THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED v. CHIEF ROBERT KPAI & ANOR
(2019)LCN/12651(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 5th day of February, 2019
CA/PH/308/2015
RATIO
APPEAL: THAT THE PARTY SHOULD NOT TAKE ADVANTAGE CHANGING THE SUBSTANCE OF APPEAL
“A party should not be allowed, under the guise of amendment, to take advantage by changing the substance of an appeal especially where the ends of justice will certainly be defeated. This Court does not believe that granting the Application for amendment in this case, at this stage, in this manner would be a proper and judicious exercise of discretion by the Court, because an the amendment in the circumstances would result in considerable injustice to the Appellants.” PER MOHAMMED MUSTAPHA, J.C.A.
COURT AND PROCEDURE: THAT THE COURT CANNOT LATCH ONTO THE MISTAKE OF PARTIES
“Courts are not there to gleefully latch onto the mistake of parties and decide their fates on that basis. Every conceivable ‘mistake’, as the name connotes is human, and can be corrected. As the cliche goes, to err is human. The only caveat is that the ‘mistake’ must not be fraudulent or intended to overreach, thus causing injustice to the opposing party. See OJAH V. OGBONI (1976) 1 NWLR 95, OGUNTIMEYIN V. GUBERE (1964) 1 ALL NLR 176, AMADI V. THOMAS APLIN (1972) 1 ALL NLR 409, YUSUF V. OBASANJO (2003) 16 NWLR (PT.847) 618, SHELL V. AMUBA (1999) 2 SCNJ 152 AT 160, A.C.B. V. EWARAMI (1978) NSCC 269 and OKAFOR V. IKEANYI (1979) 3-4 SC 99.” PER MOHAMMED MUSTAPHA, J.C.A.
JUSTICES
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
Between
THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED Appellant(s)
AND
1. CHIEF ROBERT KPAI
2. GONI KPAAMA
(Suing for themselves and as representing members of Barabedom family, Kegbara Dere in Gokana local government Area in Rivers State) Respondent(s)
MOHAMMED MUSTAPHA, J.C.A. (Delivering the Lead Ruling):
This is an application brought pursuant to Order 6 Rule 1 of the Court of Appeal Rules, 2016 and the inherent jurisdiction of this Court, for an Order granting leave to the Respondents/Applicants to amend their Brief of argument in terms of Exhibit ‘A’ attached to this Application and for deeming the said Brief as having been duly filed and served, appropriate fees having been paid.
The Grounds for the Application are:
1. Consequent upon the amendment of the Appellant’s Brief of argument, the Respondent amended their Brief.
2. The Respondents’ exceeded the amendment introduced into the Appellant’s Brief in Order to enable them adequately address questions of law raised in the Appellant’s Brief and fresh point of law including a Preliminary Objection.
3. Leave is necessary for the Respondents to amend their Brief filed on the 3rd of August 2017 and deem same as properly filed.
The Application is supported by a five paragraph Affidavit deposed to by Courage Ijogi with Exhibits A and B, the schedule of amendment and Respondents’ Proposed Amended Brief of Argument are attached respectively.
The Appellants/Respondents did not file a Counter Affidavit to the Application in opposition to the Application to amend.
This Court Ordered parties to file Written Addresses on the 27th of November, 2018. The Respondents/Applicants? Written Address was filed on the 10th of December, 2018 and settled by Stanislaus Agbo Esq., of Counsel wherein it was submitted that a Brief of argument can be amended at any stage irrespective of whether parties have exchanged Briefs. Learned Counsel referred this Court to FIRST BANK OF Nigeria PLC V MAY MEDICAL CLINICS & DIAGNOSTIC CENTER & ANOR LTD (2001) LPELR-1282-SC, AKINGBOLA & ANOR V INTERCONTINENTAL BANK PLC (2014) LPELR-22417-CA and NATIONAL UNIVERSITIES COMMISSION V ALLI & ANR (2013) LPELR-21444-CA.
That the Appellants will not be prejudiced by the grant of the Order especially as they did not counter Paragraphs 4 (i), (j) and (k) of the Affidavit in support of the Respondents? Affidavit. The position of the law being, depositions not challenged are deemed admitted. Learned Counsel referred to SENATOR ABUBAKAR SADIQ YAR DADUA & ORS V. SENATOR ABDU UMAR & ORS (2014)-LPELR-24217-SC and ELIZABETH MABAMIJE V HANS WOLFGANG OTTO (2016) LPELR-26058-SC and UGWUANYI V NICON INSURANCE PLC (2013) LPELR-20092-SC.
Learned Counsel further submitted while referring to K LINE INC V K.R INTERNATIONAL LTD & ANOR (1993) LPELR-14928-CA that Briefs of argument cannot introduce fresh matters not taken at trial, and it is within the right of Counsel to abandon an argument.
That also, the removal of certain Paragraphs in the Respondents’ Brief cannot change the nature of the appeal, as appeals are not fought on arguments, and the amendment does not amount to overreaching; and also that the fact that a Preliminary Objection has been filed cannot bar an amendment of the process of Court. This Court was referred to ERASTUS AKINGBOLA & ANOR V INTERCONTINENTAL BANK PLC & ORS SUPRA.
