C. Onyemelukwue V. West African Chemical Company Limited & Anor (1994)
LawGlobal-Hub Lead Judgment Report
TOBI, J.C.A.
TOBI, J.C.A. (Delivering the Leading Judgment): The appellant, as plaintiff, claimed from the respondents jointly the following reliefs:-
“1. The sum of N2.300500 being loan granted to the 1st defendant/company in December 1987 and guaranteed by the 2nd defendant to be repaid within 60 days.
- Interest at 21% on the said sum from January 1989 till the date of judgment and 6% from the date of judgment till the date of settlement.
- Forfeiture of the property situate, lying and being at 215 Idowu Martins Street. Victoria Island to the plaintiff.”
The respondents jointly entered appearance on 7th December. 1989. They filed their statement of defence that day. The appellant brought a summons pursuant to order 10 rules 1 and 2 of the High Court (Civil Procedure) Rules. 1972 for an order entering final judgment in his favour against the respondents jointly.
The learned trial Judge did not see his way clear in granting the prayer sought in the summons. He refused it. In the last sentence of his 11th April, 1990 Ruling,
the learned trial Judge said:-
“As I have found earlier that the plaintiff failed to discharge the burden placed on him in the first part of Order 10 rule 1(a), this application fails and it is dismissed with costs fixed at N 100 to the defendants jointly and severally.”
Dissatisfied with the Ruling, the appellant filed an appeal. Briefs of arguments were filed and duly exchanged. Appellant formulated the following four issues for determination:-
“(i) What was the app ication before the court?
(i i) Was there a verified cause of action before the court’?
(iii) Were there evidence of the loan before the court and the actual amount owing?
(iv) Was there any defence to the loans of $200.000 and $15,000 claimed before the court?”
The Court also held that the defence put up by the respondents did not amount to good defence. Also dissatisfied with this, they filed a cross-appeal and formulated the following issues for determination in both the main appeal and the cross appeal:-
“2.1. Whether the court was in error of law in interpreting or construing Order 10 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 1972, in holding that the facts deposed to by the deponent in paragraphs 3 and 8 of the Affidavit did not constitute proof of plaintiff’s cause of action to satisfy the requirements of Order10?
2.2(a) Was the court in order in considering the effect of the defence put lip by respondents to hold that the same did not amount to good defence without at the same time considering the other leg of disclosure of sufficient facts to entitle the defendants to defend the action generally?
2.2(b) . Was the Judge not being premptive and unnecessarily hasty in holding that since the defendants/respondents did not give particulars of special defences raised in their statement of defence i.e. undue influence, pressure, mistake etc., when the case itself had not been heard and concluded?
2.2(c) Was the learned trial Judge not contradicting himself by holding on one hand that evidence was needed to ascertain the rate of conversion of the U.S. Dollars to Naira and at the same time holding that defendants/respondents did not have good defence when evidence had not actually been heard?
2.2(d) Did the conclusion of the learned trial Judge that defendant’s plea that the transaction was a joint venture that failed got blown up by the 2nd defendant’s giving of undertaking for repayment and pledge of property as security?”
I should mention that while paragraph 2.1 is in respect of the main appeal, paragraph 2.2. is in respect of the cross-appeal.
Learned Senior Advocate for the appellant, Chief Debo Akande said that at the time of the Ruling, the writ of summons, the statements of claim and defence were before the court, in addition to the affidavit in support of the application to enter judgment. He referred to paragraphs 2, 7,8,9 and 10 the statement of claim and paragraphs 3, 5 and 7 of the affidavit in support and submitted that the learned trial Judge held too technically to the wordings of the first part of Order 10 Rule I and failed to follow the settled position of the Supreme Court in doing substantial justice. Learned Senior Advocate submitted that paragraphs 3, 4 and 5 of the affidavit in support definitely and clearly satisfy the requirements of the first part of Order 10 Rule 1 and that the learned trial Judge was clearly in error in this regard. Referring to paragraphs 7 and 10 of the statement of claim and paragraph 5 of the affidavit, learned counsel submitted that the trial Judge was in error in holding that “nowhere is it stated that the defendants refused or neglected to pay the loan granted them by the plaintiff’.
