Chief Odira Ezezue V. Unudike Property Limited (2007)
LawGlobal-Hub Lead Judgment Report
ISTIFANUS THOMAS, J.C.A.
The interlocutory appeal is against the Ruling of Nosike [J] delivered on 6th May 2005 at Enugu High Court.
The main plank of the appellant can be ascertained from, the brief facts in respect of proceedings at the lower court. During the course of hearing the matter, the then plaintiff but, to be referred to as the respondent, had applied and was granted leave to amend his statement of claim. After the respondent had closed his case, the defendant, but now simply to be referred to as appellant, also applied for leave to a mend his statement of defence, which the lower court judge refused to grant, hence the appeal.
By leave of this Court, appellant’s amended briefs of argument was granted and deemed filed on 23/11/2006 in which he distilled sole issue that reads:
“Whether the trial judge exercised its discretion judicially in not allowing the amendments.”
In likewise, the respondent framed identical issue as follows:-
“Whether the trial court exercised its discretion judicially and judiciously in refusing the amendment.”
In my considered opinion, it is not in dispute that, the respondent had sought and was granted leave to amend his statement of claim. This grant was in compliance with the inherent discretion of the trial judge under Order 18 Rule 1 of Anambra State High Court Rules, 1988 applicable to Enugu State High Court. There is an adage that, what is good for the goose is also good for the gander. It is therefore not surprising that the appellant has challenged the ruling which denied him his right to further amend his amended statement of defence.
Order 18 Rule 1 Anambra State High Court Rules 1988 applicable to Enugu State High Court states:-
“The court may at any state 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 amendments which may tend to prejudice, embarrass, or delay the fair 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.”
The above provisions have been forcefully supported by the Supreme Court and this Court which are to the effect that pleadings ought to be allowed to amend or even further amend, before or after completion of trial before delivery of judgment. See Okafor v. Ikeanyi (1979) 3 & 4 SC 99; Ewarami v. A.C.B. (1978) 4 SC 99; and S.P.D.C. v. Kwameh Ambah (1999) 3 NWLR (Pt-593) 1. In The S.P.D.C. v. Kwameh Ambah (supra) at page 10, the apex court granted an amendment which was sought to fall in line with the evidence already adduced.
In the instant matter at the lower court the respondent had through its witness PW1, at page 65 of the record, tendered Exhibit B, which contained the “Power of Attorney”. Admission of Exh. B was without objection by the appellant. I have read the words “Power of Attorney” which is contained at page 85 of the record. At page 75 of the record, respondent’s witness PW1 was under cross-examination and he said therein as follows:-
“… The deed of assignment in Exh. B is 23/5/83. I as the holder of Power of Attorney … Power of Attorney donated to me was for valuable consideration. The Ogui Nike Community gave to me only one Power of Attorney, which was duly registered. I see Exh. B, the Power of Attorney given to me was extended in its tenure registered as 98/98/906. I can not remember the dated of the Power of Attorney.”
(Underlined is mine for emphasis).
Since the underlined evidence of PW 1 was obtained under cross-examination, the fact, that the witness had clearly stated that the Power of Attorney given or granted to him was “extended” and registered as No. 98/98/906, but he still further admitted that “I can not remember the date of the Power of Attorney” shows that some thing vital was missing. It was therefore proper and lawful for the appellant to re-consider his pleadings vis a vis the entire contents of the contradictory evidence of P.W.1 which was made in support of the respondent’s pleadings on which the Deed of Assignment Exh. B was tendered without objection. At page 85 of the record it is very clear that PW1 – Mr. Jacob Patrick Chukwuma Nwokolo signed the Deeds as the Assignor by virtue of Power of Attorney dated 28th day of June 1972 and registered as No. 56/56/586.
Moreover, since respondent’s sole witness could not ascertain the tenure or date of the Power of Attorney granted to him, and the appellant is now aware of the tenure or date of the grant of the Power of Attorney, it is proper that he should first apply for leave to further amend his earlier amended pleadings to run in line with the evidence already heard and Exhibit B which was already before the trial court.
