Alh. Moh. Nuru V. Alh. Abdu Kore (1996)
LawGlobal-Hub Lead Judgment Report
OGUNTADE, J.C.A.
At the Jos High Court of Plateau State, the appellant as plaintiff brought a suit against the respondent as defendant for fraudulent misrepresentation. The appellant (hereinafter referred to as the plaintiff) claimed as follows in paragraph 26(a) and (b) of the further amended Statement of Claim.
“…the plaintiff’s claim against the defendant is in special and general damages for fraudulent misrepresentation and breach of trust, the entire amounts given to him were to UTC Nig. Ltd. on the Hire Purchase transaction while they were not paid, consequently the trailer PL 1434 JD was seized and probably sold this caused (sic) a lot of financial and economic loss to the plaintiff. The plaintiff also still suffers damages.
WHEREOF the plaintiff claims against the defendant the sum of five hundred thousand naira being special and general damages.
(a) PARTICULARS OF SPECIAL DAMAGES
Four hundred thousand naira only (N400,000.00) being current market value of a T3 Fiat trailer.
(b) GENERAL DAMAGES
One hundred thousand naira for loss of earnings as a result of the loss of the vehicle PL 1434 JD.
IN THE ALTERNATIVE: The plaintiff claims his new T3 Fiat vehicle Reg. PL 1434 JD in good condition and one hundred thousand naira only being damages for loss of earnings as a result of the seizure of the vehicle.”
The parties filed and exchanged pleadings. The suit was heard by Uloko, C. J. C. who gave his judgment on 9/11/94. In the penultimate paragraph of the judgment the learned chief judge made his award in these words:-
“the plaintiff has proved his claim against him (i.e. the defendant) and considering the current price of the vehicle I feel that N450,000.00 as damages is a fair compensation to him and I hereby award him N450,000.00 as damages against the defendant for the reasons given above.”
It is pertinent to say here that the hearing of the suit and final addresses by counsel ended on 21/4/94, and the suit was then adjourned to 23/4/94 for judgment. However between 21/4/94 and the date fixed for judgment, the plaintiff brought an application seeking the leave of court to amend his further amended Statement of Claim. The plaintiff sought to claim the sum of N600,000.00 as the current cost of the vehicle and N1,400,000.00 as general damages for loss of use. On 26/7/94, in a ruling, the lower court dismissed plaintiff’s application.
The plaintiff has now brought two appeals – one against the judgment of the lower court and the other against the refusal of his application for leave to amend the further amended statement of claim.
With respect to the judgment of the lower court, the grounds of appeal raised by the plaintiff read thus:
(i) The decision is against the weight of evidence.
(ii) The total sum awarded in favour of the plaintiff as damages is manifestly low having regard to facts and circumstances of the case.”
And against the ruling of 26/7/95, the grounds of appeal raised read thus:-
“(1) The learned trial Chief Judge erred in law when he held as follows:
“In the circumstances I am of the opinion that the amendments being sought have failed to me the postulates of the provisions of Order 26 rules I and 2 of the Rules of this Court 1987. The application therefore fails and is accordingly dismissed.”
and this error occasioned a miscarriage of justice.
Particulars of error
(a) By Order 26 rules 1 and 2 of the High Court (Civil Procedure) Rules of Plateau State, 1987 an amendment can be made at any stage of the proceedings.
(b) The plaintiff’s application to further amend his statement of claim was brought at a time when proceedings were yet to be concluded.
(c) Given the above circumstances the learned trial Chief Judge ought not to have held as stated above.
(2) The learned trial Chief Judge erred in law when he held as follows:
“The applicant has not outlined the issues in controversy between the parties and has not indicated in what manner the present application seeks to settle them.”
and this error occasioned a miscarriage of justice.
PARTICULARS OF ERROR
(a) The nature of the amendment sought was clearly spelt out in the affidavit supporting the motion paper.
(b) At the time of making this application the parties had already testified and the matter adjourned for judgment.
(c) In their final addresses, counsel indicated the issues in controversy between the parties.”
The issues for determination formulated by the appellant from the appeals are these:
“(a) Whether the amount awarded in favour of the appellant is manifestly low having regards to the facts of the case.
(b) Whether the learned trial Chief Judge was justified both in his reasoning and finding in refusing to grant the appellant leave to further amend his statement of claim.”
The respondent’s issues for determination are these:
“(a) Whether the exercise of the discretion of the trial Judge on the 26th of July, 1994 refusing the application to amend is proper.
(b) Whether the award of the sum of N450,000.00 was not justified.”
The two issues for determination will be taken together in this judgment but I propose first to give attention to the issue whether or not the lower court was right to have refused to grant the application by the plaintiff to further amend his statement of claim.
