Edith Ogbuli & Anor V. Aniemena Ogbuli & Anor (2007)
LawGlobal-Hub Lead Judgment Report
BADA, J.C.A.
This is an appeal against the ruling of High Court of Anambra State holden at Onitsha in suit No. 0/14/97 Aniemena Ogbuli & 1 other (for themselves and on behalf of Ogbuli Nwawulu family Ogboli-Eke Onitsha) v. Edith Ogbuli & 1 Other. In the said ruling delivered on the 13th day of January, 2006, the learned trial Judge after hearing the application for amendment of statement of defence by the defendants now appellants refused it on the grounds that:
(1) the amendment if granted would overreach the plaintiffs.
(2) the amendment was not to bring evidence in line with pleadings.
(3) the amendment sought to plead new facts.
Dissatisfied with the said ruling the appellants now appealed to this Courts.
The learned counsel for the appellants formulated only one issue for determination as follows:-
“Whether the learned trial Judge was right in dismissing the appellants’ application for amendment.”
The learned counsel for the respondents on the other hand also formulated one issue for determination as follows:
“Whether the learned trial Judge was right in dismissing the respondents’ (sic) application for amendment of the statement of defence, having regard to all the circumstances of the case.”
At the hearing learned counsel for both parties adopted and relied on their respective briefs of argument.
The learned counsel for the respondents raised preliminary objection that the two grounds of appeal are incompetent.
The grounds upon which he based the objection are:
(1) Both grounds of appeal offend against Order 3 rule 2 of the Court of Appeal Rules in that they are devoid of the particulars and the nature of the error in law alleged.
(2) The alleged particulars of error in law are vague or general in terms and were argument and narrative and disclose no reasonable grounds of appeal.
He relied on Order 3 rules 2(2), 2(3), 2(4), 2(7) and 15(1) of the Court of Appeal Rules and he urged that the two grounds of appeal be struck out on ground of incompetence.
The learned counsel for the respondent formulated one issue for determination in this preliminary objection as follows:-
“Whether the particulars of error of law disclosed on both grounds of appeal show clearly the nature of the law which is complained of.”
Learned counsel for the respondents contended that the specific nature and particulars of errors of law committed by the trial Judge which could give the respondents a clear picture of what to tackle at the hearing of this appeal was not stated.
He submitted that the alleged particulars are in the main statement of alleged facts of legal arguments and are vague and do not disclose reasonable grounds of appeal. He referred to the following cases:-
– Bereyin v. Gbobo (1989) 1 NWLR (Pt. 97) 372.
– Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718, (1987) 12 SC page 14.
– Incar (Nig.) Ltd. v. Bolex Enter. Ltd. (1996) 6 NWLR (Pt. 454) page 318,
– F.B.N. Plc v. Obiechina Ejikeme & Sons (1994) 4 NWLR (Pt. 340) 583.
In answer to the preliminary objection, learned counsel for the appellant submitted that the said objection by the respondent lacks merit and should therefore be dismissed.
He went further that the issue before this court is whether the grounds of appeal formulated by the appellants are competent in law.
He relied on the case of National Bank of (Nig.) Ltd. v. Opeola (1994) 1 NWLR (Pt. 319) page 126 at 132.
In order to appreciate the objection, it would be necessary to set out the said Order 3 rule 2(1) – (4) of the Court of Appeal Rules being relied upon vis-‘a-vis the grounds of appeal.
“2(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called the notice of appeal) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal which shall be accompanied by a sufficient number of copies for service on all such parties: and it shall also have endorsed on it an address for service.
(2) If the grounds of appeal allege misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.
(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
(4) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of the evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court of its own motion or on application by the respondent”
“Grounds of Appeal
(A) Error in law
The learned trial Judge erred in law by dismissing the appellants’ application for amendment.
Particulars of error
(i) The proposed amendment being the soul or plank of the appellants’ case is consistent with the case of the appellants is not only known to the respondents but equally traversed by them in the course of the evidence of the 2nd plaintiff.
(ii) The ruling of the learned trial Judge did not demonstrate a logical and dispassionate consideration of the appellants’ case that the amendment was merely to fully expose the issues in controversy before the Court.
