UBN PLC v. EMEH
(2022)LCN/16537(CA)
In the Court of Appeal
(OWERRI JUDICIAL DIVISION)
On Friday, February 25, 2022
CA/OW/541/2018
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Ibrahim Wakili Jauro Justice of the Court of Appeal
Between
UNION BANK OF NIGERIA PLC APPELANT(S)
And
CHIEF (HON.) OKECHUKWU EMEH (Trading In The Name And Style Of Menax United Enterprises) RESPONDENT(S)
RATIO
THE POSITION OF LAW ON WHAT CONSTITITUES GROUNDS OF LAW ALONE IN AN APPEAL
On what constitutes grounds of law alone in an appeal, the Supreme Court set out the same explicitly in the case of CPL Industries Ltd. v Union Homes & Savings Ltd. (2021) 9 NWLR Part 1781 Page 201 at 233-234 Para F-C per Garba JSC, as follows:
“1. Where a ground of appeal shows or alleges a misapprehension or misapplication of the law to undisputed, admitted or provided facts in a case by a lower Court, it is ground of law. Maigoro v. Garba (1999) 10 NWLR (Pt. 624) 555, G.E.C. v. Akande (2010) 18 NWLR (Pt. 1225) 596.
2. Where the question in a ground of appeal is on legal interpretation, implication, import and purport of a document such as a deed, terms of contract, agreement, word or phrase and inference to be drawn therefrom, the ground is of law alone. See Ogbimi v. Niger Constr. Ltd. (2006) 9 NWLR (Pt. 986) 474, F.B.N. Plc v. Abraham (2008) 18 NWLR (Pt. 1118) 172.
3. Where a ground complains that an inference drawn by a lower Court is absolutely unsupported by the evidence, or that the decision is so manifestly unreasonable, then it is a ground that raises an issue of law. See U.B.A. Ltd. v. Stahlbau GMBH & Co. KG. (1989) 3 NWLR (Pt. 110) 374, Shanu v. Afribank Nig. Plc (2000) 13 NWLR (Pt. 684) 392.
4. A ground of appeal which raises the issue of jurisdiction is one of law. – G.E.C. v. Akande (supra).”
It has also been held that where the ground of appeal shows that the Court of trial or appellate Court misunderstood the law or misapplied the law to the proved or admitted facts, the same constitutes a ground of law. See Allanah v. Kpolokwu (2016) 6 NWLR Part 1507 Page 1 at 34 Para B-F per Sanusi JSC; Ehinlanwo v Oke (2008) 16 NWLR Part 1113 Page 357 at 389 Para C-E per Onnoghen, JSC (as he then was); Umanah (Jnr.) v NDIC (2016)14 NWLR Part 1533 Page 458 at 478-479 Para A-A per Rhodes-Vivour, JSC. PER ADEFOPE-OKOJIE, J.C.A.
WHETHER OR NOT A PARTY CAN AMEND HIS ORIGINATING PROCESS WITH LEABE OF THE JUDGE AT ANY TIME BEFORE CLOSE OF PRE-TRIAL PROCEEDINGS
The resolution of the issue in question calls for the interpretation of Order 24 Rule 1 of the High Court of Abia State (Civil Procedure) Rules, 2014, which provides as follows:
“Order 24
AMENDMENT
1. A party may amend his Originating Process and/or pleading with leave of the Judge at any time before the close of pre-trial proceedings and not more than twice during the trial before Judgment.”
