M.T. Mamman V. A.A. Salaudeen (1998)
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ABDULLAHI, J.C.A
The applicant is the respondent in the substantive appeal. He filed this application on Notice seeking for the following orders:-
- “AN ORDER for leave to amend the plaintiff’s (now Respondent’s/Applicant’s in this court) statement of claim contained in pages 3 to 7 of the Record of Appeal to this court by adding new paragraphs 3(a) and 5(a) as set out in the Schedule below and contained in Exhibit A attached hereto and re-numbering paragraph 3 and 5 of the statement of claim to read paragraphs 3 and 3(a), 5 and 5(a) respectively.
3(a) That the defendant published the words in paragraph 3 above to a typist in town and the auditors of Trade Bank Plc also saw it.
5(a) That the defendant told live (5) people who were in attendance in the above mentioned meeting among whom was the defendant’s brother, Alhaji Abdul’aziz Salaudeen that the plaintiff took bribe of over N600.000.00 (Six hundred thousand naira).
- AN ORDER deeming the proposed amended statement of claim hereto annexed as Exhibit A as properly filed and served on payment of appropriate fees.
Grounds upon which Amendments are sought:
(a) To bring the plaintiff’s (now respondent’s/applicant’s) statement of claim in line with evidence already led at the trial and decision given by the court.
(b) To prevent occurrence of substantial injustice.
(c) To determine the real question(s) in controversy between the parties.
- AN ORDER extending the time within which the respondent/applicant shall file his respondent’s brief.
- AN ORDER deeming as properly filed and served the Respondent’s brief hereto annexed and marked Exhibit B on payment of appropriate fees.
- AND FOR such further order or orders as this Honourable Court may deem fit to make in the circumstances.
FURTHER TAKE NOTICE that the respondent/applicant shall rely on the affidavit sworn to by Samuel Nelson at the hearing of this motion.”
DATED AT KADUNA THIS 14TH DAY OF APRIL, 1997.
The application is supported with an affidavit. A copy of the proposed amended statement of claim is attached and marked Exhibit ‘A’. There is also the respondent’s brief of argument attached and marked as Exhibit ‘B’.
The respondent in this application, who is the appellant in substantive appeal opposed the application and filed a counter-affidavit on 12/6/97 as well as a further and better counter affidavit on 13/10/97.
The case was fully fought before the Kaduna State High Court. Pleadings were filed and exchanged and the matter went into full trial. At the end of the trial, the High Court found in favour of the plaintiff, now respondent, but applicant in this application. An award in the sum of 750,000.00 was made to him as damages for libel and N2000.00 was awarded as costs.
The defendant at the High Court, appealed to this court against the decision of the High Court. The appellant is now respondent in this application.
It is the contention of the learned counsel for applicant that the application for amendment ought to be granted, because the amendment sought is in line with the evidence already adduced and a refusal will result in an injustice to the applicant, and will amount to a failure to resolve the issues between the parties in the substantive appeal. Learned counsel added that no new evidence would be required.
Learned counsel maintained that what he is asking for is not a new thing, that both the Supreme Court and this court had in many cases obliged applications of this nature. He cited the cases of Adelaja v. Alade (1994) 6 SCNJ (pt.11) 160 (1994) 7 NWLR (Pt. 358) 537; Laguro v. Toku (1992) 2 SCNJ (Pt.11) 201; (1992) 2 NWLR (Pt. 223) 278 Jessica Trading Co. Ltd V. Bendel Insurance Co. Ltd (1993) 1 SCNJ 240. (1993) 1 NWLR (Pt. 271) 538.
Learned counsel conceded however that evidence given out of pleadings goes to no issue and that he did not cross appeal against the judgment.
In opposing the application, the learned counsel for respondent contended that the applicant is trying to overreach by riling the application at this point in time. Learned counsel contended that the applicant had all the opportunity in the world to amend his pleadings at the trial, which lasted for over two years and infact amended his pleadings in the course of the trial. That the attempt now being made to amend the pleadings was specifically an attempt to short circuit the appellant’s appeal, because the application was brought after the appellant had already filed his notice and grounds of appeal as well as his brief or argument. That the amendment now sought touches directly on some of the grounds or appeal filed by the appellant on which arguments were fully developed and offered in the appellant’s brief of argument.
Therefore granting the application will prejudice the appeal of the appellant. That since the power to grant this type of application is discretionary; the court should exercise it judicially and judiciously. In this case, it will not be judicious to exercise it in favour of the applicant, because the appellant will be greatly prejudiced. He urged the court to refuse the application.
It is true that applications for amendments of this nature are not strange to both the Supreme Court and this court, but each case must be considered on its own merit. For example in the case of Laguro v. Taka (1992) 2 NWLR (Pt.223) 278, the Supreme Court set out the principles guiding amendment of pleadings generally as follows:
- In the exercise of its power to amend a pleading, a court is guided by:
(a) Consideration of the justice of the case and the rights of the parties before it;
(b) The need to determine the real question or questions in controversy, between the parties;
(c) The duty of a judge to see that everything is done to facilitate the hearing of any action pending before him and whenever it is possible to cure and correct an honest or unintentional blunder or mistake in the circumstances of the ease and the amendment will help to expedite the hearing of the action without injustice to the other party;
(d) If the court is an appellate court, the need to amend the record of the trial court so as to comply with the facts before the trial court and decision given by it in order to prevent the occurance of substantial injustice;
(e) Amendments are more easily granted whenever the grant does not necessitate the calling of additional evidence or the changing of the character of the case, and in that aspect no prejudice or injustice can be said to result from the amendment.