To learned Senior Advocate, the summons, the statement of claim and the affidavit in support of the application for judgment show a cause of action and a verification of same, and the attitude of the learned trial Judge was rigid and amounted to defeating the course of justice. He relied on United Australia Ltd v. Barclays Bank Ltd. ( 1941 ) A.C. 1 at 29 and V.T.C. v. Pamotei (1989)2 NWLR (Pt. 103) 244 at 303 – 304. He further contended that the respondents did not raise the issue of cause of action not being verified. Even if the Judge, on his own, felt that part I of the Order 10 Rule I was not satisfied, he should have called for address by both counsel.
It was also the submission of Learned Senior Advocate that the finding of the learned trial Judge that the various defences of the respondents “do not constitute any good defence to the plaintiff’s claim for payment over the loan granted them” negate the whole ruling of the court because (a) the finding shows that the grant of the loads was established; (b) the loans have not been repaid; (c) there would have been no defence if the respondents’ case is that there is no cause of action against them; (d) the court accepted that the 2nd respondent confirmed the giving of an undertaking for repayment in paragraph 3 of their defence; (e) the Ruling held that the contents of the defendants’ letter (Exhibit C) are an admission that the two sums were loans made to the 1st respondent.
Learned Senior Advocate also submitted that the actual amount in U.S. dollars claimed and the total current naira equivalent as at the time of filling, more clearly stated and a division of the quoted naira amount of N2.300,500.00 by the U.S. dollars of $215,000.00 will readily show the rate. To learned Senior Advocate, the learned trial Judge was also over technical and refused to recognise that the naira equivalent was quite clear to the respondents who merely wanted the equivalent of N4.5 which was the rate at the time of lending to be used. It is clear that in order to refuse the application, the learned trial Judge made out the case not made or argued by the defence for them. Learned Counsel for the respondents, Chief C.I. Okoye agreed with the learned trial Judge that Order 10 of the High Court of Lagos State (Civil Procedure) Rules 1972 is a special and peculiar provision which must be strictly followed by plaintiff to obtain judgment not on the grounds of default on the part of defendant
but because the plaintiff had adopted a particular procedure to bring the action as prescribed in Order 10 Rule 4 of the Rules. This procedure is obtainable only in the High Court of Lagos State Rules. He referred to Nwadialo on Civil Procedure in Nigeria. page 181 and the cases of Lagos v. Grumwaldt (1910) 1 K.B 41; Les Fils Dreyfus v. Clarke (1958) 1 All E.R. 459; Roberts v. Plant (1895) 1 Q.B.D. 597; Sodipo v. Lemminkainen (1986) 1 NWLR (Pt.15) 220; Chingwin v. Russel (1910) 27 T.L.R. 21 and Sheha Gold Minning Co. v. Truhshawe (1892) 1 Q.B. 674.
Learned counsel submitted that the learned trial Judge was clearly in error by holding that the respondents’ various defences did not amount to good defence and therefore the appellant’s application could have succeeded on that fact but for the failure to meet the requirements of the first segment of Order 10. In the second segment of Order 10, the requirements for allowing a defendant to defend are two fold: namely, either (i) that the defendant’s statement of defence constitute good defence on the merits (ii) that same discloses sufficient facts to entitle the defendant to defend the action generally, learned counsel argued.
It was the submission of learned counsel that even if the defence as pleaded did not. in the opinion of the learned trial Judge, amount to good defence on the merits, these defences pleaded or raised triable issues which must of necessity be determined only by evidence. To learned counsel, the defence constitute substantial disputes of facts and law. For application under Order 10 to be successfully made, it can only be properly brought in cases in which there are no substantial disputes as to the facts or law; counsel argued. He referred to Dummer v. Brown (1953) 1 Q.B. 710. Since from the facts of the case, there are substantial disputes for the court to determine one way or the another, same can only be by evidence, learned counsel submitted.
