Chief Of Defence Staff Gen. O. A. Azazi & Ors V. Major Gen. Ovo Adhekegba (2009)

LawGlobal-Hub Lead Judgment Report

JIMI OLUKAYODE BADA, J.C.A.

This is an interlocutory appeal against the Ruling of the Federal High Court, Abuja delivered on the 28th day of April, 2008 wherein the Court exercised its discretion and granted leave to the Respondent to amend his Originating Summons.

Briefly, the facts of the case are that the Respondent a Major-General In the Nigerian Army received a letter conveying the decision of the Army Council meeting held on 11th day of February 2008, and dated the 11th day of February 2008 from the Appellants who were members of the Army Council.

The letter conveyed the decision advising him to apply for voluntary retirement in line with the Harmonised Terms and Conditions of Service 2007 and his application thereto should reach the 2nd Appellant not later than 10th March 2008 so that the Army Council might not need to consider the Respondent for compulsory retirement.

The Respondent, dissatisfied with the decision of the Army Council appealed to the President, & Commander-in-Chief as required by the army regulations, for a review. When there was no response from the President, & Commander-in-Chief and in order to avoid adverse consequences of compulsory retirement he approached the Federal High Court for interpretation of the Constitution of the Federal Republic of Nigeria and Armed Forces Act. The Respondent took out an Originating Summons for the determination of the following questions:-

1. Whether the Defendants acted properly under the provisions of the Armed Forces Act, Harmonised Terms and Conditions of Service for the Nigerian Armed Forces (Officers) 2007 and the Constitution of the Federal Republic of Nigeria, 1999, when they considered matters relating to the Plaintiff at the meeting of February 11, 2008 and resolved that the Plaintiff resigns his commission or be compulsorily retired with the consequence of forfeiture of 6 months salary on compulsory retirement.
2. Whether the Defendants’ conclusion at the meeting of February 11, 2008 concerning the commission of the Plaintiff which resulted in the decision contained in the letter of February 11, 2008 was not inconsistent with the Plaintiff’s right to fair hearing guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999.
3. Whether the composition of the Army Council which met on February 11, 2008 deliberated and resolved that the Plaintiff resign his commission on disciplinary grounds was not in violation of the Constitution of the Federal Republic of Nigeria, 1999, and the Armed Forces Act Cap. A 20 Laws of the Federation.

While the matter was pending before the Court, the Appellants issued another letter dated the 6th day of March 2008 so as to convey the correct decision of the Army Council meeting of 11th February 2008. As a result the Respondent applied to amend the Originating Summons by substitution of the letter of 11th February 2008 with that of 14th March 2008 and addition of two declarations.

The application for amendment was opposed by the Appellants but it was granted by the Court.

Dissatisfied with the said Ruling the Appellants now appealed to this Court.

The Learned Counsel for the Appellants formulated two issues for determination as follows:-

1. Whether having regard to the nature of the amendment sought by the Respondent, the Court below was not wrong in granting the Respondent’s application for amendment dated the 13th day of March 2008 and filed on 18th March 2008 (Ground 1, 2, and 3).
2. Whether the Court below was right when it fixed the substantive amended Origination Summons to 28th May 2008 for hearing and directed the parties as to the period within which to file and exchange written addresses, without hearing and determining the Appellant’s Preliminary Objection (Ground 4).

The Learned Senior Counsel for the Respondent also formulated two issues for determination as follows:-

1. Whether the Learned trial Judge acted within the Law and properly on the peculiar facts of this case in granting the amendments.
2. Whether the adjournment of the case for hearing after the Ruling with the concurrence of the Appellant’s Counsel was wrongful exercise of discretion.

At the hearing, the Learned Counsel for both parties adopted and relied on their respective briefs of argument.

The Learned Senior Counsel for the Respondent raised Preliminary Objection on the following grounds:-

(a) The Court lacks jurisdiction to hear the appeal.

Particulars – Grounds 1, 2, 3 & 4 in the Notice of Appeal violates Section 241 of the Constitution of the Federal Republic of Nigeria 1999.

(b) Ground 4 of the Notice of Appeal did not arise from the Ruling of 28th April 2008 delivered by the High Court and appealed against.

