UNION BANK OF NIGERIA PLC. v. ALHAJI SADIKU LAWAL
(2011)LCN/4921(CA)
In The Court of Appeal of Nigeria
On Monday, the 21st day of November, 2011
CA/L/518/06
RATIO
AMENDMENT: WHAT THE WORD AMENDMENT ENTAILS
The Oxford Advanced Dictionary 6th Edition, defines amendment as “a small change or improvement that is made to a law or a document, the process of changing a law or a document”. Thus, amendment means to improve, to change for the better by removing defects or faults and in relation to court proceedings, it is the correction of an error committed in any process, pleadings or proceedings at law or in equity and which is done either as of course, or by consent of the parties or upon notice to the court in which the proceedings is pending. See Adekeye v. Olugbade (1987) 3 N.W.L.R. (pt.60) 214; NNB Plc v. Denclag Ltd. (Supra). The Apex Court in Owodunmi v. Registered Trustees of CCC (Supra) held the word amendment to include “re-writing” the whole document and substituting the new for the old. (See pp.353-354, paras A-H). PER JOHN INYANG OKORO, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
UNION BANK OF NIGERIA PLC. – Appellant(s)
AND
ALHAJI SADIKU LAWAL – Respondent(s)
JOHN INYANG OKORO, J.C.A. (Delivering the Lead Ruling): By a motion on notice dated 29th January, 2010 and filed on 8th February, 2010, the Respondent/Applicant prayed for the following reliefs:
“1. LEAVE to Respondent/Applicant to Amend Respondent’s Brief of Argument dated and filed on 11th January, 2007 in the manner shown in the Amended Respondent’s Brief of Argument attached to this application.
2. AN ORDER deeming the Amended Respondent’s Brief of Argument dated 29th January, 2010, already filed as properly filed and served”.
The grounds upon which this application is anchored are given as:-
“1. To enable the Respondent/Applicant properly respond to all the issues of law and facts raised in the Appellate court.
2. To enable this court determine the appeal on the merit effectively and conclusively”.
In support of the application is a 12 paragraphs affidavit deposed to by one Michael Johnson, a Litigation Manager in Applicant counsel’s Chambers. Attached to the affidavit is one Exhibit marked “Exhibit GFC 1”.
Opposing this application, the Appellant/Respondent filed a counter affidavit of 10 paragraphs deposed to by Adetoyese Latilo, a Legal practitioner in the law firm of Paul Usoro & Co., the firm handling the case of the Appellant/Respondent. One exhibit marked “PUC 1” is annexed to the counter affidavit. The Applicant has filed a reply affidavit of 10 paragraphs.
On 4th October, 2011 when this application came up for hearing, the learned counsel for the Applicant, U. Adindu Esq., moved the application and submitted that courts should approach the issue of amendment liberally particularly when such an amendment will meet the justice of the case. He refers to the case of NDDG v. Precision Associations Ltd. (2006) 16 N.W.L.R. (pt.1006) 507 at 559-9 paras A-B. He submitted further that amendment includes rewriting the entire document citing the case of Owodunmi v. The Registered Trustees of Celestial Church of Christ & 3 Ors (2000) 10 N.W.L.R. (pt.675) 315 at 353-4 paras A-H; NNB PLC v. Denclag Ltd. (2005) 4 N.W.L.R. (pt.916) 549 at 601 paras C-E; Adewunmi v. Att. Gen. Ekiti State (2002) 2 N.W.L.R. (pt.751) 474 at 507. He urged the court to grant this application.
In her reply, the learned counsel for the Respondent, Ibiyemi Fashina (Miss) relying on all the paragraphs of the counter affidavit already mentioned, submitted that amendment is not made as a matter of course but on presentation of enough materials upon which the court can exercise that discretion, relying on the case of Bamaiyi v. Bamaiyi (2005) 15 N.W.L.R. (pt.948) 334 at 360 para F. That the Applicant has failed to refer to the areas or issues he intends to amend. Secondly, that the amendment sought by the Applicant is made to overreach the Respondent referring to paragraph 7(1) of the affidavit in support of the application wherein the Applicant states that it was after receiving Appellant’s Reply Brief that they discovered that they did not properly address their issues.
