Engr. Samuel Melifonwu V. Chief Alexander Ilukwe Egbunike & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

TOBI, J.C.A.

By a motion dated 6th April, 1994, the appellant asked for the amendment of paragraph 10 of the statement of claim in order to introduce a plan prepared for the plaintiff by the Survey-General:

“(i) Introduce a plan prepared for the plaintiff by the Surveyor-General of Anambra State using plan No. MEC/403A/67 as shown on the land physically and showing the exact location of the appellant’s house that was destroyed and looted.

(ii) Plead and establish that in another suit, suit No. 0/358/83 taken out by one Nnamdi Iwenofu against the respondents, in which a plan No. MEC/2774/83 was tendered, that the said Nnamdi Iwenofu won the case when the respondents settled with him and paid him. That this land and property for which the respondents paid was located in the Isiokwe land as that of the appellant.

(iii) Emphasise that the issue in the suit was not one of boundary which had been determined but of actual trespass and destruction of the appellant’s property within the Isiokwe land.”

The motion was supported by an affidavit of 24 paragraphs. The respondent filed a counter-affidavit of 11 paragraphs which he named “Affidavit of Ben Ntephe in opposition to the Motion for Amendment.” After hearing counsel on both sides, the learned trial Judge refused the motion. He said at page 61 of the record:

“I am of the considered view that in all the facts averred in the affidavit of Mr. Ben Ntephe in opposition to the motion on notice for leave to amend plaintiff’s pleadings, applicant’s current application must be refused and is hereby refused for the reasons set out specifically in paragraphs 5, 6, 7, 8, 9 and 10 of Mr. Ntephe’s affidavit aforesaid. I am satisfied that the issue sought to be canvassed in the application of the plaintiff raises the issue of Res Judicata and Issue Estoppel- including its doctrine of standing by against plaintiff in the suit. In stating as I do, I am not unmindful of the fact that the issue of ownership of Owelle-Ebo land was fully conveyed and delivered in Suit Nos. 0/28/72 – SC/11/82, suit No. 0/107/85 and suit No. 461/85 between the Umuezearoli family and the Isiokwe family of Onitsha. It is my considered view that for the foregoing reasons the current application of the plaintiff seeking an order of this court for leave to amend paragraph 10 of plaintiff/applicant’s statement of claim is hereby refused. The motion is accordingly dismissed.”

Dissatisfied with the ruling, the appellant filed an appeal in this court. He filed his brief on 15th May, 1998. The respondents did not file their brief. By a motion dated 1st February, 1999 and filed on 5th February, 1999, this court ordered that the appeal be heard on the appellant’s brief. The appellant filed the following single issue for determination:

“Was the decision of the learned trial Judge in dismissing the application by the applicant for leave to amend paragraph 10 of his statement of claim a proper exercise of discretion at the stage of the proceedings when it was done on the purported ground of res judicata?”

Learned counsel for the appellant, Mr. A. O. Amene submitted that trial and appellate courts have the power to grant leave to amend pleadings. Although it is a subject of judicial discretion which must be exercised judicially and judiciously, the principles have been so well established and settled by many court decisions of both the Court of Appeal and the Supreme Court, learned counsel contended. He cited Alhaji Laguro and Another v. Toku (Bale of Itoga) and Another (1992) 2 NWLR (Pt. 223) 278; Jessica Trading Co. Ltd. v. Bendel Insurance Co. Ltd. (1993) 1 NWLR (Pt. 271) 538 and Anie v. Ugagbe (1995) 6 NWLR (PT. 402) 425.

On res judicata, learned counsel maintained that it is settled law that for a plea to arise three factors must be present: (i) the parties in the earlier case must be the same. This includes privies in law; (ii) the subject matter of the two suits must be the same; (iii) the issues in the previous case and those in the action must also be the same. He cited Alhaji Oloriegbe v. Omotesho (1993) 1 NWLR (Pt.270) 386 and Effiong v. Ironbar (2000) 3 NWLR (pt.650) 545 at 555.

Where a defendant by a motion prays the court to dismiss the plaintiff’s action in limine on the ground that the matter is res judicata, what the court is to determine at that stage is not whether the plaintiff could succeed in any or all of his claims against the defendant but whether there have been previous decisions of courts of competent jurisdiction in respect of the subject matter now in dispute which would bar the plaintiff from raising his present claims, learned counsel contended. He cited once again Oloriegbe v. Omotesho (supra).

Learned counsel posited that a party who raises the plea of res judicata must show that (i) the instant suit seeks to raise a new question or questions already finally and validly decided (or implicit in such a decision) by a court of competent jurisdiction; (ii) the decision in the previous suit was between the same parties or their privies (or conclusive in rem); (iii) the decision in the previous suit was in respect of the same subject matter and on the same issue. Learned counsel submitted that once it is found that all the three conditions co-exist the question in litigation is caught by estoppel per rem judicatam and that will be the end of the matter.

When an issue of res judicata is raised by the defence in limine consideration will be limited, where the previous case was decided in a court where pleadings were filed, to the pleadings and the judgment in that previous case will be compared with the pleadings in the case in hand, counsel submitted, he cited Ibero and Another v. Ume Ohana (1993) 2 NWLR (pt.277) 510. Learned counsel repeated himself on the issue of res judicata at pages 11, 12, 13 and 14 of his brief. I do not think I can afford to repeat the arguments here.