The Learned Senior Counsel for the Respondent in his submission stated that the appeal being interlocutory appeal and grounds of appeal being of mixed law and fact require leave of the Federal High Court or the Court of Appeal under Sections 242 and 243 of the Constitution of the Federal Republic of Nigeria 1999. He stated that all the four grounds read together with particulars are of mixed law and fact as they constitute quarrel with the exercise of Court’s discretion.

He also submitted that Ground 4 relates to proceedings which occurred outside the ruling allowing amendment of the Respondent’s Originating Summons. The ground of appeal did not arise from submission of Counsel and ruling of the Court.

He submitted that this Court cannot exercise jurisdiction in this appeal by reason of incompetent appeal.

Learned Senior Counsel for the Respondent relied on the following cases:-

Investors International (London) Ltd vs. F.B.N. PLC (2008) 10 NWLR Part 1096 at Page 427 at 441 – 442; Adetana vs. Edet (2004)16 NWLR Part 899 Page 338 at 359; Briggs vs. S. L. O. R. S. N. (2005)12 NWLR Part 938 Page 59 at 86; Long John vs. Blank (2005) 17 NWLR Part 953 Page 1 at Pages 8-9; Ekanem vs. Umanah (2006)11 NWLR Part 992 Page 510 at 524-525;. Olosunde vs. Eyialegan (2005) All FWLR Part 242 Page.503 at 506; Mercantile Bank Nig. PLC vs. Nwobodo (2005) All FWLR Part 281 at 1640; Government of Akwa Ibom State VS. Power Com Ltd (2005) All FWLR Part 246 Page 1353 at 1366 Paragraph B – C.

The Learned Counsel for the Appellants in answer to the Respondent’s Preliminary Objection filed Appellant’s Reply Brief of Argument in which he contended that the Notice of Preliminary Objection lacks merit and it should be struck out.

The Learned Counsel referred to the Ruling of the lower Court in an application for stay of further proceedings of the Respondent’s suit pending the determination of this appeal, wherein the lower Court held that the grounds of appeal of the Appellant are grounds of law.

He submitted that the decision is binding on the parties. He relied on the following cases:-

UBA VS. Onagoruwa (1996) 3 NWLR Part 439 Page 700 at 709 Paragraph F;

Olatunji vs. Babatunde (2000) 2 S.C. Page 9 at Pages 15 -16 lines 30 – 35;

Koya vs. U.B.A. LTD (1997) 1 NWLR Part 481 Page 251 at 266 Paragraph D;

Sule vs. Nigerian Cotton Board (1985) 2 NWLR Part 5 Page 17;

Fadiora vs. Gbadebo (1978)11 NSCC Page 121 at 126 – 127 lines 30 -35;

Faleye & Others vs. Otapo & Others (1995) 3 NWLR Part 381 Page 1 at28-29;

Daggash vs. Bulama (2004) 14 NWLR Part 892 Page 144.

He submitted further that having regard to the Ruling of the Court below there is an issue estoppel between the parties to this appeal such that the Respondent cannot validly raise the issue of:-

(a) Whether the Appellant’s grounds of appeal are of mixed law and fact.

(b) Whether the Appellants needed to seek and obtain leave to appeal on ground of mixed law and fact and

(c) Whether the Appellants appeal challenges the exercise of the discretion of the Court below.

In view of the foregoing submissions, Learned Counsel for the Appellants urged this Court to hold that the Respondent is precluded from contending that the Appellant’s appeal is incompetent on the ground that the grounds are grounds of mixed law and fact and no leave under Section 241 of the Constitution of the Federal Republic of Nigeria 1999, was sought or obtained by the Appellants to raise them. He then urged that the Preliminary Objection should be dismissed.

The Learned Counsel for the Appellants in his further submission stated that if this Court is of the view that the Respondent is not caught by issue estoppel, then the Appellant’s Grounds of appeal must be carefully examined.

On Ground 4, he urged this Court to note that this is not a ground alleging error in the grant of an application for adjournment brought by a party, in which case it could be said that the grant or otherwise of an application for adjournment is at the discretion of the Court, thus being a ground of mixed law and fact. Rather it is a contention that having decided to hear the Appellant’s Notice of Preliminary Objection after disposing of the Respondent’s motion for amendment, the Court below was wrong in fixing the amended Originating Summons for hearing and directing parties as to the time within which written addresses on the said summons should be filed without hearing and or determining the Preliminary Objection one way or the other. He submitted that this is a ground of law. He referred to the following cases:-

Ogbechie vs. Onochie (1986) 2 NWLR Part 23 Page 484 at 490;

Nwadike vs. Ibekwe (1987) 4 NWLR Part 67 Page 718;

The State vs. Bassey (1994) 9 NWLR Part 367 Page 130 Page 145-146.

