeal of Nigeria
On Friday, the 28th day of May, 2010
CA/B/198/2002
RATIO
COURT: HOW SHOLD THE COURT EXERCISE ITS DISCRETION IN THE APPLICATION TO AMEND PLEADINGS
The application to amend pleadings called for the exercise of discretion. Judicial discretion must be exercised judicially and judiciously. See OWNERS OF THE M .V. LUPEX V. N.O.C.S. LTD (2003) 6 SC Part II 62 at 71. PER GEORGE OLADEINDE SHOREMI, J.C.A.
WORDS AND DEFINITION: JUDICIAL DEFINITION OF AMENDMENT
What is an amendment? It has been judicially defined in the case of A.E. IPADEOLA & ANOR V. ABIODUN OSHOWOLE (1987) 5 SCNJ 200 and 203 to mean the following:
“An amendment is nothing but the correction of an error committed in any process of law or in equity and which is done either as of course or by consent of parties upon notice to the court in which the proceedings is pending. The object of courts is to decide the right of the parties and not to punish them for mistakes they may make in the conduct of their case by deciding otherwise than in accordance with their right. There is no kind of mistake or error which if not fraudulent or intended to overrich the court cannot correct, if this can be done without injustice to the other party. Blunders may occur and nowadays they do occur with disturbing regularity but all the same the court should not be stampeded into chasing the shadows of this blunders rather than facing the substance of the justice of the case.” PER GEORGE OLADEINDE SHOREMI, J.C.A.
ACTION: EFFECT OF AN AMENDMENT OF PLEADINGS
The effect of an amendment as stated in ROTIMI V. MACGREGOR 2 Appellate courts Landmark Case 363 the Supreme Court held, speaking about the effect of an amendment of pleadings HODSONI J. observed in WARNER V. SAMPSON & ANOR I do not think that this amendment can be ignored once pleadings are amended, what stood before amendment is no longer before the court and no longer define the issues to be tried. See SHASI V. SMITH (2009) 18 NWLR (Pt 1173) page 330 where the duty of the court is said is to consider the case before it in the light of the complaints of the parties. It has no business setting up for the parties a case different from the one set up by the parties in their pleadings. To do so will result in the denial to one or the other of the parties of his right to fair hearing. PER GEORGE OLADEINDE SHOREMI, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
Between
THE SHELL PETROLEUM DEV. COMPANY OF NIG. LTD. Appellant(s)
AND
AKIRI MARINE ENG. CO. LTD. Respondent(s)
GEORGE OLADEINDE SHOREMI, J.C.A. (Delivering the Leading Judgment): After hearing arguments of learned counsel for the parties on an application to amend the amended statement of defence, the learned trial Judge on 14/2/99 delivered a ruling allowing the amendment sought in part and rejected the amendment in part. In doing so the learned, trial Judge stated thus:
“The court has thoroughly examined the submissions and the affidavit and counter affidavit and the court is of the view that there is some element of ambush in the amended statement of defence. For instance, the complete removal of paragraph 7 of the statement of defence which admitted plaintiff case. The court is of the view that this type of removal will be prejudicial to plaintiff subject to the retention of this paragraph all other amendments contained in the further amended statement of defence are hereby ordered as prayed. (Pages 51 line 24 and 52 lines 1-4).”
Dissatisfied with that part of the ruling refusing leave to amend the paragraph 7 of the amended statement of defence the Appellant appealed to this honourable court on 21/12/99 on two grounds of appeal quoted hereunder:-
GROUNDS OF APPEAL:
1) The learned trial Judge erred in law in refusing the Defendant’s application to amend its paragraph 7 of the Amended Statement of Defence at that stage when:
(a) hearing has not commenced and no witness has testified before him.
(b) the reasons given for the amendment were admitted by the Plaintiff and accepted by the learned trial Judge.
2). The learned trial Judge misdirected himself in law in holding that:
“The court is of the view that this amendment will be prejudicial to the Plaintiff” when learned trial Judge has not commenced any trial.
There is also one additional ground of appeal.