The cardinal principle in the interpretation of statutes, as rightly submitted by both Counsel, is that where the provision of a statute is clear and unambiguous, the duty of the Court is to simply interpret the clear provision by giving the plain wordings their ordinary meaning, without more. See Abacha v A/G Federation (2021) 10 NWLR Part 1783 Page 129 at 158 Para C-D per Kekere-Ekun JSC, Anya v Anya (2020) 9 NWLR Part 1729 Page 411 at 421 Para H per Abba Aji JSC; Registered Trustees of the Airline Operators of Nigeria v Nigerian Airspace Management Agency (2014) 8 NWLR Part 1408 Page 1 at 41 Para B-C; (2015) All FWLR Part 762 Page 1786 at 1812 Para B-D per Okoro JSC. PER ADEFOPE-OKOJIE, J.C.A.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Abia State High Court, Osisioma Judicial Division, delivered on the 27th day of April, 2018, in Suit No: HOS/82/2014 by Hon. Justice C. H. Ahuchogu, granting the application of the Respondent, as Plaintiff, for amendment. Aggrieved, the Appellant appealed to this Court, by Notice of Appeal filed on 9/5/2018.
In prosecution of the appeal, the Appellant filed a Brief of Arguments on 12/4/19, settled by F.O. Okonkwo Esq., in response to which the Respondent filed a Notice of Preliminary Objection, arguments in respect of which were contained in the Respondent’s Brief of Arguments filed on 25/4/19 and settled by M.U. Uzoma Esq. In response to the Preliminary Objection, the Appellant filed a Reply on 29/4/19.
At the hearing of the appeal on 31/1/2022, while the Respondent’s Counsel was present in Court, neither the Appellant nor Counsel were in Court, in spite of notification to them of the proceedings. The appeal of the Appellant was thus deemed duly argued, pursuant to Order 19 Rule 9 (4) of the Court of Appeal Rules 2021. In view of the importance of the Preliminary Objection, it shall be taken first, in the event that its success truncates the appeal.
Preliminary Objection
The Preliminary Objection of the Appellant, filed on 25/4/19 contends that “….the Interlocutory Appeal is incompetent, the leave of the trial Court or that of the Court of Appeal having not been first sought and obtained”.
The grounds of the objection are as follow:
“(1) An order granting or refusing application for amendment is an order made in the exercise of discretion of Court.
(2) An appeal challenging the exercise of discretion of Court ought to be done with the prior leave of the trial Court or that of the Court of Appeal.
(3) The appellant never sought or obtained the leave of the trial Court or that of the Court of Appeal before filing this appeal challenging the exercise of the discretion of the trial Court in granting leave to the respondent to amend his pleadings.”
Respondent’s Arguments
Arguing the objection, learned Counsel to the Respondent contended that an order granting or refusing an application for amendment is an order made in the exercise of the discretion of the Court and that an appeal against the exercise of the discretion of the Court ought not be done without the leave of the trial Court or that of the Court of Appeal. This, he said, is because a challenge to the improper exercise of discretion is a question of mixed law and facts, which require the leave of the Court for the appeal to be competent and which was never done. He asked the Court to declare the appeal incompetent, citing CBN v Okojie (2002) 8 NWLR Part 768 Page 48, UBN Plc v Sogunro (2006) 16 NWLR Part 1006 Page 504, Ogidi v Egba (1999) 10 NWLR Part 621 Page 42.
Appellant’s Reply to Preliminary Objection
Learned Appellant’s Counsel submitted, in response, that the Respondent failed to comply with the provision of Order 10 Rule 1 of the Court of Appeal Rules 2016 in failing to give the Appellant three clear days’ notice prior to the hearing of the appeal. The Preliminary Objection should thus be struck out. The same should also have been raised at the earliest opportunity and before the filing of briefs of argument. The grounds of the Preliminary Objection, Counsel further contended, are a misconception of the issue before this Court, arguing further that it is not automatic that the exercise of discretion is necessarily an issue of fact or mixed law and fact, citing Riruwai v Shekarau (2009) All FWLR Part 461 Page 975.
Counsel argued further that a look at the grounds of appeal show that what is sought is the interpretation of Order 24 Rules 3 and 4 of the Abia State High Court (Civil Procedure) Rules, and that in civil proceedings appeals lie as of right to the Court of Appeal, by virtue of Section 241(1) of the 1999 Constitution, the ground of appeal being one involving questions of law alone, whether or not the decision is final. He cited Attamah v Anglican Bishop of the Niger (1999) 9 SCNJ 23 and ASHDC v Emekwue (1996) 1 NWLR Part 426 Page 505.
