Chief Reuben. O. Ozigbo V. The Registered Trustees of Ezi-oganiru Social Club of Nigeria (2008)
LawGlobal-Hub Lead Judgment Report
DALHATU ADAMU, J.C.A.
This appeal is against the ruling of the High Court of Lagos State, Ikeja Judicial Division (Per K.O. Alogba J) delivered on 22nd day of December, 2004 in suit No. ID/319/1998. In the said ruling the learned trial judge refused to grant the appellants application (dated 10/3/04) seeking the following reliefs: –
“(1) Leave of this Honourable Court to amend the Statement of Defence dated 8th April, 1998.
(2) An order of this Han. Court deeming the Amended Statement of Defence and counter claim dated 24th February, 2004 as having been properly filed and served on the plaintiff /respondent herein.
(3) And for such further order or other orders as this Honourable Court may deem fit to make in the circumstances.
Being aggrieved by the trial Courts refusal to grant his above reliefs and the resultant dismissal of his application he appellant filed his present interlocutory appeal against its ruling in this Court. In his notice of Appeal dated 4/1/05, the appellant filed two (2) grounds of appeal (with their particulars). Out of his two grounds of appeal, the appellant in his brief of argument dated and filed in this Court (on 5/4/07) initially formulated three (3) issues for determination, which are not shown to be related to the grounds. However at the hearing of the appeal the appellant in his attempt to relate the issues to the grounds informed the Court of his abandonment or withdrawal of his 3rd and last issue for determination which was accordingly struck out by this Court on 14/4/08.
The surviving two issues of the appellant after the striking out of the 3rd issue are as follows: –
” A. whether having regard to the mandatory provision of order 19 rule 9 of the High Court of Lagos State (Civil Procedure) Rules 2004, the learned trial judge in the Court below denied the Defendant/appellant his right to fair hearing when he refused to grant the Defendant/Appellant leave to amend his statement of Defence and incorporate his counter-claim.
B. Whether it was proper for the learned trial judge in his ruling dated 22nd December, 2004 to make pronouncements on substantive issues before the Court below, based on the Defendant/Appellants interlocutory Application, amounting to prejudgment on substantive issues yet to be tried by the Court below.”
As stated above, the learned counsel for the appellant related his above reproduced two (2) surviving issues respectively to his two grounds of appeal. Thus issue A is said to be related to ground A while issue B is related to ground B of the notice of Appeal. It is pertinent also to observe at this stage that the learned Counsel for the appellant had applied to this Court before the hearing of the appeal for the appeal to be heard on the appellants brief alone due to the respondents failure to file the respondents brief of argument. The application was heard and granted on 6/3/08.
Consequently the appeal was heard on the appellant’s brief alone and without any brief by the respondent who did not file any. Under the rule of brief writing as applicabie to this Court and the Supreme Court, the respondents failure to file a brief, will make this Court to deem him as admitting the truth of every thing stated in the appellants brief in so far as such is borne out by the records. In other words it is not automatic for this Court to deem what is stated by the appellant (in his brief) as the truth by the constructive admission of the respondent. The appellant still has the duty or obligation to succeed or fail on his said brief vis a vis the confirmation of the facts from the records -see JOHN HOLT VENTURES LTD VS. OPUTA (1996) 9 NWLR (PT. 470) 101; ONYEJEKWE VS. THE NIGERIAN POLICE COUNCIL (1996) 7 NWLR (PT. 463) 704; WAZIRI VS. WAZIRI (1998) 1 NWLR (PT.533) 322; UBA PLC VS. AJILEYE (1999) 13 NWLR (PT.653) 116; AND UNITY BANK PLC VS. BOUARI (2008) 7 NWLR (PT. 1086) 372 AT 403 AND 408;
I now proceed to consider the submissions of the appellant under issue I in the light of the above principle on brief writing.
The appellants appeal in the present case is hinged on the refusal of the learned trial judge to grant him leave to amend his statement of defence. The motion seeking the amendment was filed on 10/3/2004 while the writ and the endorsed statement of claim were originally filed on 10/2/98. Thus the motion for amendment was brought by the defendant/appellant about six years after the original statement of claim sought to be amended see that judgment at page 35 and 36 of the record.