(iii) That the said amendment will neither spring any surprise nor overreach the respondents as erroneously found by the learned trial Judge.
(iv) That by refusing the amendment, the learned trial Judge painfully shut out the appellants from presenting their defence which infringed on their constitutional right to fair hearing.
(v) The learned trial Judge shirked his constitutional responsibility of adjudicating on the rights of the appellants by refusing the amendment and holding that the amendment will occasion the re-opening of the respondents’ case, an option that should have been embraced by the learned trial Judge in the interest of justice.
(B) Error in law
The learned trial Judge erred in law by dismissing certain aspects of the appellants’ amendment as inconsequential.
Particulars of error
(i) It is settled law that it is counsel who knows his client’s case better than the court which lacks the jurisdiction to interfere by pronouncing on the proposed amendment that were not opposed by the respondent.
(ii) The learned trial Judge prejudged the case of the appellants by dismissing the aspects of the proposed amendment as inconsequential, which violates their constitutional right to fair hearing.
(iii) The learned trial Judge was bound to grant the amendments that were unopposed by the respondents as refusal of same amounted to a descent into the conflict of the parties which the law forbids him.
(iv) The fact that the said amendment reflected the evidence on record rendered them genuine and material for the purposes of the appellant’s case which the learned trial judge misconstrued.”
There have been a number of decisions on the interpretation placed on Order 3 rule 2(1) – (4) of the Court of Appeal Rules. In National Bank of Nigeria Ltd. v. Opeola (supra) at 137 Tobi, J.C.A. (as he then was) has this to say:-
“It is elementary law that generally where an appellant files a ground of appeal, alleging misdirection or error in law, he must supply the particulars relied upon. See Olawuyi v. Adeyemi (1990) 4 NWLR (Pt. 147) page 746. The basis for this requirement in Order 3 rule 2(2) of the Court of Appeal Rules, 1981 as amended, is to give sufficient notice to the court and the respondent of the specific particulars of error relied upon by the appellant. By this, the respondent will be in a better position to prepare a reply in his brief. That will also prepare the mind of the appellate court before the hearing of the appeal. In United Bank for Africa Ltd. v. Mrs. Achoru (1990) 6 NWLR (Pt. 156) page 254, Karibi-Whyte, J.S.C. said at page 283:-
‘The purpose of Order 3 rule 2(2) is to inform the court and the respondent of the particulars of error alleged to enable the respondent meet the case of the appellant and the court to determine the nature of the error complained about.’
See also Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) page 267 at 282:
Breach of Order 3 rule 2(2) generally results in the striking out of the ground. See:- Anyaoke & Ors. v. Adi & Ors. (No.2) (1986) 3 NWLR (Pt. 31) 731 at 741.
Although Order 3 rule 2(2) provides for the mandatory ‘shall’, it is not every breach of the rule that can result in the sanction of striking out the ground. For instance, where the ground of appeal itself gives adequate or sufficient information as to the nature or content of the error of law complained of, a Court of Appeal will not strike out the ground of appeal on the only ground that particulars were not separately supplied. In other words, where a ground of appeal performs the dual role of setting out the ground simpliciter as well as stating the particulars thereof in such a way that both the court and the respondent are not misled, a Court of Appeal will be reluctant to strike out the ground.”
In the case of Atuyeye & Ors. v. Ashamu (supra) particularly at page 279 Oputa, J.S.C. put it succinctly what is required of a ground of appeal alleging misdirection or error of law as follows:
“Any ground of appeal alleging misdirection or an error in law must in addition to quoting the passage where the misdirection or error was alleged to have occurred specify the nature of the error and give full and substantial particulars of the alleged error or misdirection. It is not enough to merely allege an error or misdirection.”
See also the cases of:
– Faleye v. Otapo (1987) 4 NWLR (Pt. 64) page 186.
– Silencer & Exhaust Pipes Co. Ltd. v. Farah (1998) 12NWLR (Pt. 579) page 624.
Also in the case of Lucas Pharmaceutical Chemist Ltd. v. Roche (Nig.) Ltd. (1995) 1 NWLR (Pt. 369) page 28 at 35-36.