It is necessary however that the background facts to the case be considered since these have an important bearing on the issues for determination. The plaintiff and the defendant were friends. The plaintiff wanted to buy a T3 Fiat Trailer from UTC (Nig.) Ltd. Jos. He sought the assistance of the defendant. The defendant agreed to be guarantor for the plaintiff under hire purchase terms from the UTC. The plaintiff instructed the defendant to collect the Hire Purchase Agreement and sign as his plaintiff’s guarantor. The defendant told the plaintiff the hire purchase price of the trailer was N83,750.00 and that the plaintiff was required to deposit N20,500.00 and pay the balance by monthly instalments of N3,000.00 per month. The plaintiff paid the deposit and instalments to the defendant for transmission to UTC. It turned out however that the defendant was not paying the money over as at when due to UTC. Later, the UTC repossessed the vehicle from the plaintiff. The plaintiff then sued the defendant as earlier stated in this judgment. These, briefly, are the broad facts.
In his further amended statement of claim upon which the suit was heard, the plaintiff claimed N400,000.00 being current market value of a T3 fiat trailer and N100,000.00 for lost earnings. The further amended statement of claim was filed on 10/4/91. So, when the plaintiff claimed N400,000.00 being current market price of the trailer, he was claiming the price as at 10/4/91. On 12/2/92, when the plaintiff testified in support of his claim, he still put the current market price at N400,000.00.
On 29/9/93, the defendant testified. He was cross-examined by plaintiff’s counsel. In his evidence under cross-examination, the defendant said:-
“It is true to say that the value of the vehicle is now over N700,000.00”
By the above piece of evidence it would seem that the defendant himself acknowledged that the claim for N400,000.00 made by the plaintiff as the current market price of the trailer had become unrealistic. After counsel’s final addresses in the case on 21/4/96, the suit was adjourned to 23/6/94 for judgment. A day after the suit was adjourned for judgment, the plaintiff brought an application to further amend the statement of claim. The plaintiff deposed to an affidavit in support of the application. Paragraphs 5, 7 and 8 of the application read thus:
“6. That during discussions with O. B. James, Esq., my counsel he drew my attention to the fact that it was necessary for me to amend my statement of claim in order to ensure that the real question in issue is determined once for all.
- That all nature of the amendment to be made to my statement of claim has to do with a variation of the reliefs claimed.
- That the need to effect the above amendment is due to the fact that the value of the vehicle in issue had considerably increased, since the date I testified and I know that the defendant himself confirmed this when he was cross-examined by my counsel.”
The plaintiff by the application to amend wanted to claim:-
(a) N600.000.00 as the current market price of the trailer; and
(b) N1,400,000.00 as general damages for loss of use.
The plaintiff in the alternative also made a claim for a fiat motor vehicle and the sum of N500,000.00.
The lower court however refused to grant the application to amend. Was the lower court right to have refused the application? Order 26 rule 2 of the Plateau State High Court (Civil Procedure) Rules provides:
“2. The court or a Judge in chambers may at any stage of the proceedings allow either party to alter 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 questions in controversy between the parties.”
The power to grant an amendment of pleadings under the above rule of court is discretionary. Generally speaking, it is a discretion liberally dispensed in order to ensure that the real issues in controversy between the parties are settled in one and the same proceedings. Perhaps, the beacon light on the attitude of court in the amendment of pleadings is to be found in the statement of Bowen L. J. in Cropper v. Smith (1884) 26 Ch. D 700 at 710 where he said:
“It is a well established principle that the object of the court is to decide the right of the parties and not to punish them for the mistakes they made in the conduct of their cases by deciding otherwise than in accordance with their rights…I know of no mistake which if not fraudulent or intended to over reach, the court ought not to correct, if it can be done without injustice to the other party.”
As I observed earlier in this judgment, the parties had closed their case and the matter adjourned for judgment at the time the plaintiff sought the leave to amend his statement of claim. The fact that the plaintiff sought the amendment at a stage rather late cannot however be reason enough to justify the refusal of the amendment. In Lanfl v. Czarnikow Ltd. (1952) 2 All ER 823, parties had closed their case and counsel had addressed the court. Sellers, J. granted the amendment sought. He said at page 824:
“I should allow that amendment because it is simply setting out in the pleadings that which has emerge in the course of the case as an issue between parties.”
Similarly, in Ojah & Anor v. Oghoni & Ors. (1976) 1 NMLR 95, the Supreme Court held that even at judgment stage, it is permissible to grant an amendment. At page 99 the Supreme Court discussed the factors governing the exercise of the discretion to grant an amendment.
“It is well settled that an amendment of pleadings should be allowed unless:
(1) It will entail injustice to the respondent;
(2) the applicant is acting mala fide (see Lildesley v. Anper (1878) 10 Ch. D. 393 at 396); or
(3) by his blunder, the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise. (See Lildesley’s case supra); Ogunmehin v. Gubere (1964) 1 All NLR 176. 179 and Amadi v. Thomas Applin & Co Ltd (1972) 1 All NLR 409.”
However, where the amendment proposed, if granted, would not cure the defects in the proceedings, it would be refused: Hagnuju Abaji v. Raji Labiyi (1958) WRNLR 12. The court will not also grant an inconsistent or useless amendment: Oyenuga v. Provisional Council of University of Ife (1965) NMLR 9.