In his brief adopted and relied upon by his counsel Mr. Uwhubetine, the Appellant who was the defendant in the lower court distilled one Issue for determination thus:-
“Whether the learned trial Judge was right in refusing to grant the amendment as sought? Or Put another way.
Whether the learned trial Judge was right in granting the amendment sought subject to Retention of Paragraph 7 of the amended statement of defence sought to be amended”.
The said brief of argument is dated and filed on 14/2/05 deemed properly filed and served on 30/3/07. Reply Brief dated 20/2/08 deemed filed on 4/3/08.
The Respondent adopted and relying on his brief dated 15/9/06 deemed filed on 4/6/07 also distilled two issues for determination thus:
“1). Whether the learned trial Judge was wrong to have refused the Appellant’s application for amendment in part or in the manner that he did.
2). Whether from the circumstance of this case, the Ruling of the lower court refusing in part Appellant’s application for amendment had denied the Appellant the opportunity of fair hearing”. There is no dispute about the facts of this case as both parties agree that the appeal arose following leave to amend the statement of claim granted by the learned trial Judge on 23/3/98, the defendant by a motion on notice dated 16/7/98 and filed on 17/7/98 prayed the court for leave to amend its amended statement of defence. The motion and the supporting affidavit and the proposed further amendment statement of defence are contained at pages 39-48 of Record. The relevant parts for the purpose of this appeal are quoted hereunder:-
“1) Granting leave to the Defendant to amend its Amended Statement of Defence in the manner formulated and underlined in the ‘Further Amended Statement of Defence exhibited hereto and marked Exhibit ‘A’.
2) Deeming the Further Amended Statement of Defence exhibited hereto and marked Exhibit ‘A’ as properly filed and served, the appropriate filing fees having been paid. FURTHER AMENDED STATE OF DEFENCE
1) The Defendant denies paragraph 1of the statement of claim and put plaintiff to strict proof of the averments therein contained.
2) Defendant admits paragraphs 2, 3, 4, 5 and 7 of the statement of claim and adds that the surplus acoustic tiles which formed the subject-matter for sale were put in an open space in the defendant’s container yard at Edjeba for bidders inspection. The Plaintiff made an offer to purchase the tiles at 25k per piece vide its letter of offer dated 27th July, 1989.
3) In further answer to paragraph 7 of the amended statement of claim, the defendant avers that the plaintiff’s offer was accepted by the defendant on the following terms and conditions:
(a) Plaintiff was required to pay in cash or certified Bank draft the offer price.
(b) Payment shall be made within two weeks from the date of receipt of the letter of acceptance.
(c) After payment aforesaid the Plaintiff must remove the acoustic tiles from the defendant’s Ejeba Housing complex within two weeks from the date of payment.
(d) Sale of the materials is on the basis of AS IS WHERE IS and the defendant shall not be responsible for any loss, damage or costs incurred by the plaintiff while the materials are still in the defendant’s premises.
The Defendant shall at trial found on defendant’s invitation to tender dated 10/7/89, the Plaintiff’s letter of offer dated 27/7/89 and defendant’s letter of acceptance dated 14th December, 1989.
4) In answer to paragraphs 8, 9 and 10 of the statement of claim the defendant avers that the items it accepted to sell to the Plaintiff were the acoustic ceiling tiles kept in the open space in the said defendant’s premises and not the tiles kept elsewhere. The Defendant does not have the original copy of the bill of sale as the original is still in the possession of the Plaintiff. Plaintiff shall at the trial be put to strict proof of the averments wherein contained and would be required to produce and show to the court the said original copy.
5) Defendant admits paragraphs 11 and 12 of the statement of claim only to the extent that the payment made by the Plaintiff was understood to be in respect of and referable only to the tiles defendant put out for sale and not for any other tiles. Plaintiff shall be put to strict proof of the averments therein contained.