Learned counsel further submitted that only issues relating to grounds of appeal in the Notice of Appeal can be addressed in the brief. That since the Applicant by his admission in the supporting affidavit argued issues unrelated to the grounds of appeal, the said brief is incompetent and cannot be amended as you cannot put something on nothing. She cited and relied on these cases: Bob-Manuel v. Briggs (1995) 7 N.W.L.R. (pt.409) 537 at 556 paras G-D; Kode v. Yusuf (2001) 4 N.W.L.R. (pt.703) 392 at 415 para A. She urged the court to refuse this application.
In a brief rejoinder, the learned counsel for the Applicant submitted that the Appellant/Respondent will not be overreached because he has an opportunity to file a reply brief.
The Oxford Advanced Dictionary 6th Edition, defines amendment as “a small change or improvement that is made to a law or a document, the process of changing a law or a document”. Thus, amendment means to improve, to change for the better by removing defects or faults and in relation to court proceedings, it is the correction of an error committed in any process, pleadings or proceedings at law or in equity and which is done either as of course, or by consent of the parties or upon notice to the court in which the proceedings is pending. See Adekeye v. Olugbade (1987) 3 N.W.L.R. (pt.60) 214; NNB Plc v. Denclag Ltd. (Supra).
The Apex Court in Owodunmi v. Registered Trustees of CCC (Supra) held the word amendment to include “re-writing” the whole document and substituting the new for the old. (See pp.353-354, paras A-H).
It is now trite that the heydays of technicalities are over. The court is now more interested in doing substantial justice. Accordingly, courts ought to approach the question or issue of amendment liberally particularly where such amendment will meet the ends of justice. Thus, application for amendment can be brought at any stage of the proceedings before judgment, so long as it will not entail any injustice on the other party. See Okeowo v. Milgore (1979) 11 SC 138; Ojobaro v. Kuku (1986) 3 N.W.L.R. (pt.31) 697; Maersk Line v. Adide Investment Ltd – (2002) 11 N.W.L.R. (pt.778) 317; State v. Gwonto (1983) 1 SCNLR 142.
I need to point out quickly that an application for amendment should not be granted as a matter of course, and although a court has the discretion to grant permission for amendment, such discretion must be exercised judicially and judiciously. Thus where the intention for amendment is to clarify the issues in controversy between the parties or to remove any possible injustice in the case and is not to overreach the adverse party, an amendment should be granted. See Ogidi v. Egba (1999) 10 N.W.L.R. (Pt.621) 42.
In Lasisi Kode v. Alhaji Suara Yussuf (2001) 4 NWLR (pt.703) 392 at pp.412, the Apex Court held that amendment enables the slips, blunders, errors and inadvertence of counsel to be corrected in the interest of justice, ensuring always, that no injustice is occasioned to the other party. It was further held that amendment of any legal process affords a party whether Plaintiff or Defendant and even the Appellant or Respondent on appeal to correct an error in the legal document.
Where however, a court process is fundamentally defective ab initio, it is incompetent and does not exist at all in law. Consequently, such an incompetent process cannot be amended, as was noted by the learned counsel for the Appellant/Respondent, you cannot put something on nothing. See NNB Plc v. Denclag Ltd. (Supra).
In the instant application, the main reason for seeking for an amendment is as contained in paragraphs 7(iv) (vii) and 8 – 11 of the supporting affidavit and I shall hereunder set out these pertinent paragraphs:-
“7. That I was informed by Adindu Ugwuzor in Chambers on 11th November, 2009 at about 3pm and I verily believe him as follows: …
(iv) That on going through the Appellant’s Reply Brief served on 11th November, 2009 together with the Appellant’s Brief of Argument earlier filed, it was discovered that the Respondent’s Brief of Argument filed by the Respondent/Applicant on 11th January 2007 did not properly address the issues raised in the Appellant’s Brief of Argument.
(v) That the said Respondent’s Brief of Argument was also not related to any ground of appeal contained in the Appellant/Applicant’s Brief of Argument.
(vi) That this position was discovered after Olumide Akinwumi’s resignation and the service of the Appellant’s Reply Brief on Adindu Ugwuzor on 11th November, 2009.
(vii) That based on the foregoing, the initial Respondent’s Brief of Argument would not satisfy a proper Respondent’s Brief of Argument that will enable this court effectively and effectually determine this appeal on the merit.
8. That in consequence of the above, necessary amendments have been effected, now shown to me is the Respondent/Applicant’s proposed Respondent’s Amended Brief of Argument attached and marked as “Exhibit GFC 1″.