In Abojojoye v. U.B.A. (1986) 2 NWLR (Pt.20) 101 at 109 Wali, J.C.A. (as he then was) observed:
“In considering whether or not to grant an amendment to pleadings, the court must always be guided by the materiality of the amendment sought, the rules of audi alteram pm-tem and the genuiness of the amendment. But the court will not grant an amendment which would cause injustice to the other party- Taiwo Oduwaiye v. Ona Okesanya (1968) NMLR 430;Dominion Flour Mills Ltd. v. Abimbola George (1963) 1 All NLR 71.”In the instant case, I have no doubt that the application to amend was brought in good faith. The plaintiff had pleaded that the vehicle he purchased on hire from UTC through the defendant was re-possessed because the defendant refused to pay over to UTC the monthly instalmental payments which the plaintiff claimed to have given to the defendant for transmission to UTC. By his suit, the plaintiff wanted to be restored to his position before his vehicle was seized. Therefore, he claimed a sum of N400,000.00 being at that time the current market price of the vehicle. Between the time the plaintiff testified on 12/2/92 and when the defendant testified on 29/9/93, the market price of the vehicle had gone up to N700,000.00. The defendant himself testified to that effect. The position was that if the plaintiff was held to the market price he had stated when he testified, he would not have got justice as he could not purchase the vehicle which was now N700,000.00 with the N400,000.00 he had claimed. I do not also see how the amendment could have caused injustice to the defendant who himself admitted that the price of vehicle had gone up to N700,000.00. This was therefore not an application made in bad faith or with the intention to overreach. Rather, it was one intended to settle all the issues in controversy between the parties:
See: England v. Palmer (1955) 14 WACA 659 at 661.
In the ruling appealed against, the lower court stated the nature of the amendment proposed thus:
“In virtue of this application they are claiming the following reliefs:
(a) N600,000.00 as special damages
(b) N1,400.000.00 as general damages;
They are making an alternative claim for the fiat motor vehicle plus the sum of N500,000.00. They are making yet another alternative claim which is for:
(a) the motor vehicle registered as PL 7725 JC the property of the defendant; plus
(b) the sum of N1,400.000.00 as general damages.”
“In opposing the application, the respondent complained of
(a) bad faith by the applicant in making this application.
(b) attempts by the applicant to alter the nature of the reliefs being claimed by him.
(c) the surprises that they are likely to encounter if the application should succeed;
(d) the delay that occasion in re-opening a case which was filed in 1988 about six years ago.
The learned counsel for the applicant has no ready answers to these complaints. In the circumstances, I am of the opinion that the amendments being sought have failed to meet the postulates of the provisions of Order 26 rules 1 and 2 of the Rules of this court, 1987. The application therefore fails and is accordingly dismissed.”
With respect to the learned Chief Judge, it seems to me that it is manifest that the applicant before him had acted in good faith and absolute candour which was borne out by the evidence of the defendant himself. Further, I do not see that the plaintiff was by his application altering the nature of the reliefs he had claimed. Rather, what the plaintiff had sought to do was to alter the quantum of his claim. The amendment if granted could not constitute a surprise to the defendant who himself knew about the increase in the price of the vehicle and testified to that effect. As for the fact that the amendment would cause a delay, I do not see that merely granting the amendment sought would cause further delay since there was already the necessary evidence before the court. I think with respect that the lower court was in error to have refused the application.
I hereby make an order granting the plaintiff leave to amend his further amended statement of claim as indicated in this ruling.
The first issue for determination deals with the amount awarded by the lower court as damages. In the judgment of the lower court it said:
“On the proof of damages, the current price of the vehicle in question is not in dispute. The plaintiff said that at the time he gave evidence, it would cost N600,000.00. The defendant said it would cost N700,000.00. The plaintiff is claiming the sum of N400,000.00 plus N100,000.00 as general damages from the defendant. N400.000.00 falls short of the current price of the vehicle” (italics mine).
There is a little mistake in the passage reproduced above. At that time the plaintiff gave evidence, he actually said the vehicle would cost N400,000.00 and not N600,000.00 as stated in the above passage. The court appreciated however that the N400,000.00 claimed ‘falls short of the current price.’ It may well be that the lower court felt constrained in awarding more than N400,000.00 because that was the amount claimed on the further amended statement of claim upon which the case was tried. I have amended the claim to read N600,000.00. In the penultimate paragraph of the judgment the lower court remarked that “the plaintiff has proved his claim.” It seems to me that I ought in the interest of justice to award to the plaintiff the full amount of his claim under special damages. It will be injustice to award to plaintiff a sum of money such as would not put him in a position to replace the vehicle seized from him. I bear in mind that the defendant had been magnanimous enough to concede that the vehicle would as at 29/9/93 cost N700,000.00.
“Section 16 of the Court of Appeal Act provides:
“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall be full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in the case of an appeal from the court below in that court’s appellant jurisdiction, order the case to be re-heard by a court of competent jurisdiction.”
In the exercise of the power under the above law, I am able to make an award which the lower court ought to have made had it been able to grant the application to amend the statement of claim.
I award in favour of the plaintiff in substitution for the sum of N45,000.00 awarded as damages the sum of N600,000.00, I award to the plaintiff N1,000.00 as costs.
Other Citations: (1996)LCN/0228(CA)