On abuse of process of court, learned counsel referred the court to Chief Sodipo v. Lemminkainen (1992) 3 NWLR (pt.259)…; Okafor v. A.G., Anambra State (1991) 6 NWLR (pt. 200) 659; Ibe v. Ahmed (1992) 4 NWLR (pt.235) 311 and Nigerian Airways v. Gbajumo (1992) 5 NWLR (Pt.244) 735 without developing the principles of law vis-a-vis the ruling of the court in his brief.

Under the heading of “some general principles” at page 7 of the brief, learned counsel took some issues randomly, including jurisdiction, identification of land, the exercise of discretion by a Judge, res judicata, a shield and not a weapon of offence, the consideration of pleadings by a court of law. He cited a number of cases.

Learned counsel submitted that the learned trial Judge did not properly appreciate the substance of the appellant’s case and therefore arrived at a wrong conclusion having misdirected himself on the facts and the affidavit evidence before him. He called the attention of the court to specific paragraphs of the affidavit in support and urged the court to allow the appeal. He further urged the court to exercise its jurisdiction under section 16 of the Court of Appeal Act and grant the application for amendment of the statement of claim.

It is trite law that a court is bound to grant application for amendment of pleadings for the purpose of determining the real question or questions in controversy between the parties. See Amadi v. Aplin (1972) 4 SC 228; Ojah v. Ogboni (1976) 4 SC 66; Okeowo v. Migliore (1979) 11 SC 138; Adetutu v. Aderohunmu (1984) 1 SCNLR 515.

A court of law will grant application for amendment of pleadings at any time in the proceedings before judgment if it is in the interest of justice to do so. See Okafor v. Ikeanyi (1979) 3-4 SC 99; Adeagbo v. Yusuf (1993) 6 NWLR (pt.301) 623. As a matter of law, there is no stage in the proceedings where a court will not grant an application for amendment if the justice of the case demands.

An application for amendment of pleadings calls for the exercise of the court’s discretionary powers which must be applied judiciously and judicially. An appellate court will intervene where it is shown that the trial court did not exercise its discretion properly. See Shell B.P. v. Jammal Engineering (1974) 4 SC 23; (1974) 1 – 11 NLR (pt.1) 543.

In this appeal, the learned trial Judge refused the application for amendment on the ground that the issue sought to be canvassed raised the issue of res judicata. I think the Judge was in some hurry. He read so much meaning into the rather innocuous application aimed essentially at assisting the court in the due process of doing justice in the case. It is not the function of a Judge to anticipate the parties in litigation and make orders which are really anticipatory in nature or in content.

I will not take the issue of res judicata here because it does not arise at this stage of the proceedings. Although both the learned trial Judge and learned counsel for the appellant freely moved in and out of the equitable doctrine, I shall refrain from following them. And so I stop here on the doctrine.

Learned counsel has urged this court to invoke its section 16 jurisdiction to grant the application which the trial Judge refused. This court has the jurisdiction to do so in appropriate cases. Is this an appropriate case? I think so.

In Chief Adekeye and Others v. Akin-Olugbade (1987) 3 NWLR (pt.60) 214, the plaintiff brought an application in the Court of Appeal for the amendment of his claims. This was granted. The defendants appealed. The Supreme Court held that the amendment of the plaintiff’s claim in the Court of Appeal to reflect a fact already found by the trial court is proper since such amendment could not possibly be said to have prejudiced the fair trial of the case neither could it have caused any surprise, injury or embarrassment to the other party. On section 16, Oputa, JSC, said at page 224:

“I am very sure that if the amendment granted by the Court of Appeal were applied for in the trial court, it would also have been granted. Section 16 of the Court of Appeal Act No. 43 of 1976 allows the Court of Appeal to … have full jurisdiction over the whole proceedings as if the proceedings have been instituted in the Court of Appeal as a court of first instance. Any court of first instance would grant this innocuous amendment.”

In Adepoju v. Oke (1990) 7 NWLR (Pt.164) 643, the Court of Appeal granted an application for the amendment of the statement of claim on the ground that “the proposed amendment has been raised in the course of the trial by evidence adduced by DW4” and that it will not entail injustice to the appellant. See also Igbe v. New Nigerian Bank Limited (1991) 3 NWLR (pt.178) 233; Co-operative Bank Ltd. and Others v. Eboigbe (1992) 4 NWLR (Pt.238) 684. In the exercise of the section 16 jurisdiction of this court, I grant the application to amend paragraph 10 of the statement of claim of the plaintiff who is the appellant in this court.

Learned counsel for the appellant raised some issues which were not part of the ruling of the learned trial Judge. That is not correct. An appellant should confine himself to either the judgment or the ruling of the lower court. He cannot make up issues not dealt with in the decision of the court in the guise of submission. In other words, an appellant has no business with issue or issues not dealt with in the decision of the court. For instance, learned counsel raised the issue of abuse of process of court and cited cases in support when the trial Judge did not at all get near there. An appellant who raises issues not dealt with in the decision of the lower court is a busybody and a court of appeal will so treat him. I will therefore not examine the issues raised by counsel for the appellant which are outside the ruling of the trial Judge.

In sum this appeal succeeds. The 11th May, 1994 ruling of the trial Judge is hereby set aside. I grant the application for amendment of paragraph 10 of the statement of claim. It is hereby ordered that the matter be sent back to the Chief Judge of Anambra State for trial by another Judge. After all, the Judge has also retired from the bench. I award N3,000.00 costs in favour of appellant.

Other Citations: (2000)LCN/0865(CA)