Chief Edmund I. Akaninwo & Ors V Chief O. N. Nsirim & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, JSC

In the High Court of Justice of Rivers State sitting at Port-Harcourt, the Plaintiffs for themselves and on behalf of the members of Rumueme Community Village Council instituted their action against the Defendants who were required to defend the action for themselves and on behalf of the other members of the Ogbakor Rumueme Organisation and asked for the following declaratory and injunctive reliefs in paragraph 47 of their amended statement of claim as follows –

“(a) A declaration that the Defendants are not members of the Rumueme Community Village Council in the Port Harcourt Local Government Area of the Rivers State but the descendants of Apara resident in Rumueme, Port Harcourt.

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(b) Perpetual injunction restraining the Defendants, their agents, servants and privies from holding themselves out as, or claiming to be, or parading themselves as members of the said Rumueme Community Village Council.”

The case of the Plaintiffs was heard on their amended statement of claim and the Defendants original statement of defence after the Defendants’ application to also amend their statement of defence was refused by the learned trial judge. In the course of the hearing of the case, the Plaintiffs called two witnesses in support of their claim while the Defendants in their defence called three witnesses. However at the conclusion of the evidence in chief of the Plaintiffs’ second witness and the cross-examination of the witness by the learned Counsel to the Defendants, the Defendants filed their application for leave of the trial Court to amend their statement of defence. This application was heard and refused by the learned trial judge before the hearing of the case was concluded. The learned trial judge in his judgment delivered on 3rd July, 1987, granted the two reliefs sought by the Plaintiffs at pages 245 – 246 of the record of this appeal where the learned trial judge said –

“I am convinced from the facts and circumstances I have so far examined, to hold that the Plaintiffs have proved their case on the preponderance of evidence and are therefore entitled to the reliefs they (sic) seek. I am convinced that the said reliefs if granted will have far reaching consequences to make for peace in Rumueme where both parties will remain to enjoy. I therefore enter judgment in favour of the Plaintiffs by granting them the reliefs sought as follows:

(1) I hereby declare that the Defendants are not members of the Rumueme Community Village Council, otherwise known as Rumueme Village Council in the Port Harcourt Local Government Area of Rivers State, but the descendants of Apara resident in Rumueme, Port Harcourt.

(2) I hereby restrain the Defendants, their agents, servants and privies perpetually from holding themselves as members of the said Rumueme Community Village Council.”

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All the Defendants who were aggrieved by the judgment of the trial High Court, appealed to the Court of Appeal against it. In addition, the Defendants also sought and were granted leave by the Court of Appeal to appeal against the interlocutory ruling of the trial High Court refusing their application to amend their statement of defence. Upon hearing both Defendants’ appeals, the Court of Appeal in its judgment delivered on 15th July, 1997, dismissed the appeals and affirmed the decision of the trial Court in both its Ruling and Judgment. Still dissatisfied with the decision of the Court of Appeal against them, the Defendants are now on a further and final appeal to this Court.

Before the appeal came up for hearing, the Defendants who are now the Appellants in this Court have filed their Appellants’ brief of argument and the Appellants’ reply brief which were duly adopted by their learned Counsel. The Plaintiffs who are now Respondents in this Court also duly filed their Respondents’ brief of argument which was deemed adopted by them in their absence and the absence of their learned Counsel on the day the appeal was heard in accordance with Order 6 Rule 8(6) of the Rules of this Court.

In the Appellants’ brief of argument, three issues were identified for the determination of the appeal. The issues are –

Were the learned Justices of the Court of Appeal right when they upheld the ruling of the learned trial judge dismissing the Defendants application for amendment at a stage when the Plaintiffs were yet to close their case? If answered in the negative has the failure to grant the Defendants’ application for amendment occasioned any miscarriage of justice?

Were the learned Justices of the Court of Appeal right when they held that there was nothing inequitable in granting the reliefs sought by the Plaintiffs?

Were the learned Justices of the Court of Appeal right when they held that Exhibits ‘A’ & ‘B’ were legally admissible in instant proceedings and that they constituted admissions against the Defendants?

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In the Respondent’s brief of argument however, after attacking issue number two in the Appellants’ brief that the issue does not arise from the decision of the Court below by way of a preliminary objection, the Respondents proceeded to formulate the following two issues for the determination:-

Have the Defendants/Appellants shown any ground on which this appellate Court should interfere with the discretion of the trial judge as affirmed by the Court below in refusing their application to amend their statement of defence at that stage of the proceedings where the Respondents have called their last witness.