Nigeria National Supply Co. ltd vs. Establishment Sima Vaduz (1990) 7 NWLR Part 164 Page 526 at 548 – 549.

Also on situation when leave of Court is not required to file an appeal, Learned Counsel referred to the following cases:-

Chief S. O. Maduabuchukwu vs. Engineer Boniface O.

Maduabuchukwu (2006) 10 NWLR Part 989 Page 475 at Page 492 Paragraph G – H;

Elugbe vs. Omokhafe & Others (2004) 11 -12 S.C. Page 74;

IBWA vs. Sasegbon (2007) 16 NWLR Part 1059 Page 195 at 219 Paragraph E – F.

He finally submitted that the four grounds of appeal are pure grounds of law.

On the whole he urged this Court to dismiss the Respondent’s Notice of Objection.

On the question of issue estoppel raised by the Learned Counsel for the Appellants, I do not agree with his submission that in view of the Ruling by lower Court on the application for stay of further proceedings that the Respondent cannot validly raise the issue of:-

(a) Whether the Appellants Grounds of Appeal are of mixed law and fact;

(b) Whether the Appellants needed to seek and obtain leave to appeal on ground of mixed law and fact, and

(c) Whether the Appellant’s appeal challenges the exercise of the discretion of the Court below.

This is because there are two kinds of estoppel by record which is also called Estoppel per rem judicatam. The first is usually referred to as “cause of action estoppel” and it occurs where the cause of action is merged in the judgment, that is Transit in rem judicatam. See King vs. Hoare (1844)13 M & W Page 495 at Page 504. Therefore on this principle of law (or rule of evidence) once it appears that the same cause of action was held to lie (or not to lie) in final judgment between the same parties, or their privies, who are litigating in the same capacity and on the same subject matter) that is an end of the matter. They are precluded from re-litigating the same cause of action, There is however, a second kind of estoppel described as Estoppel inter parties, This usually occurs where an issue has earlier on been adjudicated upon by a Court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in this circumstance “issue estoppel” arises.

This is based on the principle of law that a party is not allowed to (i.e. he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him (See Qutram vs. Morewood (1803) 3 East Page 346). Issue estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law.

However for the principle to apply, in any given proceedings, all the preconditions to a valid plea of estoppel inter parties or per rem juricatam must apply, that:-

(1) The same question must be of decision in both proceedings (which means that the question for decision in the current suit must have been decided in the earlier proceedings),

(2) The decision relied upon to support the plea of issue estoppel must be final,

(3) The parties must be the same (which means that parties involved in both proceedings must be the same (per se or by their privies).

Dealing with the issue of “finality” of judgment for the purpose of establishing a plea of res judicata, the learned authors of Spencer Bower & Turner on the Doctrine of Res Judicata 1969 Edition in Article 164 page 134 state as follows:-

“A judicial decision is deemed to be final, when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution and is absolute, complete and certain and when It is not lawfully subject to subsequent decision, review or modification by the tribunal which pronounced it…………”

Again in Article 168 at page 135 the same learned authors in the same book observed that:-

“No finding of the Court or of a jury of a trial which has proved abortive, or a new trial having been directed, will give rise to a valid plea of estoppel. And a decision of the Court setting aside the verdict of a jury, or setting aside a judgment entered pursuant thereto and directing a new trial will not result in either party being estopped per rem judicatam by anything held on the facts in the judgment in which the new trial is ordered, for the Judgment must be read as deciding no more than that, the first trial being unsatisfactory, the issues tried therein should be re-submitted to the Court for fresh consideration.”

Adverting therefore to the principles of law enshrined in the foregoing quotation and with which I am in agreement, one may legitimately ask whether the earlier ruling on stay of further proceedings was, indeed final. In my humble view, it is not a final decision, therefore the plea of estoppel inter parties or per rem judicatam will not apply in this case. See the following cases:-

Fadiora vs, Gbadebo (1978) S.C. Page 219 at 228 – 229;

Oyerogba v. Olaopa (1998) 12 SCNJ Page 115 at 129;

Ito vs Ekpe (2000) 3 NWLR Part 650 Page 678;

Oyede VS. Olusesi (2005) Volume 39 WRN Page 157.In order to appreciate contentions of both counsel on the Preliminary Objection it would be necessary to critically examine the relevant laws and the evidence before the Court.