Moreover, the reason or ground for the proposed amendment as stated by the appellant in paragraph 2 (a) of the affidavit in support was because some new facts had emerged which necessitated the amendment in order to include a counter-claim and assert his ownership of the land in dispute contrary to his earlier admissions (in his original statement of defence) that the respondent was the true owner of the land to whom he (as a tenant) was paying rent. It is also pertinent as observed by the learned trial judge (at page 36 of the records) that the appellant in his application for leave to amend did not exhibit the proposed amended statement of defence and counter – claim. This was however later condoned by the learned trial judge who relied on the copy attached to the supporting affidavit.
The reason given by the learned trial judge for his refusal to grant the appellants application for amendment was that the said appellant by his proposed amendment was seeking to change the nature or character of his defence from his admission of liability in the case (as a tenant) to a claim of ownership of the property (by a third party) who was more entitled to the rent. The said reason is stated in the following finding by the learned trial judge: –
“This is where in my humble view I consider the proposed amendment not a correction or re-alignment of Defendants position in this case, but a complete turn – about and rescheduling, indeed a creation of a completely different position diametrically different and opposed to that which he had earlier taken in the matter; a fortiori the unfairness in the application.
To allow this amendment is to change the nature and character of the case before the court from a Landlord/Tenant matter to a dispute as to the title of the premises in issue” -see page 39 of the record. In resolving the appellant complain under Issue 1 as Highlighted above, and after my confirmation that the issues or points as highlighted above are borne by or from the records, it is necessary to relate them to the rules or principles for amendment of pleadings and to see whether the appellant was entitled to amend his statement of defence at the stage he brought his application which was refused by the learned trial judge and whether such a refusal amounted to a denial of his right to fair hearing as asserted in his brief of arguments.
The general rule is that a party to a suit may amend his pleadings before the close of pleadings without the requirement of any leave by or from the Court. The court also has an inherent or general power to allow either of its own motion or on the application of other of the parties, the amendment of pleadings in the action or suit at anytime or stage of the proceedings.In the present case, even though it is not stated that the application for amendment was made before the close of pleadings, or before the commencement of hearing that can be inferred from the judgment of the learned trial judge wherein he stated that the trial had not started or commenced when the appellant made his present application for amendment (see page 37 of the record). This is because a trial only starts or commences after the close of pleadings when issues are said to be joined. Thus from the record since there is no evidence to the contrary showing that the pleadings had been closed at the time or stage of the appellants motion for amendment he should be regarded as having the right to amend even without the leave of the trial Court. Even though the appellants application which was made pursuant to order 42 rules (1) and (2) presupposes that the trial had begun, such an application for leave to amend is usually readily and generously granted by the Court under the basic principle that it is for the purpose of presenting before the Court the real question or questions in controversy between the parties.
It is also settled that the duty of the Court is to decide the rights of the parties and not to punish them for the mistakes their counsel make in the conduct of their cases. The main consideration is to ensure that the proposed amendment is not fraudulent or intended to over reach or cause injustice to the other party. It is the duty of the Court or judge to see that everything is done to facilitate the hearing of an action pending before it or him and whenever it is possible to avoid any ambiguity or blunder in the circumstances of the case, or to expedite the hearing an amendment should be allowed on term as to costs against the erring or delinquent, party rather than to refuse or dismiss his application for amendment as done in the present case -see COLLINS VS. VESTRY OF PADDINGTON (1880) 5 QBD 368; COOPER VS. SMITH (1834) 26 CH. D 700; ADELEKE VS. AWOLIYI (1962) 1 ALL NLR 260; GOVT. OF MID WEST VS. MID-MOTORS (1977) 10 SC 43; AND NWANJI VS. COASTAL SERVICES (NIG) LTD (1999) 11 NWLR (PT. 628) 641 AT 659.