Whether Exhibits ‘A’ and ‘B’ were admissible in evidence; and if not, whether their admission as Exhibits occasioned a miscarriage of justice.

Although the Respondents in their Respondents’ brief have raised preliminary objection to the second issue in the Appellants’ brief of argument, and taking into consideration that that issue relates to the grounds of appeal arising from the judgment of the trial Court on their substantive case, I shall first treat and dispose of issue number one in both the Appellants’ and the Respondents’ briefs of argument arising from the interlocutory ruling of the trial Court refusing the Defendants’ application to amend their statement of defence. I shall then come back to the issues arising from the judgment of the trial Court affirmed by the Court below on the substantive claims of the Respondents as the case may be.

The nature of the dispute between the parties in this appeal as revealed from the record of appeal is quite simple taking into consideration that the parties have lived together as members of Rumueme Community for many years until 1965 when the Appellants formed Ogbako Rumueme Organisation separate from the Rumueme Village Council to which both parties hitherto-for belong. This development gave rise to the dispute as to whether the Appellants are indigenes of Rumueme Community eligible to participate in the sharing of the farmlands in the area and also benefit from the compensation money paid to the Community by the Government. While the Respondents who

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were the Plaintiffs at the trial Court are claiming to be the only indigenes of Rumueme to the exclusion of the Appellants who were said to be strangers, the Appellants are in turn asserting that they are also indigenes of the area.

Now coming back to the first issue for determination in this appeal, it is whether or not the Court below was right in upholding and affirming the ruling of the trial Court dismissing the Appellants’ application as Defendants to amend their statement of defence. It was pointed out by the learned Counsel to the Appellants that the Defendants/Appellants’ application to amend their statement of defence was refused by the learned trial judge in the course of the proceedings while the second witness to the Plaintiffs/Respondents was being cross-examined; that although the Court below seemed to have agreed with the reasons given by the trial Court for refusing the amendment including causing undue delay of the trial with the resultant injustice to the Respondents, that Court having plainly disagreed with the trial Court that it was too late at the stage of the proceedings to have granted the amendment, the Appellants’ appeal ought to have been allowed by the Court below. Learned Counsel referred and relied on the cases of Adekeye & Anor. v. Ogunbade (1987) 6 S.C. 268 at 280 – 281 and First Bank of Nigeria Plc v. May Medical Clinics and Diagnostic Centre Ltd & Anor. (2001) 9 N.W.L.R. (Pt. 717) 28 at 44, on the principles guiding Courts in deciding whether or not to grant application for amendment of pleadings, and argued that the Court below was wrong in holding that the trial Court was right in refusing the Defendants/Appellants’ application. With regard to one of the reasons given for refusing the application which was affirmed by the Court of Appeal that the affidavit in support of the application was defective having been deposed under the Oaths Law, learned counsel to the Defendants/Appellants stressed that as the affidavit was only defective in form and not in substance, the trial Court was permitted under Section 84 of the Evidence Act and the case of Attorney General of the Federation & 2 Ors. v. Abdullahi Yunusa Bayawo (2000) 7 N.W.L.R. (Pt. 665) 351 at 359, to use the affidavit in arriving at its decision. Learned Counsel finally concluded that the judgment of the Court below affirming the dismissal of the application to amend the Statement of Defence, had occasioned a miscarriage of justice justifying allowing this appeal to set aside that decision and grant the Appellants’ application to amend their statement of defence.

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For the Plaintiffs/Respondents, it was contended that the Defendants/Appellants’ application having been brought at the stage in the proceedings when the learned Counsel to the Plaintiffs/Respondents had told the trial Court that he was not calling any other witness after the testimony of PW2 who was then being cross-examined by learned Counsel to the Defendants/Appellants, the trial Court was right in refusing the application for amendment of the statement of defence on the grounds among others that it would have delayed the hearing of the case and cause hardship to the Plaintiffs/Respondents and for that reason, the Court below was right in affirming that decision. Learned Counsel emphasized that the amendments sought by the Defendants/Appellants which abandoned a number of paragraphs in which some of the facts pleaded in the statement of claim were admitted, with entirely new facts being brought into the case of the Defendants/Appellants, would work hardship on the Plaintiffs/Respondents resulting in filing further amendments and recalling of witnesses. The ground of refusal of such application being matters within the discretion of the trial Court which exercised that discretion not only judicially but also judiciously, the decision of the Court below not to interfere with the exercise of the discretion of the trial Court in refusing the application was’ quite in order, argued the learned Counsel, who called in aid many cases in support of his stand. These cases include University of Lagos & Anor. v. Olaniyan & Ors. (1985) 1 N.W.L.R. (Pt. 1) 156 at 175; University of Lagos v. Aigoro (1985) 1 N.W.L.R. (Pt. 1) 143 at 148 – 149; Enekebe v. Enekebe & Anor. (1964) All N.L.R. 95 at 100; Saffieddine v. C.O.P. (1965) 1 All N.L.R. 545; Odusote v. Odusote (1971) 1 All N.L.R. 219 and Awani v. Erejuwa 11 (1976) 11 S.C. 307.