The proceedings which resulted in the ruling of the learned trial Judge, appealed against, was an application for amendment of the Originating Summons.

It was contended on behalf of the Respondent that the appeal being an interlocutory appeal and grounds of appeal being of mixed law and fact require the leave of the Federal High Court or the Court of Appeal under Sections 242 and 243 of the Constitution of the Federal Republic of Nigeria 1999.

On the other hand, the Learned Counsel for the Appellants contended that the grounds of appeal are grounds of law alone.

Under Section 241(1) of the 1999 Constitution of the Federal Republic of Nigeria, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:-

(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;

(b) Where the ground of appeal involves questions of law alone, decision in any civil or criminal proceedings;

(c) Decisions in any civil or criminal proceedings on questions as to the interpretation or application of the Constitution.

(d) ………………………………..

(e) ………………………………….

(f) ……………………………….

Section 242 (1) of the same Constitution states that:-

“subject to the provisions of section 241 of this Constitution, an appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.

(2) …………………………………

It is therefore clear from the foregoing provisions of the Constitution that leave to appeal is a constitutional requirement under Section 241, 242, & also 243 of the Constitution, Thus a notice of appeal filed without the necessary leave to appeal, whether within or outside the period prescribed by Section 25 (2) (a) of the Court of Appeal Act, is incompetent.

The Learned Senior Counsel for the Respondent contended that all the grounds of appeal are of mixed law and fact whereas Counsel for the Appellants contended that all the grounds of appeal are grounds of law alone.

The distinction between a ground of law from a ground of fact is not always easy but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds of appeal reveal a misunderstanding by the lower Court of the law, or a misapplication of the law to the fact already proved. A ground of appeal which complains of a misunderstanding by the lower Court of the law or a misapplication of the law to the facts already proved or admitted is a ground of law. But a ground of appeal which questions the evaluation of facts before the application of the law, is a ground of mixed law and fact.

Furthermore, a complaint in a ground of appeal that a trial Court failed to consider the issues raised on the pleadings before it is a complaint involving questions of law alone. Also a complaint in a ground of Appeal in the Court of Appeal of a failure of the High Court to discharge its judicial duty of considering and pronouncing on the issues before it involves a question of law alone, Complaint about wrongful admission of evidence is also a question of law. See the following cases:-

Paul Nwadike & 2 Others v. Cletus Ibekwe & 2 Others (supra):

J. B. Ogbechie & 3 Others v. Gabriel Onochie & 2 Others (supra).

At this stage it would be necessary to set out the Appellants grounds of appeal and critically examine it in line with the position of the law.

“Ground One

The Learned trial Judge erred in law when it granted the Respondent’s motion dated 13th March 2008 and filed on 18th March 2008 for the amendment of his Originating Summons.

Particulars of Errors

(1) By Order 7 rule 3 of the Federal High Court (Civil Procedure Rules) 2000 the content of an Originating Summons consist of a statement of the questions on which the Plaintiff seeks the determination or direction of the Court or, as the case may be concise statement of the reliefs or remedies claimed.

(2) The Respondent’s application sought to substitute the entire original questions for determination and reliefs with a new set of questions and reliefs thereby abandoning the original questions and reliefs.

(3) The amendment proposed by the Respondent sought to introduce a new cause of action and facts which did not exist at the date the Originating Summons was filed and or issued.

(4) There was no basis in law for the grant of the Respondent’s application.

Ground Two

The trial Court erred in law by granting the Respondent’s application for amendment when the amendment proposed by the latter was capable of changing and indeed radically changed the nature of the original action before that Court.

Particulars of Errors

The Respondent’s contention as can be gleaned from his questions for determination in the original originating summons was whether he could be directed to resign his commission or be compulsorily retired and his reliefs therein were targeted at declaring the decision of the Appellants, which directed him to resign or be forced into compulsory retirement as null and void.

(2) The proposed amendment, which the trial Court granted involves a determination of whether his removal or compulsory retirement, vide a letter of 14th March 2008, a letter which issued after the suit had commenced based on the request of the Respondent, was not improper, illegal or ultra vires, a radically different case from the one originally filed by the Respondent.