RESOLUTION
I must first dispense with the contention of the Appellant that the Respondent’s Preliminary Objection was filed contrary to Order 10 Rule 1 of the Court of Appeal Rules, which require that notice of the Preliminary Objection be given to the Appellant three clear days before the hearing, setting out the grounds of the objection.
The Notice of Preliminary Objection filed by the Respondent, I note, was filed on 25/4/19, more than three days before the hearing of this appeal on 31/1/22.
Furthermore, the Respondent’s brief, encapsulating arguments on the Preliminary Objection, was filed on 25/4/19 and in response to which the Appellant filed a reply on 29/4/19, being over three days after the filing of the Notice of Preliminary Objection. There was thus clear compliance by the Respondent with Order 10 Rule 1 of the Court of Appeal Rules 2016, which were the Rules in force at the time this suit was filed.
Having dispensed with this objection, I proceed to the question of the competence of the appeal.
The Notice and Grounds of Appeal of the Appellant are contained at Pages 338-341 of the Record of Appeal, wherein two grounds of appeal were formulated, as follows:
“GROUND ONE: Error in Law
That the learned trial judge erred in law when he held that Order 25 Rule 4 of the High Court (Civil Procedure) Rules 2014 of Abia State did not make the claimant’s application for amendment of his statement of claim incompetent having not applied for extension of pre-trial session, after the session has been declared closed by the Court and suit adjourned for hearing.
PARTICULARS OF ERROR
1. On the 24th day of July, 2017, the trial Judge made an order declaring the pre-trial session in the Court below closed, consequent upon which the Court adjourned the matter for hearing.
2. After the close of pre-trial session and the matter adjourned for hearing, on the 20th day of October, 2017, the Claimant/Respondent brought an application for amendment of his statement of claim without first applying for an order extending the pre-trial session before bringing his application for amendment. This approach by the Claimant/Respondent is contrary to the sacred provisions of Order 25 Rule 4 of the High Court (Civil procedure) Rules 2014 of Abia State.
3. The learned trial Judge did not take cognizance of the strict and mandatory provision of Order 25 Rule 4 of the High Court (Civil Procedure) Rules 2014 of Abia State when he held that non-compliance of the said order did not make the Claimant/Respondent application for amendment incompetent.
GROUND TWO: Error in Law
That the learned trial Judge erred in law when he held that an application by the claimant for an amendment of his pleadings does not required his exhibiting, a list of any additional witness to be called together with written statement on oath and copies of documents to be relied upon contrary to the provisions of Order 24 Rule 3 of the High Court (Civil Procedure) Rules of Abia State 2014.
PARTICULARS OF ERROR
1. The Claimant/Respondent, without exhibiting his list of witnesses, and witness statement on oath, sought the leave of the trial Court to file alongside his amended statement of claim, the unexhibited list of witness and witness statement of oath, after the grant of application for leave.
2. The learned trial Judge granted the Claimant/Respondent leave to amend his statement of claim and also leave to file unexhibited list of witnesses and witness deposition on oath alongside the amended statement of claim.
3. The provisions of Order 24 Rule 3 of the High Court (Civil Procedure) Rules 2014 of Abia State, made provision to the effect that where any originating process and or a pleading is to be amended except for clerical errors, a list of any additional witness to be called together with his written statement on oath and a document to be relied upon consequent on such amendment shall be filed with the application.
4. The Claimant/Respondent did not file his application for amendment alongside his list of witnesses and witness deposition on oath rather he sought leave to do so after this application for amendment has been granted.
5. The error is that this application cannot be granted so long as the claimant did not exhibit the proposed list of witness and witness deposition on oath, this can only encourage litigation by ambush.”