He also submitted that the fact of omission from the pleadings of particulars of special defences when the case has not yet been heard and or decided finally is premature and premptive and should not by that reason be held to constitute no proper defence under Order 10. Counsel referred to Oguntokun v. Rufai (1945) 11 WACA 55 at 56.
Learned Senior Advocate, in reply to the cross appeal, submitted that defences put up need not reach the trial stage before the court could see whether they amounted to a defence. It is therefore clear that on the authority of UTC v. Pamotie (1989) 2 NWLR (Pt. 103) 244, that on a due consideration of the defences, they raised no triable issues, and they were in fact no defences and pressure was not based solely on lack of particulars, but in addition by the cross appellants’ confirmation that they gave undertaking for repayment and pledged property as a security, learned Senior Advocate argued. He submitted that the consideration required by Order 10 Rule 1 as pronounced by UTC. v. Pamotei (supra) is consideration of the verified facts of an affidavit or the defence raised at the time of argument of motion for judgment and not afterwards. To learned Senior Advocate, the contents of the judgment of Oguntokun v. Rufia 11 (1945) WACA 55 at 56 are against the cross appellants. It is therefore the error of the trial Judge which having rejected the defences to go on, and on an undue technicality, to hold that the first arm of Order 10 Rule 1 was not satisfied, learned Senior Advocate contended. He urged the court to allow the appeal.
While judgment was reserved, learned Senior Advocate filed a motion for the following order:
“Amending the amended writ of summons, statement of claim both dated 15th November, 1989 and Summons for judgment dated 8th December, 1989 brought pursuant to Order 10 of the High Court civil Procedure Rules 1972 by deleting the sum of N2.300.000.00 and substituting it with $215,000 (Two hundred and fifteen thousand dollars) or its prevailing naira equivalent at the time of judgment.”
The motion is supported by 13paragraph affidavit and an exhibit. Learned Counsel for the respondents filed a preliminary objection.
In moving the motion, learned Senior Advocate claimed that the amount received was not disputed as found by the learned trial Judge. What is disputed is the alleged loan. The respondents claimed it was meant for joint ventures. Since the dollars remain constant, the equivalent in naira will not detrimentally prejudice the respondents, learned Senior Advocate submitted. Relying on Metal Construction 1 Co. Ltd. v. Milglore and Another (1979) 12NSCC 145 at 150-151. (1979) 6-7 S.C. 163 learned Senior Advocate submitted that this court has power to effect the amendment sought even at this stage. He also submitted that section 16 of the Court of Appeal Act, 1976 gives the court wide powers to accommodate the amendment. Relying on Laguro v. Toku (1992) 2 NWLR (pt.223) 278 at 280 and Okafor v. Bendel Newspapers Corporation (1991) 7 NWLR (Pt.206) 651 at 565.
learned Senior Advocate submitted that the prayer is to cure an error so as to bring the full scale’ of justice into play. Learned Senior Advocate also relied on Onagoruwa v. I.G.P. (1991) 5 NWLR (Pt. 193) 598 at 638 and Adegoke Motors v. Adesanya (1989) 3 NWLR (Pt. 109) 250 at 292 and 296. Learned Senior Advocate also sent additional authority on the matter. It is the case of Dulles v. Vider (1951) CH.D 842 at 847. He urged the court to grant the motion.
Learned Counsel for the respondents. Chief Okoye, in his preliminary objection submitted that the appellant has no right of appeal. He relied on section 220(2) of the 1979 Constitution. Since the lower court granted the respondents the right to defend the action unconditionally, the appellant has no right of appeal, counsel argued. It was the submission of learned counsel that once a court has no jurisdiction, a party cannot be said to have waived such right. After all, the issue of jurisdiction can be raised at any stage of the proceedings. He relied on Management Enterprises Ltd v. Otusanya (1987) 2 NWLR (pt.55) 179 at 180 Attacking the merits of the motion for amendment, learned counsel called the attention of the court to Dulkpan v. Orovuyovbe and Another (1967) 1 All 134 at 145. He urged the court to remit the case to the High Court for continuation.