AKPATA JSC gave further classifications at pages 294 – 295, where he said:-
“Justice demands that in order to determine the real matter in controversy pleadings may be amended at any stage of the proceedings, even in the Court of Appeal or this court [Supreme Court] to bring them in line with the evidence already adduced; provided the amendment is not intended to over-reach and the other party is not taken by surprise and the claim or defence of the said other party would not have been different had the amendment been averred when the pleadings were first filed.”Now, in this application, the applicant had reproduced the proposed amended pleadings in the document he attached and referred to as Exhibit ‘A’.
They are paragraphs 3 and 5 in which new paragraphs 3a and 5(a) are introduced.
They read as follows:-
- On or about the 28th of January, 1993 and in a letter dated the 28th of January, 1993, addressed to the Branch Manager, Tracie Bank Plc, Kaduna and signed by the defendant which letter is hereby pleaded, the defendant falsely and maliciously wrote, printed and published or caused to be written, printed and published in the said letter and concerning the plaintiff the following words:
“Re Application for Temporary overdraft Facility … I hereby affirm that the conclusion we agreed on at the meeting under your reference letter written to us, is still hold. And we still state that the inability to regularise the account in question is as a result of compulsory bribe taken by Mallam M.T. Mamman, the predecessor Manager which is above N600,000.00 and as mention in the meeting, we attribute this predicament to his contribution i.e. compulsory bribe taken…”
We request your urgent intervention on this issue in order to bail us out if we may recall the second meeting held with Mallam M.T. Mamman was with the motive of agreement on how to settle the debt between us (i.e. M.T. Mamman/A.A. Salaudeen) but since nothing come out of this and your letter of today 28th January, 1993 we still maintained that the payment of the debt should be a joint effort.
3(a) That the defendant published the words in paragraph 3 above to a typist in town and the auditors of Trude Bank Plc also saw it.
- On or about the 27th of January, 1993 and in the minutes of a meeting held on the same date which minutes is hereby pleaded, the defendant falsely and maliciously caused to be written, printed and published the following words concerning the plaintiff:
“Visitation report to Alh. A.A. Salaudeen shop”
“…The main issue deliberated on was how to regularise the account in question by the family. They however maintained that if they are to pay the debt off, it has to be between the Area Manager, the predecessor of the present Branch Manager in person of Mr. M.T. Mamman. We latter asked them for the reason why it should be so and we were told as claimed by the customer that his inability to regularise the account is as result of the compulsory bribe taken by the then Branch Manager which was above N1 million in less than a year…”
5(a) That the defendant told five (5) people who were in attendance in the above mentioned meeting among whom was the defendant’s brother, Alhaji Abdul’aziz Salaudeen that the plaintiff took bribe of over N600,000.00 (six hundred thousand Naira).”
On the other hand, the appellant contended that the proposed amendments are deliberately introduced to torpedo his grounds of appeal, which had already, been argued in his appellant’s brief of argument. These grounds are grounds 1 and 2.
With their particulars they read as follows:-
- The learned trial Judge erred in law in holding that qualified privilege does not avail the appellant in this case because the findings of fact which he utilised in arriving at the conclusion, viz., that the publication was made to another person other than the employer of the respondent, was not pleaded and evidence in proof of that fact was therefore wrongly admitted and the facts which are pleaded in the statement of defence are adequate to establish the defence of qualified privilege and there is evidence of them offered at the trial and they remain undisputed.
Particulars:
(a) The respondent in his statement of claim alleged publication of the offending words to the employer of the respondent. It did not allege publication to any other person but the Judge relied on and found that publication was made to a typist, and other persons including the brother of the appellant, issues which are not pleaded, and it was this that enabled him to arrive at the conclusion that qualified privilege did not avail the appellant as a defence.
(b) The respondent admitted that the appellant was customer of his employer to whom the offending words were written.
The learned trial Judge erred in law in holding as follows:
“That there was publication to five people among which the defendant’s brother (Abdul’aziz) was and the auditor, of Trade Bank. It is an admitted fact that Exhibit4 was published to a typist in town.”
(a) those facts were not pleaded and therefore did not arise for consideration and
(b) a judge is duty-bound not to decide issues of fact other than those raised in pleadings.
One does not need a search light to see that the proposed amendments in paragraphs 3(a) and 5(a) directly related to grounds 1 and 2 of the grounds of appeal.
In the circumstances, I find substance in the complaint of the learned counsel for appellant that the amendment if allowed would clearly allow the applicant to over-reach and would clearly torpedo the two grounds of appeal.
I must express a word of caution here. I am not saying at the moment that the 2 grounds of appeal will succeed. I am not also saying that they will not succeed, since I am not considering the merit of the appeal.
Confining myself to the merit of the application, I have good reason to believe that if the application is granted, some injustice will be occasioned on the appellant by short circuiting his two grounds of appeal, especially, that he had already made submissions on the grounds in his brief of argument. In the circumstances it will be injudicious to grant the application and it is accordingly refused.
The applicant will have to take steps to readjust the arguments in the proposed respondent’s brief by taking out the arguments already advanced relating to the proposed amendments in the pleadings.
The appellant/respondent is entitled to costs in this application, which I assess at N 1500.00 in his favour.
Other Citations: (1998)LCN/0382(CA)