9. ….
10. That the amendment being sought to be effected in the Respondent’s Brief of Argument is to allow for an effective and effectual determination of this appeal.
11. That it is in the interest of justice to grant this application”.
The tragedy of the Respondent/Applicant in this appeal is that presently he has no brief properly so called because by his own admission in paragraph 7 (v) of the supporting affidavit reproduced above, the Respondent’s Brief of Argument sought to be amended is not related to any ground of appeal contained in the Appellant/Respondent’s notice of appeal or the issues in the Appellant’s brief. I think this is the kind of situation which the Supreme Court in Kode v. Yussuf (Supra) described as the “blunders, errors and inadvertence of counsel” which should not be allowed to rob a party of the opportunity to effectively ventilate his case before the court.
Where counsel sets out to, and produces a brief of argument on behalf of his client which is unrelated to the grounds of appeal and issues formulated there from, such a brief is worthless as it bears no relevance to the live issues in the Appeal. Where counsel discovers this error or blunders and he approaches the court for an amendment, I think the court ought to be favourably disposed to exercising its discretion in favour of granting an amendment in the interest of justice, provided the other party will not be prejudiced. This is clearly the mistake and/or inadvertence of counsel and I think it should not be visited on the applicant. See Akinpelu v. Adegbore (2008) 10 N.W.L.R. (pt.1096) 531 ; Akinyede v. The Appraiser (1978) 2 SC 39; Obiko v. Wema Bank (1989) 1 N.W.L.R. (pt.96) 157.
The learned counsel for the Appellant/Respondent had argued that this amendment is meant to overreach the Appellant. I do not think so. In fact there are no issues joined by the parties in the said brief which is said to have been argued on issues unconnected with the grounds of appeal in the Notice of Appeal. Moreso, the Appellant has an opportunity to file a reply brief after the amendment is granted. It should not be forgotten that the Apex Court has held that amendment includes “re-writing” and “substitution” of the document sought to be amended. See Owodunmi v. Registered Trustees of CCC (Supra).
It is my view that it will not serve the interest of justice to shut out the Respondent/Applicant in this matter. Should this application for amendment be refused, it means that he will have no brief to urge on the court. The Appellant/Respondent could be happy that the appeal would be heard on his brief alone. Courts are set up to do substantial justice and we shall at all time strife to uphold this purpose. Rules of court are made to be obeyed and all parties must conform to these Rules. However, in certain circumstances, as in this case where counsel inadvertently files a brief which is not related to the case of his client, the court has a duty to allow an amendment in order to properly and effectively determine on merit the dispute between the parties. This is what is called substantial justice and I love to do it over and over again.
Thus, in view of the fact that the Appellant/Respondent will not be prejudiced in this matter or overreached, except losing the opportunity to be heard on his brief alone, and also being satisfied that it is in the interest of justice to grant this application, I hold that this application is meritorious and is hereby granted by me as follows:-
1. Leave is hereby granted the Respondent/Applicant to amend his Respondent’s Brief of Argument dated and filed on 11th January, 2007 in the manner shown in the proposed amended Respondent’s Brief of Argument attached to the affidavit in support of this application as Exhibit GFC 1.
2. The clean copy of the Amended Respondent’s Brief of Argument dated and filed on 29th January 2010 is hereby deemed as properly filed and served today.
3. N10,000.00 costs against the Respondent/Applicant.
ADZIRA GANA MSHELIA, J.C.A.: I entirely agree with the reasons set out by my learned brother, OKORO J.C.A., in his ruling just read, a previous of which I have had.
I also grant the application in terms of the orders made in the lead Ruling, costs inclusive.
RITA NOSAKHARE PEMU, J.C.A.: I have had a preview of the Ruling just delivered by my brother John Inyang Okoro J.C.A and I agree with the reasoning and conclusions.
He has covered the field to a large extent in respect of applications to amend, and I have nothing to add, but to adopt his reasoning and conclusions.
I abide by the consequential order made, with N10,000.00 costs in favour of the Appellant/Respondent.
Appearances
I. U. Adindu Esq. for the Respondent/Applicant.For Appellant
AND
Ibiyemi Fashina (Miss) with Saidat Lawal (Miss) for the Appellant/Respondent.For Respondent