On what constitutes grounds of law alone in an appeal, the Supreme Court set out the same explicitly in the case of CPL Industries Ltd. v Union Homes & Savings Ltd. (2021) 9 NWLR Part 1781 Page 201 at 233-234 Para F-C per Garba JSC, as follows:
“1. Where a ground of appeal shows or alleges a misapprehension or misapplication of the law to undisputed, admitted or provided facts in a case by a lower Court, it is ground of law. Maigoro v. Garba (1999) 10 NWLR (Pt. 624) 555, G.E.C. v. Akande (2010) 18 NWLR (Pt. 1225) 596.
2. Where the question in a ground of appeal is on legal interpretation, implication, import and purport of a document such as a deed, terms of contract, agreement, word or phrase and inference to be drawn therefrom, the ground is of law alone. See Ogbimi v. Niger Constr. Ltd. (2006) 9 NWLR (Pt. 986) 474, F.B.N. Plc v. Abraham (2008) 18 NWLR (Pt. 1118) 172.
3. Where a ground complains that an inference drawn by a lower Court is absolutely unsupported by the evidence, or that the decision is so manifestly unreasonable, then it is a ground that raises an issue of law. See U.B.A. Ltd. v. Stahlbau GMBH & Co. KG. (1989) 3 NWLR (Pt. 110) 374, Shanu v. Afribank Nig. Plc (2000) 13 NWLR (Pt. 684) 392.
4. A ground of appeal which raises the issue of jurisdiction is one of law. – G.E.C. v. Akande (supra).”
It has also been held that where the ground of appeal shows that the Court of trial or appellate Court misunderstood the law or misapplied the law to the proved or admitted facts, the same constitutes a ground of law. See Allanah v. Kpolokwu (2016) 6 NWLR Part 1507 Page 1 at 34 Para B-F per Sanusi JSC; Ehinlanwo v Oke (2008) 16 NWLR Part 1113 Page 357 at 389 Para C-E per Onnoghen, JSC (as he then was); Umanah (Jnr.) v NDIC (2016)14 NWLR Part 1533 Page 458 at 478-479 Para A-A per Rhodes-Vivour, JSC.
Where, however, the error of law is founded on disputed facts calling into question the correctness of the facts determined, it is a question of mixed law and fact. This is because it is a conclusion of law coupled with the exercise of discretion. See Fort Royal Homes Ltd. v EFCC (2021) 8 NWLR Part 1778 Page 312 at 323 Para F-H per Nweze JSC. It was held in the same case that where the ground of appeal is based on an allegation of error deduced from conclusion on undisputed facts, it is a ground of law.
In the instant case, the complaint of the Appellant in its Grounds of Appeal and attendant particulars, is not calling into question the lower Court’s exercise of discretion or the correctness of the facts determined but is a complaint against the misapplication of the law to the facts of the case and that the grant was contrary to the Rules in force. This, I hold, is clearly a ground of law, which by Section 241 (1) (b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), requires no leave of the Court. I accordingly dismiss the Preliminary Objection of the Respondent as lacking in merit.
SUBSTANTIVE APPEAL
ISSUES FOR DETERMINATION
Two issues for determination were formulated by the Appellant’s Counsel, namely:
“1. Whether the learned trial judge was right when he held that Order 25 Rule 4 of the High Court (Civil Procedure) Rules 2014 of Abia State did not make the Claimant/Respondent application for amendment of his statement of claim incompetent having not applied first, for extension of pre-trial session, after the session has been declared closed by the Court and the suit adjourned for hearing.
2. Whether the learned trial judge was right when he held that an application by the Claimant/Respondent for an amendment of his pleadings does not require his exhibiting, a list of any additional witness to be called together with written statement on oath and copies of documents to be relied upon contrary to the MANDATORY PROVISIONS of Order 24 Rules 3 of the High Court (Civil Procedure) Rules 2014 of Abia State.”
Two issues were similarly formulated by the Respondent’s Counsel, namely:
“1. Whether by the express provision of Order 24 Rule 1, Abia State High Court (Civil Procedure) Rules, 2014, there are not two optional stages of bringing an Application for amendment, namely:
(a) Amendment at anytime time (sic) before the close of pre-trial proceedings, and
(b) Amendment during trial before judgment and whether by the facts and circumstance of this case, the Respondent who applied to amend his pleadings during trial but before judgment needs to apply that the Court reverts to pre-trial session and to seek for extension of time to resume pre-trial session as a condition precedent for the grant of an application for amendment.