Learned Senior Advocate for the appellant, in his reply to the preliminary objection, said that section 220( 2) (a) of the 1979 Constitution refers to unconditional right to defend an action. The subsection presuppose a defendant asking for leave to defend and he is then granted an unconditional leave to defend, learned Senior Advocate submitted. It was the further submission of learned Senior Advocate that since the learned trial Judge had considered the defence and found that it amounted to no defence, the Court of Appeal, in doing justice: must use those findings to bring litigation to an end. He urged the court to grant the motion and also allow the appeal.
I think I should take the preliminary objection first. It concentrates on section 220(2) (a) of the 1979 Constitution. By the subsection, there is no right of appeal from a decision of any High Court granting an unconditional leave to defend an action. While learned counsel for the respondents said that the learned trial Judge granted the respondents an unconditional right to defend the action, learned Senior
Advocate said that there was no such order. To him, Rule 6 of Order 10 is referable to Rule 5 specially, and not Rule 10, which allows full judgment where there is no defence.
I have carefully examined the case file and I do not see where the learned trial Judge granted the respondents an unconditional leave to defend the action. Learned Counsel did not help the situation as he could not refer the court to the particular proceedings in vindication of his contention. Of course, he cannot because beyond the Ruling of the learned trial Judge, there is no Record of Proceedings in the case file. Accordingly, that leg of objection fails. That takes me to the merits of the motion. Generally, an amendment of pleadings for the purpose of determining the real question in controversy between the parties ought to be allowed at any stage of the proceedings unless such amendment will entail injustice or surprise or embarrassment to the other party or the applicant is acting mala fide or by his blunder the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise. In other words, the discretion ought to be exercised so as to do what justice and fair play may require in the particular case. See Adetutu v. Aderohunmu (1984) 1 SCNLR 515; Oguntimeyin v. Gubere and Another (1964) 1 All NLR 176; Amadi v. Thomas Aplin Ltd. (1972) 1 All NLR (pt.1) 409; Chief Ojah and Others v. Chief Ogboni and Others (1976) 4 SC.69 and Chief Okafor v. Ikeanyi and Others (1979) 3 and 4 SC 99.
Although applications for amendment of court processes could be made at any time of the proceedings, as a general rule, courts of law should be reluctant to grant such applications, particularly at the late stage of the proceedings. See Okafor v. A.C.B. Ltd (1975) 5 SC 89 Unless there is very good and strong justification for so doing. a court of law should be reluctant to grant amendments of the pleadings after the close of the case and before judgment. Such an amendment may be allowed where the matter involved has been raised in the course of the trial and counsel has addressed the court on it, since it will be merely incorporating in the pleadings that which has emerged in the course of the case as an issue between the parties. See Taiwo v. Akinwunmi (1975) 4 SC 143. An appellate court will not grant an amendment if it will alter the character of the case as considered by the court below. See Osinupebi v. Saibu (1982) 7 SC 104. .
In the motion, three court processes are sought to be amended at this stage of the proceedings. They are the amended writ of summons the statement of claim and the summons for judgment. Although it is the general position of the law that depositions in affidavit not denied are deemed to be admitted, a court of law is entitled to examine the veracity and or authenticity of such depositions in the light of documents or documentary evidence in the case. Where a deposition in an affidavit is in conflict with a document or documentary evidence in the case, a court of law is entitled to reject the deposition even though there is no counter-affidavit.
This is based on the well established principle of law that a party cannot normally be allowed to lead evidence to contradict the contents of a document. And what is more, where a deposition in an affidavit is in conflict with an exhibit annexed thereto, a court of law is entitled to reject the deposition.
Let me take two paragraphs of the affidavit in support of the motion for amendment:-
“4. That it is not in dispute that the sum of $215.000 (two hundred and fifteen thousand dollars) was lent to the respondents, as shown by the affidavit in support of the motion, and the pleading particularly marked.