6) The defendant denies paragraphs 13, 14, 15, 16 and 17 of the statement of claim and states that four (4) persons who bidded for the purchase of the tiles and they were Uloho Industrial Co. Limited, Glorvlux Ass. Ind. Nig. Limited, Oro-Elila (Nig.) Limited and the Plaintiff. The Plaintiff was informed of defendant’s acceptance of plaintiff’s offer vide a letter dated 14/12/89 which was dispatched on the same day. When as at the 19/2/90, Defendant did not receive any payment from the Plaintiff in respect of the items sold, defendant caused its letter dated 19/2/90 to be written to the Plaintiff.
7) Sometime in February, .1990 Plaintiff representatives called at defendant premises in response to Defendant’s said letter wherein the defendant inquired whether the plaintiff was still interested in purchasing, and collecting the items otherwise they will be disposed of howsoever. The Plaintiff’s representative explained plaintiffs delay in evacuating the items and promised to collect them. The Plaintiff later made payment to the defendant without any assurances from the defendant. The Defendant did not report any approval retrospectively or accept any conditions as alleged or at all.
10) The Defendant does not admit any of the allegations in paragraphs 25, 26, 27, 28 and 29 of the statement of claim and that at no time did the Plaintiff through its director, Prince S.O. Akiri or any person had meeting or audience with:
(a) Mr. Don O’Niel or Mr. Wilink who promised the release of the tiles as alleged or at all.
(b) Alhaji (Chief) B.A. Ojoye or Dr. Lalude who issued any threat or warning as alleged or at all.
Defendant avers that it consistently maintained that it sold to the Plaintiff the tiles which were surplus to its need (which were in fact …) and no other.
COUNTER AFFIDAVIT of the Plaintiff show thus:-
1) That I am a Litigation officer in Law Firm of S.O. Tonwe & Co., Solicitors for the Plaintiff in this case and by virtue of my position, I am familiar with the facts of this case.
2) That I have the authority and consent of my employer and the Plaintiff to this affidavit.
3) That Plaintiff’s Amended Statement of Claim dated 2/3/98, relied on Defendant’s letter dated 10/9/90 in paragraph 31(v) of Plaintiff’s Amended Statement of claim. The said statement of claim is annexed hereto as Exhibit “AA”.
4) That by paragraph 7 of the defendant’s Amended Statement of Defence dated 31st day of July, 1996, Defendants admitted the existence of the said letter and that defendants would rely on it. The said statement of defence annexed hereto as Exhibit “BB”.
5) That by paragraph 12 of the proposed further Amended Statement of Defence, Defendant is denying the existence of feigned ignorance or unawareness of the said letter dated 10/9/90.
6) That Plaintiff averred in his amended statement of claim that Plaintiff would rely on the said letter dated 10/9/90.
7) That Defendant’s application is designed to ambush the Plaintiff.
8) That Defendant’s application is made mala fide and will unfairly prejudice the Plaintiff or Plaintiff’s action.
Refusal of the learned trial Judge to grant the said amendment as sought resulted into this appeal.
In going through the records and Briefs of argument of both parties. I am the of the view that the issue whether the trial Judge was right in refusing to grant the amendment as sought will suffice to settle the matter. The consideration of this appeal will therefore be based on this issue. In his argument the Appellant (Defendant in the lower Court) quoted Order 26 of the Bendel State High Court (Civil Procedure Rules 1988) as applicable to the Delta State particularly Rule 2. He argued that the court had earlier granted the Respondent (i.e. the Plaintiff in the lower court) leave to amend its statement of claim on 23/3/98 and before trial and before the Respondent opened its case Appellant applied for leave to amend statement of defence as underlined in paragraph 2, 3, 4, 6, 7, 8, 10, 11, 12 and 14 (pages 42-48 of Record).
He also quoted paragraphs 3, 4, 5 and 6 (page 41 lines 3-20 of the Records. He argued that by the ruling the trial Judge quoted paragraph 2, 3, 4, 6, 8, 10, 11, 12 and same paragraph 7. He argued that in granting the above named paragraphs the trial Judge was satisfied with the reasons adduced by the Appellant i.e. Defendant. He quarried why the trial Judge singled out paragraph 7 and retaining the original paragraph 7. The reasons given by him are quoted herein before.