There are however circumstances where the Court will refuse an amendment. These include:
(a) where the proposed amendment will not avert the defect in the proceedings;
(b) where the amendment is not material but is an inconsistent or useless amendment;
(c) where at the close of the party’s case, the proposed amendment will necessitate the calling of fresh evidence;
(d) where a time limit for the presentation of the case is fixed (e.g an election petition) no amendment will be allowed introducing a fresh prayer;
(e) where an action instituted was a nullity ab initio (e.g. on behalf of a dead plaintiff) no amendment will be allowed to revive it (by substituting him with his living successor); so also where the limitation period has expired at the time of the action, there should be no amendment to backdate the cause of action -see ABASI VS. LABIYI (1958) WNLR 12; POPOHUNDA VS. OLUWASOLA (1999) 3 NWLR (PT. 596) 531; AND OYENUGA VS. PROVISIONAL COUNCIL OF THE UNIVERSITY OF IFE (1965) NWLR 349; and
(f) where the proposed amendment to pleadings will cause or entail injustice or injury to the other party, the Court will refuse it.
The main purpose or aim of an amendment is to prevent the manifest justice of the case from being delayed or defeated by the slips, mistakes or inadvertence of counsel for the litigant whose fault should not be visited on the litigant. The Courts have therefore been always liberal by their stand however negligent or careless or however late the proposed amendment is brought, it ought to be allowed if it will not cause injustice to the other party: The test for allowing or otherwise of a proposed amendment of pleading is whether the party applying can do so without placing the other party in a position which cannot be compensated or redressed by costs -see SHOE MACHINERY CO, VS. CUTLAN (1896) 26 CH.D 700; AMADI VS. THOMAS APLIN & CO. LTD (1972) 1 ALL NLR 176; ADEKEYE VS. AKIN OLUGBADE (1987) 6 SC 268; AND AKANLAWO VS. NSIRIM (2008) ALL FWLR (PT. 410) 610 AT 646 – 647.
The factors taken into account by the Court in its consideration on whether or not to grant an application for amendment of pleadings are:
(1) The attitude of the party.
(2) The nature of the amendment sought in relation to the suit.
(3) The question in controversy in the suit; and
(4) The time when the amendment was being sought.
In the present case the only reason given by the learned trial judge for his refusal of the proposed amendment applied for by the appellant was because he was making a case different from his earlier defence whereby after admitting the respondent’s ownership of the land in dispute to whom he was paying rent as a tenant, he is now asserting (in his new defence and counter-claim) that the said respondent is not the true owner of the said land for which a 3rd party is claiming to be paid not only the current and subsequent rents but also to be refunded the earlier rents paid to the said respondent by the appellant.
I agree with the appellants brief that the proposed amendment was not only material but was aimed at bringing or presenting before the trial court the real question or question in controversy between the parties to the dispute. Since the amendment was sought or applied for at a stage before the trial, the learned trial judge should have allowed it in accordance with the above considered principles under the liberal and generous approach of the Courts to such an application at a stage that it was made before the close of pleadings or before the trial which should have been as a matter of course but only on term as to costs.
It is trite that no pleading, which is not a petition or summon shall, except by way of an amendment, raise any new ground of claim or contain any allegation of fact, which is inconsistent with the previous pleadings of the party. The appellant in the instant case who intended to raise a counter-claim which was inconsistent which his earlier defence was therefore right in taking steps to amend his said previous pleadings (i.e. his previous statement of defence) as is the mandatory requirement of the provision under both orders 19 rule 9 of the High Court of Lagos State (Civil Procedure) Rules 1994 and order 17 Rule 6 of the High Court of Lagos State (Civil Procedure) Rules 2004 – both relating to a defendant wishing to rely on a counter-claim or set up -see OBOT VS. CBN (1993) 8 NWLR (PT. 310) 140; AKEREDOLU VS. AKINREMI (1989) 3 NWLR (PT. 104) 164 AND HK & F VS. AJIBAWO (2008) 7 NWLR (PT. 1087) 511 AT 530.
It is pertinent to observe and emphasize that in the present case, the amendment sought by the appellant at the trial court was before hearing or before the pleadings or evidence were closed. Consequently, it is the type of amendment for which no leave is required. Even though the appellants counsel under a mistaken belief that it was required applied for leave, the learned trial judge was not justified in his refusal to grant it and in dismissing the said application. Under the circumstances the proper thing to do was for the learned trial judge to draw the attention of the learned counsel for the applicant (appellant) who could have withdrawn the application or if he fails to do so, it could be struck out as a supplausage or a misconceived application. In any case, the proposed amendment should have been allowed in the interest of justice and as of right at the stage it was sought or made – see FAGBULE VS. RODRIGUES (2002) 7 NWLR (PT. 765.) 188; ARO VS. BABAYEMI (2004) FWLR (PT.204) 60; AND OMAYE VS. OMAGU (2008) 7 NWLR (PT.1087) 477 AT 500 -501.