- That the case of the applicant throughout was that the sums of $200,000.00 and $15,000.00 were passed to the defendants as loans, and they want the sums back, or the equivalent of Naira that will purchase the said dollars as it was pleaded that the applicant lives in London where the monies were passed,”
I have very carefully examined both the Amended Statement of Claim, the Statement of defence and Counter-Claim and) do not see any paragraph vindicating or supporting paragraph 4 of the affidavit in support. More importantly, there is no admission by the respondents in the Statement of defence and Counter Claim that the sum of $215.000.00 was lent to the respondents. Therefore, there is a dispute. I have also examined the copy of the letter dated 27th May 1988. annexed to the affidavit and marked Exhibit X and I do not see how it vindicated or supports paragraph 4 above. The Exhibit only talks about $15.000.00 and not $200.000.00. and this has an effect on paragraph 6 too.
It does appear to me that the amendment sought clearly introduces a fresh claim. The question is, how can this court grant such an amendment at this stage where judgment is reserved? It is deposed in paragraph 9 of the affidavit in support that it was due to the inadvertence of counsel that the correct amount in dollar was not originally claimed. It appears to be the style or vogue for counsel to rely on the over burdened and over loaded principle of law that a party should not suffer for the mistakes of his counsel. I think there are instances when a party should suffer for the mistakes of his counsel. For instance, where a mistake of counsel affects the jurisdiction of the court, a court cannot vest itself with jurisdiction which it does not in law have, merely because it was mistake of counsel. Similarly, where grave injustice will he done to the adverse party, I think mistake of counsel cannot assist the party whose counsel has committed the mistake. The whole essence of the principle of law is to ensure that substantial justice is done to the party whose counsel committed the mistake. Therefore, if in the course of trying to do that substantial justice to the party, injustice will he done to the adverse party, the court will be entitled to lean in favour of the adverse party. In the light of the foregoing, the application for amendment is refused. It is accordingly dismissed. Section 16 of the Court of Appeal Act which learned Senior Advocate relied upon, does not, with respect assist the appellant.
I now lake the appeal. The burden is on the plaintiff to prove his case and not the defendant to prove that he is not liable. Where, however, a defendant makes a Counter-Claim, as it is in this case, the burden is on him to prove the counterclaim.
Although Order 10 Proceedings are designed to shorten the litigation process, the plaintiff must satisfy the first leg of Rule 1 (a) before a trial Judge can enter judgment in his favour as required in the second leg of the rule.
Order 10 Rule 1 (a) requires a plaintiff or any other person to swear positively to the facts relied upon by him, verifying the cause of action and the amount claimed, in the event of a claim in liquidated damages. That is not all. By the rule, the plaintiff or any other person must state in the affidavit “that in his belief there is no defence to the action except as to the amount of damages”.
In order to satisfy the provisions of Order 10 Rule 1(a), the plaintiff must in the affidavit justify or substantiate the cause of action. In other words, he must depose to facts that there is not only a valid cause of action but that he is entitled to the relief or reliefs sought. And here, the rule expects the plaintiff to verify also the amount claimed. It is not enough merely to depose that the defendant owes the specific sum. The plaintiff must go further to prove that the amount claimed is owed. The plaintiff is expected to annex documents to substantiate the amount owed if there arc such documents. If there are no such documents, a court of law will be satisfied by factual depositions in proof of the amount owed.
Learned Senior Advocate relied on paragraphs 3. 4 and 5 of the affidavit sworn to in the High Court in support of the motion for judgment. Let me quickly read the said paragraphs:
“(3) That the plaintiff/applicant claim against the defendant is for the sum of N2.300,500.00 the correct equivalent autonomous rate of $215,000 being loan granted to the 1st defendant and guaranteed by the 2nd defendant some time in December. 1987 and May 1989 respectively.
(4) That we have been served with a copy of defence and Counter-Claim.
(5) That the Statement of defence and Counter-Claim do not show that the money claimed by the plaintiff is not owing.”