Mahmud Mohamed, J.C.A. gave the conditions for the validity of a ground of appeal alleging error or misdirection in law as follows: “It is trite that under Order 3 rule 2(2) of the Court of Appeal Rules, 1981, a ground of appeal which alleges an error or misdirection in law, to be a valid ground of appeal must comply with the following 3 conditions:-
(a) quote a passage in the judgment where the misdirection or error in law is alleged to have occurred;
(b) specify the nature of the error in law, or misdirection; and,
(c) give full substantial particulars of the alleged error or misdirection.”
See Amadi v. Okoli (1977) 7 SC 57.
The effect of non-compliance with the provisions of Order 3 rule 2(2) & (3) of the Court of Appeal Rules, 2002 was also considered in the case of:
– Okwumodi v. Sowunmi (2004) 2 NWLR (Pt. 856) page 1.
In view of the foregoing, it is clear that a ground of appeal alleging error or misdirection must not only quote a passage in the judgment where the error or misdirection is alleged to have occurred: it must specify the nature of the error or misdirection and give full particulars thereof. The particulars are not to contain only argument or narrative.
A perusal of the grounds of appeal set out earlier in this judgment showed that the particulars to ground 1 and ground 2 along with its particulars did not quote the error of law or misdirection alleged from the judgment of the lower court. The particulars contained argument intended to be relied upon and not true or real particulars of the alleged errors. In the circumstance, the particulars to ground 1 and ground 2 along with its particulars are therefore incompetent and are accordingly struck out. It follows that the issues formulated on ground 2 is also incompetent and it is hereby struck out.
I am now left with ground 1 which is without particulars.
In National Bank of Nigeria Ltd. v. Opeola (supra) it was held among others that it is not every breach of the rule that can result in the sanction of striking out the ground, especially where the ground of appeal itself gives adequate or sufficient information as to the nature or content of the error of law complained of, a Court of Appeal will not strike out the ground of appeal on the only ground that the particulars were not separately supplied.
In the instant appeal, the way ground 1 was framed showed clearly the nature of the complaint being made against the ruling of the lower court therefore the said ground is competent.
My view on ground 1 as stated above is fortified by the case of Ayua v. Adasu & Ors. (1992) 3 NWLR (Pt. 231) page 598 where Akanbi, JCA (as he then was) at page 612 stated as follows:
“I have deliberately delayed making any comment on the objection raised with regard to the competence of some of the grounds of appeal. I am satisfied that the grounds are generally competent for where no particulars have been separately set out; they have been embedded in the ground as filed. Particulars of grounds of appeal may be set out separately and distinctly or they may be in-built. What is important is the need to frame the ground in such a way that the respondent and the court may be able to appreciate the nature and purport of the complaint being made against the judgment being appealed against and so prevent an element of surprise.”
In view of the foregoing, the preliminary objection fails and it is hereby dismissed.
In determining this appeal, I think it will suffice to consider the sole issue formulated in the appellant’s brief of argument in view of the fact that issues formulated on behalf of the parties are similar.
The learned counsel for the appellant submitted that an application for an amendment is rights 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. He referred to the following cases:
– Cropper v. Smith (1884) 26 Ch. D. page 700 at 710.
– U.B.N. Plc v. Dafiaga (2000) 1 NWLR (Pt. 640) at 175.
– Stanley Aigibe and another v. Lucky Erhabor (1998) 7 NWLR (Pt. 557) page 255.
He also referred to the proposed amendment on pages 27-32 of the record of appeal.
He also submitted that, 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 court are free. He referred to the following cases:
– Shell B.P. Co. Ltd. v. Jammal Engineering Nigeria Ltd. (1974) 4 S.C. page 33 at 74 to 75.
– Nicholas Ogidi & Others v. Chief Daniel Egba (1999) 10
NWLR (Pt 621) page 42 at 64 paragraphs D-F.
The learned counsel for the respondent on the other hand urged that this appeal be dismissed.
He submitted that 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 mala fide 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. He referred to the following cases:
– Awachie v. Chime (1990) 5 NWLR (Pt. 150) page 302 at 308-309.