Since the learned trial judge was in error in his refusal or dismissal of the appellants application this Court as an appellate Court can interfere in his exercise of discretion which was not done judicially or judiciously, We have seen from the record that the application was made or an early stage before the close of both pleadings and evidence and should have been made as of right or allowed but it was wrongly refused or dismissed. In my final consideration of issue A of the appellants brief, the said issue should be answered in the affirmative and be resolved (together with its corresponding ground of appeal) in favour of the appellant. Accordingly, I hereby hold that by his refusal or dismissal of the appellant’s application for amendment of the statement of defence and counter-claim, the learned trial judge had denied the said appellant his right to fair hearing as enshrined in the 1999 constitution (section 36 thereof) and enjoined by the concept of natural justice (audi alteram partem).
The principle of fair hearing is a fundamental principle in the administration of justice, the breach of which renders any proceeding a nullity. It does not matter if the result of the proceedings would have been the same if the principle had been observed -see ADIGUN VS. ATTORNEY -GENERAL OYO STATE (1987) 1 NWLR (PT53) 678; AKINFE VS STATE (1988) 3 NWLR (PT. 85) 729; NTUKIDEM VS. OKO (1986) 5 NWLR (PT.45) 909; UBN VS.NWAOKOLO (1995) 6 NWLR (PT.400) 127 AT 150; CEEKAY TRADER LTD VS. GENERAL MOTORS CO. LTD (1992) 2 NWLR (PT.222) 132; AND YUSUF VS. ILORI (2008) 6 NWLR (PT.1083) 330 AT 351-352.
It is also trite that where a party is denied the opportunity of presenting or defending his case before the Court or Tribunal or even an administrative body under taking a quasi judicial function, that is or amounts to a breach of his right to fair hearing under both the constitutional provision (supra) and the rule of natural justice -see EKUFO VS. CHIEF BOMOR (1997) 9 NWLR (PT.519) 1 AT 10; AND SALU VS. MADAM EGEIBOR (1994) 6 NWLR (PT.348) 23 AT 44.
Consequently, the ruling of the learned trial judge which was in breach of the appellants right to fair hearing and in breach of the provision of order 24 rule 1 of the High Court of Lagos State (Civil Procedure) Rule 2004 should be declared or treated as a nullity. If this is so, then there is nothing to be set aside as urged by the learned counsel for the appellant. Rather, the proper thing to do when a proceeding is treated or regarded as a nullity is to strike it out just as in the case where it was conducted in absence of jurisdiction. Accordingly, the ruling of the learned trial judge dated 22/12/2004 is hereby struck out.
With my above resolution and decision on issue ‘A’ of the appellant, there is no longer any need to consider the 2nd issue of the appellants brief (i.e. issue ‘B’) which has consequently been overtaken and subsumed under issue ‘A’.
Since the proceeding has been held to be conducted in breach of the rule of fair hearing and natural justice and therefore a nullity (however well conducted it might have been) under the 1st issue, my consideration of the 2nd issue complaining about the pre-emption or prejudgment of the issues or questions in the main suit at an interlocutory stage by the learned trial judge will be an exercise in futility and a mere academic exercise which should be avoided by this Court. It suffices to hold that since there in no reply to the appellant’s submission under the issue, the respondent should be regarded as having conceded to the appellants submission under the issue which are also borne by the record (as quoted from the judgment of the learned trial judge), the 2nd issue is therefore also resolved in favour of the appellant.
On the whole having resolved the two issues in favour of the appellant his appeal has succeeded and is hereby allowed. As earlier stated the ruling of the learned trial judge (of 22/12/2004) is hereby struck out.
It is also hereby ordered that the case should be remitted to the Chief Judge of Lagos State for its re-assignment to another judge of the same jurisdiction for a fresh trial de novo and with the filing of fresh pleadings. The appellant is entitled to costs, which is assessed at 10130,000.00 and hereby awarded in his favour against the respondent.
Other Citations: (2008)LCN/2829(CA)