Still at the lower court, the respondent pleaded in paragraph 6 of its statement of claim that it will rely at the trial court, the verdict of Enugu State High Court in suit No. E/119/74 (Chief Gabriel Agbo v. J.S.P.C. Nwokolo), in which the challenge of validity of a Power of Attorney which was granted by the same Ogui Nike Community over the entire compensation plots (including plot 448 Independent Layout as the instant matter) was affirmed by the Court of Appeal. I am of the view that reliance on that decision is not effective because the life span of any Power of Attorney must be considered especially when signing Deed of Assignment as in the instant appeal. Learned counsel for the appellant has forcefully and rightfully, argued differences of challenging the validity of a Power of Attorney in suit No. E/119/74 and the instant suit now on appeal. The former suit was filed in 1974. The Power of Attorney, the instant appellant want to plead by amending his statement of defence was given to PW1, Mr. Jacob Patrick Chukwuma Nwokolo on 25th May, 1977 and registered as 98/98/906 and therefore, it is right for the appellant to say that the alleged Power of Attorney was not in existence in the year 1974 when the former suit No. E/119/74 was filed. It is therefore wrong for the respondent to plead his paragraph 6 on the basis that the High Court and the Court of Appeal had affirmed and dismissed the validity of Power of Attorney on plot 448.
Moreover, a careful perusal of Exh. B, has shown that it was the Power of Attorney dated 25/5/77 that actually executed the Deeds of Assignment. As aptly pointed out by learned counsel for the appellant, the life span of Power of Attorney granted to PW 1 Mr. Jacob Patrick Chukwuma Nwokolo, was for 5 years starting from 28/6/77 which means the power would end on 27/6/82. It was therefore unlawful that PW1 executed the Deeds of Assignment on 25th May 1983. By then, he had no valid Power of Attorney on which he acted as assignor for the plaintiff/respondent.
Based on the above findings, I am of the firm believe that the appellant’s aim of applying to further amend his pleadings at the lower court which was wrongly denied, was to show that Exh. B was executed after the expiration of the life span of the Power of Attorney. This fact was extracted during cross-examination of the evidence of PW 1 and also in scrutinizing Exh. B. It is settled law that the laws of Nigeria has enjoined courts of record that, in procedural regularity, substantial justice must be given when there is an application to amend pleadings. This principle has been expounded by learned Jurist, Aniagolu JSC in Taiwo Okeowo v. Mrs. D.A. Migore (1979) 11 SC, 138 at page 152 where his Lordship stated thus:-
“My Lord, the laws of our land enjoins us, that while respecting procedural regularity, we must do substantial justice, with power to make amendments which we deem fit, or not to make them, as the occasions demand. I conceive that this case is one in which we must do substantial justice, technicalities notwithstanding.”
Learned jurist, Aniagolu, JSC. has referred to “Laws of our Land” and in the instant appeal, the record has contained the applicable procedural law as one of the laws of our land, namely Order 18 Rule 1 of Anambra State High Court Rules 1988 applicable to Enugu State which has been reproduced above in this judgment. This order and rule, has enjoined the trial court, “to do at any stage of the proceedings either of its own motion or on the application of either party, order any proceedings to be amended ….
(underlining is mine for emphasis)
This Court has been following the principle enunciated above, and in the case of NDIC v. Oranu (2001) 1 NWLR (Pt.744) 183 at 208 paras D- F, Mangaji, JCA. (of blessed memory] forcefully stated as follows:-
“It must be realized that a trial court is allowed to grant an amendment after evidence had been taken or even during final address of counsel in the case, provided the court is satisfied that no new issues are raised by the amendment …”
(underlined is mine for emphasis).
In the instant appeal, the learned trial judge denied the appellant his application to amend his pleadings. The denial was that the application was made in bad faith as it was made for delay, prejudice and most probably a new cause of action. With due respect to the learned trial judge, as stated much above in this judgment, the cross-examination of PW 1 had formed part of the record of proceedings which was in accordance with the pleadings of the respondent. It was not a way of delay or prejudice against the respondent, nor was it a probable new cause of action. I am of the view that if the learned trial judge had strictly applied his mind judicially and judiciously to the principles in connection under cross examination of the evidence of PW 1, he would have asked (even suo motu) the respondent to amend his pleadings, but the respondent did not seek to amend his pleadings to accord with the evidence made during cross-examination. This shows that the respondent was not aware of the consequences of his earlier amended pleadings. It was therefore right and proper that the appellant applied for leave to amend his own amended pleadings because the cross-examination had clearly established that the Power of Attorney relied upon during the execution of the Deed of Assignment had expired.
Based on above facts, the trial judge was serious error in denying the appellants his right to amend his pleadings even after the respondent had closed its case. The appellant had the right to amend his pleadings before opening his defence.
In the final analysis, the appeal is meritorious, and I allow the appeal. It is directed that the appellant as defendant at the trial court, should be allowed to amend his amended pleadings before he opens his defence.
Costs of N35,000 in favour of the appellant and against the respondent.
Other Citations: (2007)LCN/2542(CA)