(3) The trial Court admitted in its ruling that the proposed amendment was radical and fundamental.

(4) An amendment which seeks to change the nature of a case ought not to be granted.

Ground Three

The trial Judge misdirected himself when he held that whether to grant or refuse an amendment depends on the stage of the case and that when the case has not been heard the Court can allow it so long as it does not overreach the parties.

Particulars of Errors

(1) The stage the case is at the time the amendment is proposed is only one of the issues to be considered in granting or refusing amendment. It is not the sole determinant.

(2) Where, as in this case, the amendment proposed introduces a new cause of action or facts which did not exist at the time the suit was taken out or radically changes the nature of the case, the stage the case had reached becomes irrelevant or pales into insignificance as an application for such amendment must fail.

(3) The trial Court admitted in its ruling that the proposed amendment was radical and fundamental.

(4) In such a situation the trial Court has no discretion in the matter as it is duty bound to refuse the amendment.

Ground Four

The Learned trial Judge erred in law when he adjourned the substantive amended originating summons to 28th May 2008 for hearing and directed the parties as to the period within which to file and exchange written addresses, without hearing and determining the Applicant’s Preliminary Objection.

Particulars of Errors

(1) On 18th March 2008 the Appellants filed a Preliminary Objection by way of a motion on notice challenging the competence of the Respondent’s suit on ground that mandatory statutory conditions precedent to the exercise of the trial Court’s jurisdiction had not been fulfilled.

(2) When the suit came up before the trial Judge on 21st April 2008 the trial Court ruled that it would hear the Respondent’s motion for amendment before hearing the Appellant’s Preliminary Objection and proceeded to hear the said motion and adjourned Ruling thereon to 28th April 2008.

(3) However, after delivering Ruling on the Respondent’s motion for amendment, which it granted, the trial Judge adjourned the case to 28th May 2008 for hearing of the substantive amended originating summons, without hearing or determining the Appellants’ Preliminary Objection.

(4) At no time did the trial Court order the consolidation of the Appellants’ Preliminary Objection with the substantive amended Originating Summons.”

A careful examination of Grounds 1, 2 & 3 of the Appellant’s grounds appeal shows that these grounds complained against the trial Judge’s application of well settled principles of law governing amendment to undisputed facts and/or failure of the Court to apply the principles. Where the lower Court applying the law to the facts, in the process which requires the skill of a trained lawyer, it is a question of law. Ground 3 of the Notice of appeal queries whether a Court has any discretion to grant an amendment where the amendment seeks to introduce facts which did not exist at the time the suit was taken out.

In my humble view, grounds 1, 2 & 3 complains about the misunderstanding by the lower Court of the law or a misapplication of the law to the undisputed fact therefore they are grounds of law.

On Ground 4, Learned Senior Counsel for the Respondent submitted that the said ground relates to proceedings which occurred outside the ruling allowing amendment of the Respondent’s originating summons. He went further that the ground did not arise from submission of counsel and the ruling of the Court.

The Learned Counsel for the Appellants contended that Ground 4 is also a ground of law.

A careful examination of the said Ground 4 showed that it is a complaint against the exercise of discretion by the lower Court. Adjournment is a matter of mixed law and facts requiring leave of either the High Court or the Court of Appeal.

In an interlocutory appeal where the ground of appeal is a challenge against the trial Court’s exercise of discretion, such a ground is a ground of mixed law and fact and leave of Court ought to be obtained before the ground of appeal and a fortiori the notice of appeal will be competent.

In the instant case the Appellants did not obtain either the leave of the Federal High Court or the Court of Appeal before the notice of appeal was filed. And failure to obtain leave will render any notice or grounds of appeal so filed as incompetent and therefore liable to be struck out.

In view of the foregoing since I have already held that Ground 1, 2 and 3 are grounds of law, the said grounds are competent but Ground 4 which is of mixed law and fact requiring leave of either the High Court or Court of Appeal which was not obtained is incompetent.

See – Olosunde vs. Eyialegan (supra)

Furthermore before I conclude on ground 4, it should be noted that Ground 4 along with its particulars relates to proceedings which occurred outside the ruling allowing the amendment of the Respondent’s Originating Summons. The ground of appeal did not arise from submission of counsel and ruling of the lower Court.