He argued that it is clear that there was no where in the original paragraph 7 where the Appellant admitted Plaintiff’s case. He argued that the Judge failed to consider the whole pleadings as a whole relying on the cases of NIG. BOTTLING CO. PLC V. OBOH (2000) 11 NWLR (Part 677) 212 at 221; PAN ASIAN CO. LTD V. NATIONAL INS CO. NIG LTD (1982) 9 SC 1 at 48; TITILOYE V. OLUPO (1997) 7 NWLR (Pt 105) 519 at 532. He argued that the claim by the trial Judge that the proposed amendment of paragraph 7 amounted to complete removal of the facts averred to therein is not supported by the proposed amendment. He said the said paragraph 7 is reproduced in paragraph 10 of the proposed further amendment. He argued that the trial Judge held that the amendment of paragraph 7 will be prejudicial to the Plaintiff. This can not be true he claimed. He argued that the Respondent had the right to reply to same. He said prejudice can only arise if the Respondent closed its case. Refers to ADETUTU V. ADEROHUNMU (1984) BSC (Vol. 15) 389 and GEORGE V. DOMINION FLOUR MILL LTD. 1963 ANLR 70.
He argued that the trial Judge refusal of the amendment as proposed is prejudicial to the Appellant’s defence who is denied the opportunity of a fair trial. Refers to B.Q.N. LTD. NA ‘BATURE 1994 1 NWLR (Pt 319) 235 at 246 D-E. He argued that the amendment could not be said to constitute an ambush or prejudicial to the Respondent.
He argued that the trial Judge acted under a misapprehension of the nature and effect of the amendment.
He concluded that, this court has the right to interfere with the wrong decision of the lower court refusing the amendment. He relied on UNIVERSITY OF LAGOS V. AIGORO (1985) 1 NWLR (Part 1) 156 at 168; AWANI V. EREJUWA (1976) 11 SC 307; He urged the court to resolve the single issue on this appeal in its favour and therefore the appeal should be allowed.
The Respondent in his brief of argument adopted and relied upon by Ogbeye Esq argued that amendment will entail injustice or surprise or embarrassment to the other party as the appellant has done some injury to the Respondent which can not be compensated by cost or otherwise. He said the discretion ought to be exercised so as to do what justice and fair play require in a particular case. He relied on the case of BANK OF BARODA V. IYALABANI COP. LTD. (2002) FWLR (Part 24) 454 at 526 D-F and OJAH V. OGBONI (1976) 4 SC 69. He argued that he vehemently denied the averments contained in the affidavit in support. He argued that the Appellant’s position in the proposed amendment is clearly inconsistent with his earlier position. He urged the court to hold that the proposed amendment is unfair to the Respondent and an attempt to suppress or conceal a vital document especially the letter dated 10/9/90 that will assist the trial court to determine the real issues in controversy between the parties. He said amendment can only be allowed to determine real question in controversy between the parties. He argued that no matter how well couched on amendment is, if it entails injustice or fraudulent in its surface and effect or lacks bona fide will be refused. He said the Appellant has set an ambush of the way of the Respondent. He said the amendment will deny the Respondent use of a vital document a document he had earlier admitted. He said by Order 26 Rules I and of the Bendel State High Court (Civil Procedure Rule 1988 a court has the discretion to allow or not to allow the amendment of pleadings but must exercise the discretion judicially and in the interest of justice. He relied on OYEYEMI V. IREWOLE LOCAL GOVERNMENT (1993) 1 NWLR 9Pt 270) 462 at 475 H-477 B-C; STAG ENG. COY. LTD V. SABAL CO NIG LTD.; MURH NURCHANDANI TIP TOP IND. LTD V. BABATUNDE PINHERO (1992) 2 NWLR PT 225 – 539 at 558 v. 559 H-A
He further argued that, there is no breach of Appellant’s right to fair hearing. He urged the court to dismiss the appeal as it is misconceived.