The circumstances under which a Court may grant or refuse leave to amend pleadings are clearly set out in Order XXXIV of the Rules of the High Court of Justice of Rivers State under which the Defendants/Appellants’ application was filed. It reads:-

“The Court may at any stage of the proceedings, either of its own motion or on the application of either party, order any proceeding to be amended, whether the defect or error be that of the party applying to amend or not; and all such amendments as may be necessary or proper for the purpose of eliminating all statements which may tend to prejudice,

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embarrass, or delay the trial of the suit, and for the purpose of determining in the existing suit the real questions or question in controversy between the parties, shall be so made. Every such order shall be made upon such terms as to costs or otherwise as shall seem just.”

In the exercise of the no doubt discretionary powers conferred, the Court must have more regard to substance. In other words as a general rule, an amendment of any proceeding including pleadings under Order XXXIV quoted earlier, will be granted if it is for the purpose of eliminating all statements which may tend to prejudice, embarrass, or delay the trial of the suit, and for the purpose of determining in the existing suit the real questions or question in controversy between the parties. The law is indeed well settled that an amendment of pleadings should be allowed at any stage of the proceedings unless it will entail injustice to the other side responding to the application. The application should also be granted unless the applicant is acting malafide or by his blunder, the applicant has done some injury to the Respondent which cannot be compensated in terms of costs or otherwise. See Tildesley v. Harper (1878) 10 Ch. D. 393 at 396; Cropper v. Smith (1884) 26 Ch. D. 700 at 710; Shoe Machinery Co. v. Cutlan (1896) 1 Ch. 108 at 112; Amadi v. Thomas Aplin & Co. Ltd. (1970) 1 All N.L.R. 409 and the case of Oguntimehin v. Gubere & Anor. (1964) 1 All N.L.R. 176 at 180 where the Court upheld an amendment of pleadings after the close of evidence of the parties and in so doing the Court observed –

“In the present case either party called his surveyor at the start of the trial, and both parties agreed on what was in issue between them by reference to their plans. In effect they proceeded with the contest as if the Plaintiffs’ pleading had been what it became after the amendment; all that the amendment did was to write down what the Defendant had known all along to be the Plaintiffs’ case. The amendment did not take him by surprise, and he has no just cause for complaint.”

Taking into consideration the principles considered and applied by this Court in Oguntimehin’s case quoted above, it is not difficult to see that in the instant case, the trial judge was in error when he gave as one of his reasons for refusing the application that it was brought too late which even the

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Court below could not agree. In Oguntimehin’s case (supra), the application for amendment of pleadings was brought after the close of evidence on both sides, and the application was granted by the lower Court and upheld on appeal by this Court. Definitely, on the question of the appropriate time for bringing application to amend pleadings in the course of trial, the position in the present case where the Defendants/Appellants brought their application to amend their statement of defence after the conclusion of their cross-examination of second witness for the Plaintiffs, is certainly on a firm ground and the Court below having so found, ought to have allowed the amendment.

Important questions of what an amendment is and when it may be refused were considered and answered by this Court in Chief Adedapo Adekeye & Anor. v. Chief O. B. Akin Olugbae (1987) 6 S.C. 268 at 280 – 281 where Eso J.S.C. said –

“The aim of an amendment is usually to prevent the manifest justice of the cause from being defeated or delayed by formal slips which arise from the inadvertence of Counsel. It will certainly be wrong to visit the inadvertence or mistake of Counsel on the litigant. The Courts have therefore through the years taken a stand that however negligent or careless may have been the slip, however late the proposed amendment, it ought to be allowed, if this can be done without injustice to the other side, for a step taken to ensure justice cannot at the same time and in the same breath be used to perpetuate an injustice on the opposite party. The test as to whether a proposed amendment should be allowed is therefore whether or not the party applying to amend can do so without placing the opposite party in such a position which cannot be redressed by that panacea which heals every sore in litigation namely costs.”