– Okafor v. Ikeanyi (1979) 3 – 4 S.C. page 99 at 106.
– Chief Ojah v. Chief Ogboni (1976) 4 S.C. page 69.
– England v. Palmer (1955) 14 WACA page 659.
– In George v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117, (1963) N.S.C.C. page 54.
The relevant principle to guide a court in considering whether to grant an application for amendment of pleadings was aptly expressed by Bowen, L. J. in Cropper v. Smith (supra) when he said:
“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 to correct, if it can be done without injustice 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 of 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 his pan to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.”
Also in Shell B. P. Coy. Ltd. v. Jammal Engineering Nigeria Ltd. (supra) the law on amendment was stated thus:
‘The rules for granting amendments of pleadings or proceedings are very flexible and a great deal depends on the discretion 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 pleadings or proceedings 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 -Oguntimehin v. Gubere (1964) 1 All NLR page 176.
– Okafor v. Ikeanyi (supra)
– Ibanga v. Usanga (1982) 5 SC page 103 at 126-127.
In the instant case, the issue of ownership of the land in dispute is in controversy between the appellants and the respondents.
The respondents who were the plaintiffs at the lower court maintained that the land in dispute is a communal property of Ogbuli Nwawulu Family while the appellants who were the Defendants stated that the land in dispute lost its communal character when the ancestor of the parties Ogbuli Nwawulu granted same to Mmayike Nwogwugwu his son who was succeeded by his son Ojinnaka Stephen Ubaka Ogbuli and who in turn was succeeded by the 2nd appellant. For example many paragraphs of the proposed amendments contrary to the stance of the respondents and the lower court neither sprung a surprise nor overreached the respondents’ case. The issue in controversy is whether the area in dispute is a communal property as canvassed by the respondent or it is not. The appellant on the other hand maintained that the land is not a communal property but rather their own estate,
In my own humble view even though the appellants proposed to amend quite a number of the paragraphs of the statement of defenee the proposed amendments are consistent with the case of the appellants as far as the root of title and acts of user by their predecessors in title are concerned, It could therefore not be said that the proposed amendment would overreach the respondents. I do not see any breach of rule of law that would disentitle the trial Judge in exercising his discretion in favour of the appellants in that matter.
It has been decided in a number of cases that an application for amendment of pleading can be granted at any stage of the proceeding to enable the trial court to determine the real issue or question in controversy between the parties.
See – Okafor v. Ikeanyi & Ors. (supra)
– Felix Akaneme v. Ozoemena (1993) 2 NWLR (Pt. 275) page 345 at 354 – 355.
– Amadi & Ors. v. M. Olumati & Ors. (1995) 7 NWLR (Pt. 410) at 739, 741-744 and at 753-754,
– First Bank of Nigeria Plc. v. Obande Obeya (1998) 2 NWLR (Pt. 537) page 205 at 217-219.
Furthermore, as could be gleaned from the record of appeal there is already an amended statement of claim and the respondents have just closed their case, the appellants are yet to open their defence. That being the case nothing stops the lower court from granting the appellants application for amendment since the respondents are still at the stage where they can further amend their amended statement of claim, recall any of their witnesses and thereafter call further evidence if they so desire it before the appellants are called upon for their defence.
Also the lower court could have awarded costs in favour of the respondents if it had granted the said amendment. It should be home in mind that a court of law is expected to hold the scale of justice evenly as an unbiased umpire whose jurisdiction is to evaluate the evidence presented from both sides of the legal divide.
Therefore granting the application could not have occasioned any prejudice or injustice to the respondents.
Consequently, it is my view that the lower court did not consider the material facts before it and therefore failed to exercise its discretion judiciously and judicially when it refused the application for amendment brought by the appellants. The lower Court ought to have granted the amendment.
In the result, this appeal succeeds and it is allowed. I hereby set aside the ruling of Nweze, J. delivered on 13th day of January, 2006. The amendment sought is hereby granted in terms of the application.
Since parties in this appeal are members of the same family it is advisable for them to seek an amicable settlement of their dispute. It is never too late. In the circumstance I will not make any order as to costs.
Other Citations: (2007)LCN/2381(CA)