In his Reply Brief the Appellant argued that there is no wrong doing or any dishonesty on the part of the Appellant in its pleading by retracting a previous admission relying on the case of WARRI V. ETSANOMI & ANOR Appeal No. CA/B/128/2002 delivered on 3/2/05 by Ngwuta JCA. He urged the court to discountenance the Respondent’s argument and allow the appeal.
Having stated the argument of both parties and the authorities guiding the principle of amending pleadings, can one say that the trial court was right in refusing the amendment as sought? Rule 2 of Order 26 of the Bendel State (Civil Procedure Rules 1988 applicable in the Delta State provides thus:
“2 The court or a Judge in chamber may at any stage of Proceedings allow either party to alter (underlined mine) or amend his endorsement or pleadings, in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.
This further amendment, the subject of the appeal arose after the Respondent was allowed to amend its statement of claim and before trial the Appellant applied for this amendment.
Let me set out the said original Paragraph 7 that the trial Judge ordered to be retained. It reads:-
“7 Defendant does not admit paragraphs 18, 20, 21(a) (b) (c), 22, 23 and 24 of the statement of claim and avers that at no time did the plaintiff through its Director, Prince S.D. Akiri, or any other person had meeting or audience with:
(a) Mr. Don – O’Niel or Mr. Wilink, who promised the release of the tiles as alleged or at all.
(b) Alhaji (Chief) B.A. Ojoye or Dr. Lalude who issued any threat or warnings as alleged or at all.
Defendant avers that it had consistently maintained that it sold only the damaged tiles to the Plaintiff and no other and that Plaintiff was not entitled to evacuate Defendants files in good state of use and which were not the subject matter of the contract between the Plaintiff and Defendant. Defendant shall found on its letters dated 10/9/90 and 25/1/90 respectively.”
Paragraph 7 of the proposed further amendment statement of defence also reads I quote “7
“7. Sometimes in February, 1990 Plaintiff representative called at defendant premises in response to Defendant’s said letter wherein the defendant inquired whether the Plaintiff was still interested in purchasing and collecting the items otherwise they will dispose of howsoever. The Plaintiffs representative explained Plaintiffs delay in evacuating the items and promised to collect them. The Plaintiff later made payment to the defendant without any assurances from the defendant. The Defendant did not report any approval retrospectively or accept any conditions as alleged or at all”
Paragraph 10 of the further amended statement of defence reads I quote:-
“10. Defendant does not admit any of the allegations in paragraphs 25, 26, 27, 28 and 29 of the statement of claim and states that at no time did the Plaintiff through its Director, Pince S.O. Akiri, or any other person had meeting or audience with:
(a) Mr. Don O’Niel or Mr. Wilink, who promised the release of the tiles as alleged or at all.
(b) Alhaji (Chief) B.A. Ojoye or Dr. Lalude who issued any threat or warnings as alleged or at all.
Defendant avers that it had consistently maintained that it sold to the Plaintiff the title which were surplus to its needs (which were in fact bad) and no other.” (Page 45 lines 18-29).
The application to amend pleadings called for the exercise of discretion. Judicial discretion must be exercised judicially and judiciously. See OWNERS OF THE M .V. LUPEX V. N.O.C.S. LTD (2003) 6 SC Part II 62 at 71.
What is an amendment? It has been judicially defined in the case of A.E. IPADEOLA & ANOR V. ABIODUN OSHOWOLE (1987) 5 SCNJ 200 and 203 to mean the following:
“An amendment is nothing but the correction of an error committed in any process of law or in equity and which is done either as of course or by consent of parties upon notice to the court in which the proceedings is pending. The object of courts is to decide the right of the parties and not to punish them for mistakes they may make in the conduct of their case by deciding otherwise than in accordance with their right. There is no kind of mistake or error which if not fraudulent or intended to overrich the court can not correct, if this can be done without injustice to the other party. Blunders may occur and nowadays they do occur with disturbing regularity but all the same the court should not be stampeded into chasing the shadows of this blunders rather than facing the substance of the justice of the case.”
The court has through the years taken a stand that however negligent or careless may have been the slip however late the proposed amendment it ought to be allowed if this can be done without injustice to the other side.