It is trite that ground of appeal against a decision must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision. Grounds of appeal are not formulated in abstract. Where a ground of appeal as in the instant case does not arise from or related to the judgment appealed against, it becomes incompetent and liable to be struck out. See the following cases:-

Mercantile Bank of Nig PLC vs. Nwobodo (Supra).

Government of Akwa Ibom State vs. Powercom Ltd (Supra)

In conclusion, the Preliminary Objection succeeded in part. Grounds 1, 2 and 3 of the Notice of Appeal is competent while Ground 4 which has been held to be incompetent is hereby struck out.

I will now go into the merit of the appeal.

The issues formulated by Learned Counsel on behalf of the parties are similar, However the issues set out on behalf of the Respondent are considered relevant and apt to determine this appeal.

ISSUE 1

Whether the Learned trial Judge acted within the law and properly on the peculiar facts of this case in granting the amendment.

Learned Counsel for the Appellants stated that the Respondent commenced his suit by way of Originating Summons. He went further that every originating summons must contain:-

(i) The question for determination or

(ii)The relief sought by the Plaintiff.

He referred to Order 7 Rule 3 of the Federal High Court (Civil Procedure) Rules 2000. He also stated that the Respondent sought to substitute the entire original reliefs with a fresh set of reliefs. He submitted that where an amendment involves several or many paragraphs of the originating process, an amendment should be refused because amendment is not the same as substitution. He relied on Akaniwon v. Nsirim (1997) 9 NWLR (Part 520) Page 255 at 281 Paragraph G – H; UBN Ltd v. Ogboh (1995) 2 NWLR Part 380 Page 647 at 657

Paragraph A.

Learned Counsel for the Appellants submitted that the application for amendment ought to have failed. He went further in his submission that an amendment will not be granted where it seeks to introduce a new cause of action which did not exist at the date of issue of the originating process. He relied on the following cases:-

Esin v. Matzen Timm (Nigeria) Ltd (1966) All NLR Page 227 at 229 – 230;

Eshelby vs. Federated European Bank Ltd (1932)1 K. B. 254;

Gowon vs. Ike-Okongwu (1994) 2 NWLR Part 326 Page 355 at Page 366, Paragraph B – C;

World Gate Ltd vs. Sebanjo (2000) 7 NWLR Part 654 Page 669;

Jessica Trading Co Ltd VS. Bendel Insurance Co. Ltd (1993) 1 NWLR Part 271 Page 538 at Page 547 Paragraph G – H;

Ojah VS. Ogboni (1976)All NLR (Reprint) Page 277 at Pages 282- 283;

England vs. Palma (1955) 14 W.A.C.A. Page 659 at Page 661.

He also submitted that the application for amendment is an attempt to introduce a new cause of action and re-inject life into the lifeless suit.

See Jessica Trading Co Ltd VS. Bendel Insurance Coy. (Supra)

He finally urged this Court to hold that the Court below was wrong in granting Respondent’s application for amendment.

The Learned Senior Counsel for the Respondent submitted that the submission of the Appellant’s Counsel that a completely new decision (cause of action) were substituted for the old is false and misleading. He stated that the general rule is that a Court would not refuse to allow an amendment simply because it introduces a new cause but it could refuse where such an amendment would result in a complete change of the action into one of a substantially different character.

He therefore urged that the appeal be dismissed.

An application for an amendment is a right of the parties to enable them present their case in the way it appears best to them once it does not occasion injustice to the other party.

See the following cases:-

UBN VS. Dafiaga (2000) 1 NWLR Part 640 at 175;

Stanley Aigbe and Another vs. Lucky Erhabo & Another (1998) 7 NWLR Part 557 Page 225.

It is settled law that a Respondent to an application for amendment has an uneasy task and unless he can establish prejudice, unnecessary expense, irreparable inconvenience or lack of good faith, the hands of the Courts are free to grant an amendment.

See:- Shell B.F. Co Ltd v. Jammal Engineering Nigeria Ltd (1974).4S.C. Page 33 at 74 -75;

Nicholas Gidi & others VS. Chief Daniel Egba (1999) 10 NWLR Part 621 Page 42 at 64 Paragraph D – F.