Although the guiding principles in granting or refusing amendments to pleadings outlined in Adekeye’s case (supra) are based on the provisions of Order 25 Rule 1 of the High Court of Lagos State Civil Procedure Rules which are not in pari materia with the provisions of Order XXXIV of the Rivers State High Court Civil Procedure Rules now under consideration, the guiding principles applicable to the Rules and the Order in practice, are virtually the same.

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Some of the reasons given by the learned trial judge and endorsed by the Court below for refusing the Defendants/Appellants’ application to amend their statement of defence include that the amendments which affected 10 out of the 23 paragraphs of the statement of defence, amounted to a complete substitution of a new statement of defence. Not only that, the learned trial judge also found that the amendments would have the effect of allowing the Defendants/Appellants to withdraw or abandon paragraphs in which part of the claim of the Plaintiffs/Respondents have been admitted, thereby forcing the Plaintiffs/Respondents to have to file a reply to the new statement of defence with the necessity of having to recall the two witnesses who had already testified. The question is, are these reasons given for refusing the application for amendment justified, most especially taking into consideration of the clear finding of the learned trial judge at page 160 of the record of this appeal? This is what the learned trial judge said:-

“The statement of defence has 23 paragraphs out of which ten (10) are affected by the proposed amendment. It is interesting to note that the ten paragraphs being amended constitutes the main defence of the defendants case.”

Indeed if the amendments being sought by the Defendants/Appellants in their application constitutes their main defence to the case against them by the Plaintiffs/Respondents, that finding alone was enough to have put the trial Court on guard on the need to adhere to the guiding principles in granting or refusing amendments of pleadings. With this findings, both the trial Court and the Court below ought in my opinion, to have found that the amendment being sought was necessary for the purpose of determining the real questions in controversy between the parties and therefore should have been granted in order to prevent manifest injustice to the Defendants/Appellants by allowing them to plead their main defence to the case against them. Since the claims of the Plaintiffs/Respondents in their action was for a declaration that the Defendants/Appellants are not members of the Rumueme Community Village Council and a perpetual injunction restraining the Defendants/Appellants from asserting that they also belong to the same village council, it is quite clear that the amendments being sought in the

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application for amendment revolves around these claims which are the real questions in controversy between the parties.

It is therefore difficult to see how amendment of the statement of defence which even the learned trial judge found to have constituted the main defence of the Defendants/Appellants in the case against them, could possibly prejudice, injure, surprise, over-reach or embarrass or work any injustice to the Plaintiffs/Respondents.

Although in the Respondents’ brief of argument their learned Counsel relied on the statement made by the learned trial judge as part of his reasons in his ruling for refusing the application to amend the statement of defence that the Plaintiffs counsel on 24/9/86 had told the trial Court that PW.2 was his last witness and that the Plaintiffs were not calling any more witnesses, is not supported by the record of the trial Court. This is because from the record at pages 114 – 120 containing the proceedings of the trial Court of 24/9/2986 when both witnesses of the Plaintiffs PW.l and PW 2 testified at the trial Court, the record shows at page 120 that at the end of the evidence in chief of PW.2, the case was adjourned to 8/10/1986 for cross-examination and continuation. There is no statement by the learned Counsel to the Plaintiffs on record that PW.2 was his last witness and that he was not calling any other witness for the Plaintiffs as wrongly attributed to him by the learned trial judge in his Ruling now on further appeal to this Court. This of course means that the discretion exercised by the learned trial judge in dismissing the application to amend the statement of defence in this case, is not supported by the facts relied upon by him in showing that the Plaintiffs would be prejudiced, injured, surprised or over-reached. In this respect, the Court below was wrong in failing to examine these facts in coming to the conclusion that the discretion of the trial Court was exercised judicially and judiciously. In other words a discretion exercised by Court in vacuo, unsupported by the relevant facts cannot pass the “judicial and judicious” test. See Buhari v. Obasanjo (2003) 11 SCM, 89; (2003) 17 N.W.L.R. (Pt. 850) 587 at 660.