It is only where the application to amend is made mala fide or if the proposed amendment would cause unnecessary delay or in any way unfairly prejudice the other and opposite party or where the amendment sought is quite irrelevant or useless or would only and merely raise technical issues that leave to amend may be refused. In J.M. AOUAD V. R.O. NZIMIRO & M.N. NZIMIRO 14 WACA 73. It was held that on amendment which changed the subject matter of the action would not be allowed.
In this case the reason given for the refused of the amendment is that complete removal or Paragraph 7 of the statement of defence which admitted Plaintiff s case has an element of ambush. The trial court is of the view that this type of removal will be prejudicial to the Plaintiff. I disagree with the opinion of the trial court. He has descended into the arena and had concluded the trial in his ruling.
By any standard there is nothing in the amendment to suggest an ambush on the part of the Appellant or anything to suggest that the Respondent is prejudicial. The Appellant is not supposed to make a case for the Respondent. He has opportunity to reply and plead the letter if need be.
The amendment in this case could not possibly prejudice, injure surprise, overreach or embarrass or work any injustice to the Respondent even if it amounts to abandoning an admission.
Here I agree with my learned brother Ngwuta JCA in his judgment in WARRI V. ETSANOMI CA/B/128/02 a judgment of this court decided on 3/2/05 where he stated thus:-
“Another crucial factor in the appeal is the admission of the legal capacity of the 2nd Respondent in the original pleading. A party is bound by his pleading and amended pleading is the operative pleading binding on the pleader. I do not share the view of the Respondent that the Appellant is estopped from denying, by way of amendment, what he earlier admitted. An admission in the pleading which is alter found to be made in error or ignorance of some existing facts or law can be corrected as error or blunder by way of amendment.”
The effect of an amendment as stated in ROTIMI V. MACGREGOR 2 Appellate courts Landmark Case 363 the Supreme Court held, speaking about the effect of an amendment of pleadings HODSONI J. observed in WARNER V. SAMPSON & ANOR I do not think that this amendment can be ignored once pleadings are amended, what stood before amendment is no longer before the court and no longer define the issues to be tried. See SHASI V. SMITH (2009) 18 NWLR (Pt 1173) page 330 where the duty of the court is said is to consider the case before it in the light of the complaints of the parties. It has no business setting up for the parties a case different from the one set up by the parties in their pleadings. To do so will result in the denial to one or the other of the parties of his right to fair hearing.
In the final analysis I allow the appeal the order of the lower court is set aside and in its place I allow the proposed Further amended Statement of Defence of the Appellant. I order that the case shall be transferred to another Judge for determination.
I award cost of N30,000 against the Respondent.
AMINA A. AUGIE, J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother, Shoremi, JCA, and I agree with his reasoning and conclusion. The law is settled that a trial Court has powers to grant applications for leave to amend pleadings at any stage of the proceedings. See Owena Bank V. Olatunji (2002) 13 NWLR (pt 781) 259, & Gowan V. Ike- Okongwu (2003) 6 NWLR (pt 815) 38 SC. However, an amendment will be refused where, if allowed, it will entail injustice or surprise or embarrassment to the other party; where the Applicant is acting mala fide; or where the Respondent cannot be compensated with costs or otherwise. See Ikyernum V. Iorkumbur (2002) 11 NWLR (pt 777) 52, & Fagbule V. Rodrigues (2002) 7 NWLR (pt 765) 188.
In this case, my learned brother has said it all and I have nothing useful to add except to caution Judges to be careful not to use the wrong words in a Judgment, which might show their leaning on a case. The lower Court’s statement – “the Court is of the view that there is some element of ambush in the Amended Statement of Defence”, was not necessary and should have been avoided in the lower Court’s Ruling.
In the circumstances, I also allow the appeal and set aside the order of the lower Court and in its place allow the proposed amendment. I abide by the orders in the lead Judgment, including that as to costs.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I agree.
Appearances
Chief T. E. Uwhubetine Esq. with Mrs. T. PinnickFor Appellant
AND
Mr. G. O. Ogbeye Esq.For Respondent