2. Whether the provision of Order 24 Rule 3, Abia State High Court (Civil Procedure) Rules, 2014 refers to additional witness to be called by a party following amendment of pleadings and whether a party who does not want to call such additional witness apart from the original witness already listed in the originating process, must mandatorily file list of additional witness and his written statement on oath without which the application for amendment is vitiated.
I shall simplify the issues raised by both Counsel, which issues I find rather unwieldy, rephrasing them as follow:
1. Whether by Order 24 Rule 4 of the Abia State High Court (Civil Procedure) Rules 2014, it was a requirement that an extension be sought of the pre-trial conference, before an application for amendment can be granted.
2. Whether by Order 24 Rule 3 of the said Rules, a party who does not want to call an additional witness apart from the original witness already listed in the originating process, must mandatorily file a list of additional witness and his written statement on oath without which the application for amendment is vitiated.
RESOLUTION
Issue No. 1
Whether by Order 24 Rule 4 of the Abia State High Court (Civil Procedure) Rules 2014, it is a requirement that an extension be sought of the pre-trial conference, before an application for amendment can be granted.
Appellant’s Submission
Appellant’s Counsel contends that, as pre-trial conference had concluded, the Respondent was compelled by the said rules to apply for an extension of pre-trial session, for him to make a valid application for an amendment. He submitted that Order 25 Rule 4 of the said rules stipulates that pre-trial proceedings shall be completed within three months of its commencement unless extended by the Judge upon an application by either party. Words used in a statute should be given their ordinary and plain meaning, he argued, citingA/G Bayelsa v A/G Rivers (2007) 8 WRN 1, Ehuwa v INEC (2007) All FWLR Part 357 Page 1415.
Respondent’s Submissions
Learned Counsel to the Respondent submitted, citing Egwa v Egwa (2007) 1 NWLR Part 1014 Page 71 that the stance of the Courts is that amendments to pleadings can be allowed before, during or after trial and even after judgment or on appeal. He submitted that the trial Court was right in holding that all that the Applicant is required to do in bringing an application for amendment during trial is to seek the leave of the trial Court. He pointed out that in the instant case, trial had not even commenced, with the consequence that amendments to the writ and statement of claim made before the case went to trial, cannot be impeached. He cited A/G Edo State v Jessica Trading Co (1999) 5 NWLR Part 604 Page 500 and Egwa v Egwa Supra.
RESOLUTION
From the records of the Court, at page 328-329, pre-trial was held by the lower Court on 24/7/2017, following which the case was adjourned for hearing. On the date fixed for hearing, the Respondent’s Counsel (Claimant herein) informed the Court of a Motion on Notice filed by them for the amendment of their Statement of Claim. The motion, in view of the Appellant’s opposition to the same, was adjourned by the Court for hearing. After adoption of the written addresses filed by Counsel, the Court adjourned for ruling on the same. The Court, delivering its ruling, observed that the application was made at a time that trial had not commenced. It rejected the contention of the Respondent that the application could not be entertained without the Respondent having sought an extension of the pre-trial conference and held:
“The answer to this objection is that it overlooked the provision of Order 24 Rule 1 of the same Rules which provides that a party may amend his originating process and/or pleadings with the leave of Court at any time before the close of pre-trial proceedings and not more than twice during the trial before judgment. The applicant herein filed this application for amendment after pre-trial conference. He has sought leave to do it in obedience to Order 24 Rule 1 thereof. The application is in order as the correct approach has been adopted.”
The resolution of the issue in question calls for the interpretation of Order 24 Rule 1 of the High Court of Abia State (Civil Procedure) Rules, 2014, which provides as follows:
“Order 24
AMENDMENT
1. A party may amend his Originating Process and/or pleading with leave of the Judge at any time before the close of pre-trial proceedings and not more than twice during the trial before Judgment.”