The Appellants’ Written Address was filed on the 3rd of December, 2018 and it is submitted therein in opposition to the Respondents’ Brief that the Application is an attempt to overreach the Appellants as well as change the essence of the case on which parties have joined issues; as such the Court is enjoined to exercise its discretion judiciously and judicially, having regards to the facts of the case. Learned Counsel referred this Court to MAMMAN V SALAUDEEN (2005) 18 NWLR part 958 page 478 and JESSICA TRADING COMPANY LTD V BENDEL INSURANCE COMPANY LTD (1993) 1 NWLR part 271 page 538.
That amendment of process is not granted if its aim is to change the character of a party’s case or if it will prejudice or overreach. Learned Counsel referred this Court to CCG NIG LTD V IDORENYIN 13 NWLR part 1475 page 149, ODON V BARIGHA-AMANGA (2010) All FWLR part 521.
RESOLUTION:
Courts are not there to gleefully latch onto the mistake of parties and decide their fates on that basis. Every conceivable ‘mistake’, as the name connotes is human, and can be corrected. As the cliche goes, to err is human. The only caveat is that the ‘mistake’ must not be fraudulent or intended to overreach, thus causing injustice to the opposing party. See OJAH V. OGBONI (1976) 1 NWLR 95, OGUNTIMEYIN V. GUBERE (1964) 1 ALL NLR 176, AMADI V. THOMAS APLIN (1972) 1 ALL NLR 409, YUSUF V. OBASANJO (2003) 16 NWLR (PT.847) 618, SHELL V. AMUBA (1999) 2 SCNJ 152 AT 160, A.C.B. V. EWARAMI (1978) NSCC 269 and OKAFOR V. IKEANYI (1979) 3-4 SC 99.
The discretion of a Court to grant an application for amendment is exercised like in all cases judicially and judiciously. It will therefore be improper to grant an application for amendment, where it will lead to injustice, as in the case where the application is made mala fide. See IMONIKHE & ANR V A.G. BENDEL STATE & ORS (1992) 6 NWLR part 248 page 396.
In this case, the amendment is sought particularly in respect of paragraphs 4.5, 4.6, 4.7, 4.8 and 4.9 of the Respondents’ Brief, which are to be deleted.
These paragraphs state as follows:
1. The case of the Respondents (as Plaintiffs) as endorsed on the Amended Writ of Summons and Further Amended Statement of Claim is not primarily founded on the tort of negligence so as to be affected by the limitation law of Rivers state.
2. Res ipsa loquitor and the Rule in Ryland V. Fetcher and the provisions of the Oil Pipelines Act were pleaded not as basis of Respondents claim but to establish Appellant?s liability to restore Respondents’ adversely impacted land.
3. Respondent’s action is founded on the enforcement of their rights to a generally satisfactory environment favourable to `their development as guaranteed by Article 24 of the African Charter on Human and Peoples? Right (Ratification and Enforcement) Act, 1983.
4. Rights guaranteed under the African Charter are enforceable as Fundamental Right under Order 11, Rule 1 of the Fundamental Rights (Enforcement procedure) Rules, 2009.
5. Application for the enforcement of Fundamental Right are, by Order 11, Rule (1) of the Fundamental Rights (Enforcement Procedure) Rules, 2009, not affected by statutes of Limitation.
These amendments are clearly not consequential but rather a comprehensive change of the character of the appeal as presented because the Appellants in the reply Brief had submitted at paragraph 22.2 that:
‘An action primarily for the enforcement of Fundamental Right cannot validly be initiated by writ of summons as was done in this case. The legal implication of the action being one for the enforcement of the Plaintiffs’ Fundamental Rights is that the action commenced at the Court below by a Writ of Summons is incompetent ab initio.’
The Appellants went further to raise and argue a Preliminary Objection on jurisdiction and now the Respondents in a complete volte face wish to amend at this stage, not even by proffering an answer to the objection, not that it matters anyway, but a complete change of course from the position that the case of the Respondents is founded on Fundamental Rights.
This, in the considered opinion of this Court is intended to overreach and prejudice the Appellants. A party should not be allowed, under the guise of amendment, to take advantage by changing the substance of an appeal especially where the ends of justice will certainly be defeated. This Court does not believe that granting the Application for amendment in this case, at this stage, in this manner would be a proper and judicious exercise of discretion by the Court, because an the amendment in the circumstances would result in considerable injustice to the Appellants.
The Application is accordingly refused.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, MOHAMMED MUSTAPHA JCA gave me the opportunity of reading the lead judgment before it was delivered. I agree that the amendment sought would result in injustice to the Appellants. I therefore refuse the Application.
BITRUS GYARAZAMA SANGA, J.C.A.: I agree.
Appearances:
T. J. O Okpoko, Esq. SAN with him,
O. J. Irerhime, Esq. and N. E.Dozie, Esq.For Appellant(s)
G. E. Nwokofie, Esq. with him, S. L. O. Agbo, Esq. and P. Bereiwerisom, Esq.For Respondent(s)