Although where an amendment of pleadings would lead to injustice of the case or surprise or embarrassment to the other party or the Applicant is acting malafide an amendment could be refused. Also where an amendment would change the nature of the case and consequently result to injustice it would be refused. See the following cases:-

Awachie v. Chime (1990) 5 NWLR Part 150 Page 302 at 308 – 309;

Okafor vs. Ikeanyi (1997) 3 – 4 S.C. Page 99 at 106;

Chief Djah vs Chief Ogboni (1976) 4 S.C. Page 69.

The relevant principle to guide a Court in considering whether to grant an application for amendment of pleadings was aptly stated by Bowen L. J. in Cropper vs. Smith (1884) 26 Chancery Division Page 700 at 710 as follows:-

“I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights…………….

I know of no kind of error or mistake which if not fraudulent or intended to overreach, the Court ought not correct, if it can be done without prejudice to the other party, Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy and I do not regard such amendment as a matter of favour or grace ……. It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to decision of the real matter in controversy, it is as much a matter of right on this part to have it corrected, if it can be done without injustice, as any thing else in the case is a matter of right.”

Also in Shell B. F. Coy Ltd VS. Jammal Engineering Ltd (Supra) the law on amendment was stated thus:-

“The rule for granting amendments of pleading or proceeding are very flexible and great deal depends on the direction of the Judge or Tribunal, where there has been no breach of any relevant rule of law in that respect a party opposing the grant of leave to amend such pleading or proceeding has a rather uneasy task and unless he can establish prejudice, unnecessary expense, irreparable inconvenience or lack of good faith, the hands of the Court are free.”

See also the following cases:-

Ibanga vs. Usinya (1982)5 S. C. Page 103 at 126 -127;

Okafor vs. Ikeanyi {Supra);

Oguntimehin v. Gubere (1964) 1 All NLR Page 176.

In the instant appeal, the case was initiated for interpretation of the Constitution and the Armed Forces Act 2004. The substance of the questions for determination and declaration relate to the Army Council meeting of 11th February 2008 and whether the decision arrived at was inconsistent with the provisions of the 1999 Constitution and the Armed Forces Act 2004.

According to the record of proceedings, on 6/3/2008 after the parties had appeared in the Court, the Appellants wrote a letter dated 6/3/08 which states: –

“(A) NA/226/MS/dated 11th February 2008.

(1) I am directed to draw your attention to Reference A above which did not convey the correct decision of the Army Council Meeting of 11th February 2008.

(2) In view of the above, you are please requested to disregard the content of Reference A.”

(See page 50 of the Record)

On 7th March 2008 the Respondent wrote to the Appellants wherein he requested for the correct decision of Council Meeting of 11th February 2008. (See page 56 of the Record)

On 14th March 2008, the Respondent received a letter from the Appellants which carried the correct decision of Army Council Meeting of 11th February 2008. (See pages 58 – 59 of the Record).

The affidavit in support of the Originating Summons both old and new clearly chronicled the scenario from 11th February 2008 to 14th March 2008 and all relate to the meeting of 11th February 2008.

The Appellants did not file any counter-affidavit to show that the decision contained in the letter of 14th March was not that of the 11th February 2008, or that it was a different decision, unconnected to the existing suit.

I therefore agree with the submission of Learned Senior Counsel for the Respondent that the submission of the Appellants that a completely new decision or cause of action were substituted for old is misleading and erroneous, The amendment proposed and granted in this case relates to the same meeting of Army Council of 11th February 2008. The letter written by the Appellants dated 14th March 2008 contained the correct decision taken by the Army Council at its meeting of 11th February 2008. There is no new cause of action.

When a matter has been started, the Court has, at all its stages until it is finally determined, most ample power of amendment if the facts sought to be pleaded are such as would enable issues to be properly joined between the parties on questions in controversy between them, and it is the duty of the Court to exercise those powers unless there is evidence of bad faith or such prejudice that cannot be compensated in cost.

See – Gowon vs. Ike Okangwu (2003) 6 NWLR Part 815 Page 38 at 48.

It is also the law that a trial Court would be within its power to grant an amendment even if to do so would be to add to the existing cause of action, provided that the addition of the new cause of action arose out of the same facts in respect of which the Plaintiff has already claimed relief.

See the following cases:-

Foka vs. Fako (1968) NMLR Page 441; Solanke vs. Shomefun (1974) 1 S. C. Page 141; A. U. Amadi vs. Thomas APLIN & Co Ltd (1972) 1 All NLR Part 1 Page 409.