The cardinal principle in the interpretation of statutes, as rightly submitted by both Counsel, is that where the provision of a statute is clear and unambiguous, the duty of the Court is to simply interpret the clear provision by giving the plain wordings their ordinary meaning, without more. See Abacha v A/G Federation (2021) 10 NWLR Part 1783 Page 129 at 158 Para C-D per Kekere-Ekun JSC, Anya v Anya (2020) 9 NWLR Part 1729 Page 411 at 421 Para H per Abba Aji JSC; Registered Trustees of the Airline Operators of Nigeria v Nigerian Airspace Management Agency (2014) 8 NWLR Part 1408 Page 1 at 41 Para B-C; (2015) All FWLR Part 762 Page 1786 at 1812 Para B-D per Okoro JSC.
In the instant case, the words of the rules are clear, with no ambiguity. There is thus no requirement to seek internal aid within the body of the statute itself or external aid from statutes in pari materia in order to resolve the ambiguity.
Giving this rule its clear interpretation, amendment of originating processes or pleadings may be done with leave of the Court during pre-trial conference. Amendment of these processes can also be done after pretrial proceedings, also with leave of the Court, but not more than twice during the trial, before judgment.
Put in another way, by the express provision of Order 24 Rule 1 Supra, there are two stages in bringing an application for amendment, namely:
1. At anytime before the close of pretrial proceedings, and
2. During the trial but before judgment but not more than twice.
In both cases, leave of the Court must be sought.
In consequence, the application by the Respondent for amendment brought after the closure of pre-trial proceedings and before commencement of trial, was in order. There was therefore no requirement for the Respondent to have sought the extension of pre-trial proceedings to render the application for amendment competent. The 1st issue for determination is accordingly resolved against the Appellant.
The 2nd issue for determination, is:
“Whether by Order 24 Rule 3 of the said Rules, a party who does not want to call an additional witness apart from the original witness already listed in the originating process, must mandatorily file a list of additional witness and his written statement on oath without which the application for amendment is vitiated.”
Appellant’s Submissions
Appellant’s Counsel has submitted that the Respondent should, by Order 24 Rule 3 of the Rules, have mandatorily filed with the application 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 on consequent upon such amendment. This, he said, is to avoid “litigation by ambush”. This not having been done, the lower Court was in error to have granted the application for amendment.
Respondent’s Submissions
Learned Counsel to the Respondent submitted that the Respondent, having exhibited the proposed amendments and shown that no additional witnesses would be called, aside from that already listed in accompaniment to the original pleading, had complied with the said rules. He pointed out that leave was however sought and granted to file the Claimant’s witness statement on oath, in keeping with the proposed amendment. He also pointed out that the Respondent, upon the grant of the application thus proceeded to file his amended statement of claim together with the previous list of witness and witness statement on oath of the Respondent’s only witness, being the same witness and which process incorporated the amendments shown in the application.
Resolution
The motion for amendment of the Appellant is contained at Pages 175-176 of the Record and is as follows:
“1. An order of Court granting the Claimant leave to amend his Writ of Summons, Statement of Claim and Claimant’s reply to the Statement of Defence in the manner as shown underlined in the proposed Amended Writ of Summons, proposed Amended Statement of Claim and proposed Amended Claimant’s Reply to Statement of Defence which are herewith attached as Exhibits AA, BB and CC respectively.
2. An order that upon the grant of leave to amend as prayed above, that the Claimant be granted leave to file the amended processes alongside the Claimant’s list of witnesses, Witness Statement on Oath of the Claimant’s witnesses in keeping with the Claimant’s proposed Amendments as well as the Claimant’s copies of documents to be relied upon.”
Paragraphs b-d of the affidavit in support, are salient, and state as follows:
“(b) The amendment now sought in this Application does not add further cause of action to this suit but is rather intended to bring out the real issues in controversy amongst the parties for proper adjudication. The facts and reliefs sought in the proposed amendments attached herewith as Exhibits AA, BB and CC retain the same cause of action.