Another reason given by the trial Court and endorsed by the Court below for dismissing the application to amend the statement of defence was that granting the amendment would lead to

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allowing the Defendants to withdraw or abandon the admissions to the case of the Plaintiffs they had earlier made thereby prejudicing the Plaintiffs. However, having regard to the fact that the main relief claimed in the Plaintiffs’ action at the trial Court is a declaratory relief which by law is not granted on admission by the Defendants but on proof by evidence to the satisfaction of the trial Court before exercising its discretion of whether or not to grant the relief, the reason given by the learned trial judge that to allow the withdrawal of the admission would have prejudiced the Plaintiffs, is not supported by law. This is because with or without the admission in the statement of defence, the duty on the Plaintiffs to prove their entitlement to the declaratory relief on their own pleading and evidence, would not have changed. This is because the law is well settled that the Court does not make declarations of right either on mere admissions or in default of defence without hearing appropriate evidence and being satisfied with such evidence. See Metzger v. Department of Health & Social Security (1977) 3 All E.R. 444 at 451 where Megarry, V.C. said:-

“The Court does not make declaration just because the parties to litigation have chosen to admit something. The Court declares what it has found to be the law after proper argument not merely after admission by the parties. There are no declarations without arguments, that is quite plain.”

See also Wallensteiner v. Moir (1974) 3 All E.R. 217; Vincent Bello v. Magnus Eweka (1981) 1 S.C 101; Motunwase v. Sorungbe (1988) 4 N.W.L.R. (Pt. 92) 90; Okedare v. Adebara (1994) 6 N.W.L.R. (Pt. 349) 157 at 185; Qua Vadis Hotels and Restaurants Limited v. Commissioner of Lands Midwestern State & Others (1973) 6 SC 71 at 96; Agbaje v. Agboluaje (1970) 1 All N.L.R 21 at 26 and Fabunmi v. Agbe (1985) 1 N.W.L.R. (Pt. 2) 299 at 318 where Obaseki JSC said –

“A claim for declaration of title is not established by admissions as the Plaintiff must satisfy the Court by credible evidence that he is entitled to the declaration. The Court does not grant declaration on admission of parties. It has to be satisfied that the Plaintiff owns the title claimed.”

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In any case, the Court below in its judgment now on appeal agreed with the trial Court that in refusing the application for the amendment of statement of defence, the trial Court had exercised its discretion judicially and judiciously hardly giving any room for interference by the lower Court. However, taking into consideration that the parties are merely disputing over the membership of a Community Village Council and the Plaintiffs were allowed by the trial Court to amend their statement of claim in paragraphs 13 and 34 by substitution of new paragraphs on 24/9/86, while barely less than two months later, the Defendants application filed on 11/11/86 to amend 10 out of 23 paragraphs of their statement of defence was refused by the same trial Court, clearly this same discretion of the learned trial judge can hardly answer the description that it was exercised judicially and judiciously as found by the Court below. In otherwords, in the instant case where it had not been shown that the Plaintiffs would suffer any prejudice by the Defendants’ application to amend their statement of defence after similar application was granted to the Plaintiffs, the fact that the Defendants’ application was made after the cross-examination of the second witness to the Plaintiff was not enough reason to refuse the application because such application by a Defendant may be granted even after the close of the case of the Plaintiffs. See Okolo v. Nwamu (1973) 2 SC. 59 at 68. This is why I cannot agree with the learned Counsel to the Respondents that to allow the amendments sought in the present case would be unjust to the Respondents. Indeed to me, the proposed amendments have raised points which appear to be vital to the case between the parties, and unless they are adjudicated and pronounced upon, the real issues between the parties will be left undecided. I am therefore satisfied that the Plaintiffs/Respondents were not misled or embarrassed by the proposed amendments. In reality, the learned trial judge clearly proceeded on wrong principles in refusing the Defendants/Appellants’ application and the Court below was equally wrong in affirming the decision of the trial Court. I am not in any doubt in this respect that to allow the Ruling of the trial Court as affirmed by the Court below to stand, would result in a real injustice to the Defendants/Appellants.

In the result, this appeal succeeds and the same is hereby allowed on the first issue for determination alone. The judgment of the Court below delivered on 15th July, 1997, dismissing the

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Defendants/Appellants’ appeal and affirming the Ruling and Judgment of the trial Court, is hereby set aside. In place of that judgment set aside, judgment is hereby entered for the Defendants/Appellants granting their application to amend their statement of defence. Consequently, the case between the parties is hereby remitted to the trial High Court of Justice of Rivers State or hearing by another Judge on the pleadings of the parties as amended.

With this conclusion, there is now no need to consider the appeal on the remaining two issues for determination.

I am not making any order on costs.

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SC. 88/2001