In the final analysis it is my view that the Court below was right in granting the Respondent’s application for amendment because as I said earlier in this Judgment the amendment arose from the meeting of 11th February 2008 and it did not change the nature of the claims before the Court. The totality of the suit relates to the constitutionality or legality of meeting of the Army Council of 11th day of February 2008, and the decision taken therein.

This issue is therefore resolved in favour of the Respondent against the Appellants.

ISSUE 2

Whether the adjournment of the case for hearing after the ruling with the concurrence of the Appellant Counsel was wrongful exercise of discretion.

Learned Counsel for the Appellants stated that this issue was distilled from Ground 4 of the Notice of Appeal.

The Learned Counsel for the Appellants referred to the Preliminary Objection on behalf of the Appellants by way of a motion dated and filed on 18/3/08 in which he urged that the Respondent’s suit be struck out.

The quarrel of the Counsel for the Appellants was that after the ruling on application for amendment the lower Court rather than hearing the Appellants’ Preliminary Objection granted an application to file written argument for the Originating Summons and fixed a date for hearing the suit.

The Learned Counsel submitted that the lower Court was wrong in fixing the amended Originating Summons for hearing without first determining the merits of the Appellant’s Objection. He went further in his submission that a Court has no power to make an order or proceed with further proceedings in respect of a suit in which its jurisdiction to try the case has been challenged.

He relied on the following cases:-

Madukolu vs Nkemdilim (1962) 2 All NLR Page 581 at 589 – 590; Miscellaneous Offences Tribunal vs. Nwammiri Okoroafor (2001) 18 NWLR Part 745 Page.295 Paragraph H- B; The State vs. Onagoruwa (1992) 2 NWLR Part 221 Page 33 at 46 Paragraph C – E: Nigerian National Supply Co. Ltd vs. Alhaji Hamajoda Sabana & Co Ltd & others, (1986) 5 NWLR Part 40 Page 204 at 212 – 213 Paragraphs H – A; Magaji v. Matari (2000) 8 NWLR Part 670 Page 722 at 734; Abdulkadir v. Usman (2002) 8 NWLR Part 769 Page 396 at 410- 411; United Agro Ventures Ltd VS. F.C.M.B. ltd (1998) 4 NWLR Part 547 at Page 546 at 562.

The Leaned Senior Counsel for the Respondent on the other hand submitted that all arguments about jurisdiction are misconceived and mere entertainment. He went further that the learned trial Judge did not act contrary to any of the decided cases referred to.

It would be recalled that Ground 4 of the Notice of Appeal from which this issue was distilled had been struck out earlier in this Judgment for being incompetent, but even if Ground 4 is not struck out my simple response to this issue is that both the Appellants and the Respondent were represented by Counsel at the lower Court on the day the ruling was delivered. And it is on record that Counsel for the Respondent asked for leave of the Court to file written addresses in the amended originating summons and Counsel for the Appellants did not object to the application, he even asked for 21 days to reply. The Court by the concurrence of Counsel ordered written addresses and fixed the matter for hearing.

(See page 152 of the Record)

It should be noted that from the record of proceedings at the lower Court, the attention of the Learned Trial Judge was not drawn to any existing or pending application. Apart from that there is nothing to show that the Appellants’ Counsel applied to the Court to hear the pending application and such application was refused or that he was denied the right to move the application.

I therefore agree with the submission of Learned Senior Counsel for the Respondent that the Court has no duty to act as Counsel for the Appellants’ and the Appellants’ Counsel has the right to move the said application or abandon it.

It is trite that it is both fundamental and elementary principle in the adjudicatory process that where the jurisdiction of the Court or Judge is in issue in respect of a matter, that issue must be considered first and disposed of provided the attention of the trial Judge had been drawn to such an application.

In the view of the foregoing, it is my humble view that the adjournment of the case for hearing after the ruling with the concurrence of the Appellant’s Counsel was not a wrongful exercise of discretion by the lower Court.

This issue is therefore resolved in favour of the Respondent and against the Appellants.

In the final analysis, this appeal fails and it is hereby dismissed.

The Respondent is entitled to costs which is fixed at N35,000.00 (Thirty Five Thousand Naira) against the Appellants.

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Other Citations: (2009)LCN/3100(CA)