(c) Hearing has not yet commenced in this suit.
(d) The amendment sought does not and will not necessitate calling of additional evidence or changing of the character of the case.” Exhibited to the motion is the Proposed Amended Writ of Summons, Proposed Amended Statement of Claim, Proposed Amended Reply to the Statement of Defence and Written Address.
Following the grant of the application, the Respondent filed the Amended Writ, Amended Statement of Claim, the Claimant’s List of Witness and the Claimant’s List of Documents.
The lower Court, ruling on the objection of the Appellant’s Counsel, held at pages 336-337 of the Record, as follows:
“In answer to this point, M.U. Uzoma Esq., argued that it is only claimant’s witness statement that will be filed and not that of any additional witness. What I understand the claimant/applicant to be saying is that without prejudice to the way and manner relief 2 is couched, that he as a matter of fact will only be filing claimant’s witness statement to reflect the amendment sought and nothing more….. Two reliefs are couched ex facie the motion paper. The reliefs are for amendment of originating process and/or pleadings as well as leave to file list of witnesses(s) and witness statement… Apart from categorically praying for what he wants the Court to do for him, the claimant equally exhibited the processes sought to be amended. This approach is in substantial compliance with the practice and procedure of the Court. As stated earlier, the stage of proceedings at which amendment is sought is material. Hearing has not commenced. There is no allegation that the amendment sought is overreaching or capable of altering the essence of the original claim to introduce a new cause of action. The object of amendment is to enable the Court to decide the rights of the parties and not to punish them for mistakes they made in the conduct of this case. Once amendment sought is not fraudulent or intended to overreach then it can be granted/allowed. See ADEWUMI VS. A.G. EKITI STATE (2002) 2 NWLR (Part 751) 474 at 507. The claimant herein, merely enlarged the scope of relief sought and added new paragraphs to the pleadings. All that the defendant/respondent can do is to effect consequential amendment where necessary.
I find merit in the application for amendment. It is granted as follows:
(1) Leave is granted to the claimant/applicant to amend his writ of summons, statement of claim as well as claimant’s reply to statement of defence.
(2) Claimant is granted leave to file amended list of witness and witness statement on oath.”
Order 24 Rule 3 of the said Rules stipulate:
“Where any originating process and or a 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.”
As observed by the lower Court, no additional witness was called, thus not necessitating an additional witness statement. Admittedly, what should have been sought was leave to file an Amended Witness Statement on Oath in line with the amendment sought, rather than merely seeking to file the Witness Statement in keeping with the proposed amendments. However, as the Witness Statement filed consequent upon the grant of leave, by the uncontroverted submission of the Respondent, contained the amendments sought, there was clearly no prejudice to the Appellant.
It should also be borne in mind that trial had not yet started, and as directed by the lower Court, the Appellant was at liberty to effect consequential amendments to his pleadings or other processes, where it deemed necessary. Clearly therefore, there was no requirement by the Respondent to have filed an additional statement on oath, there being no additional witness sought to be called. I also resolve this issue against the Appellant.
The consequence of the foregoing is that this appeal is completely devoid of merit. I dismiss it and affirm the ruling of the lower Court. I award costs of N200,000 against the Appellant as I consider this appeal a time-wasting exercise, merely filed to delay the conclusion of this matter.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now the lead judgment just delivered by my bother, OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA.
I agree with his reasoning and conclusions.
I dismiss the appeal. I affirm the ruling of the Abia State High Court, Osisioma Judicial Division delivered on the 27th day of April, 2018 in Suit No. HOS/82/2014.
I abide by the consequential order made as to costs.
IBRAHIM WAKILI JAURO, J.C.A.: I have read the preview of the judgment delivered by my learned brother Adefope-Okojie, JCA. The reasoning and conclusions reached are sound and I do not have anything to add. I too find no merit in the appeal and I accordingly dismiss same. I abide by the orders made therein by my learned brother.
Appearances:
F. O. Okonkwo, Esq. For Appellant(s)
M. U. Uzoma, Esq. For Respondent(s)