In paragraph 2 of the further affidavit, Pekun Sowole deposed thus:-
That the plaintiff has just given us a letter written by the defendant confirming that the claim in this suit is concerned with loans made to the defendant/respondent and not for any joint venture and a copy is attached marked X.”
As it is, the only document relied upon by the appellant is the letter No. CAN/CM/PCS/BAN 88 of 27th May, 1988 written by C.A. Njoku, the Chairman of the 1st respondent to Mr. T. Wright of Cole Church International Co. Ltd. I had earlier referred to the letter. I do not see any paragraph in the said letter which vindicated paragraph 3 of the affidavit in support of the motion for judgment. And that is the paragraph relied upon “by learned Senior Advocate for the appellant.
While paragraph 4 of the affidavit merely deposed to the fact that a copy of defence and Counter Claim were served on the appellant, paragraph 5 deposed that the Statement of defence and Counter Claim do not show that the money claimed o by the plaintiff was not owed. Why should learned Senior Advocate rely on paragraph 4? What is there to rely upon? How does the fact of service of Statement of defence and Counter Claim help the appellant in terms of the requirements of Order 10 Rule 1(a)? Frankly, I do not see any help in that paragraph. Now to paragraph 5. It does not appear that paragraph 5 is a correct interpretation of the total effect of the Statement of defence and Counter-Claim.
And what is more, the rule requires the plaintiff to depose that “there is no defence to the action”. Learned Senior Advocate submitted that the learned trial Judge was too technical to rely on the requirement of the rule. I do not think so. Rules of court are meant to be obeyed. Since the rule specifically requires such a deposition, the appellant was bound to comply. After a careful consideration of the matter, I am unable to improve on the Ruling of the learned trial Judge as it affects the appellant.
That takes me to the cross appeal which I will deal with very briefly. At page 7 of the Ruling, the learned trial Judge said:-
“It is however not difficult to arrive at the conclusion that the various defence (sic) of the defendants do not constitute any good defence to the plaintiff’s claim for payment over of the loans granted them. The defendants’ story that the advances were contributions towards ajoint venture was blown up by the confirmation in the same pleading that the 2nd defendant gave undertaking for repayment and pledge property as a security.”
Was the above finding the conclusion really open to the learned trial Judge in the light of his decision dismissing the application of the appellant for final judgment? Does Order 10 Rule 1 empower a Judge to make such finding and arrive at the conclusion along with the order of dismissal of the appellant’s application? I think not. As it is, there are two legs in Order 10. By the first leg, the plaintiff is under a legal duty to satisfy the court that there is a valid cause of action and stating clearly in the affidavit the amount claimed. Of course, the plaintiff has to substantiate and justify the claim. Where the court is satisfied that the plaintiff has discharged the evidential burden placed on him by the first leg of Rule 1, the trial Judge will enter judgment in his favour unless the defendant satisfies the court that he has a good defence to the action on the merits. That is the essence of the second leg of Rule 1.
As result of the finding and conclusions on the case of the respondents, the learned trial Judge was in some difficulty when he said at page 8 of the Ruling as follows:-
“The plaintiff would therefore have succeeded on his summons”
While this was an effort to justify his finding at conclusion, the trial Judge went further and gave his final order of dismissal of the application. And so the statement that the “plaintiff would therefore have succeeded on his summons” is dead. In the circumstances, I set aside the finding and conclusion of the learned trial Judge that the various defence of the respondents did not constitute any good defence.
The appellant’s appeal fails. The Ruling of the learned trial Judge as it affects the appellant is hereby upheld. The cross appeal of the respondents succeeds. It is hereby allowed. It is ordered that the case be sent back to the Chief Judge of Lagos State for trial on the merits by another Judge. And because of the order I have made. I must refrain from making any comments on the defence put forward by the respondents. That will not be fair to the Judge who will hear the case. I award N 1.000.00 costs in favour of the respondents.
Other Citations: (1994)LCN/0188(CA)
