Irepodun-ifelodun Local Government V. Chief Simeon Ogundahunsi Balemo & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

HON. JUSTICE IGNATIUS IGWE AGUBE, J.C.A.

This is an appeal against the Interlocutory Ruling of J. B. K. Aladejana J. of the Ado-Ekiti High Court, delivered on the 22nd day of June, 2000 whereby he granted the 1st and 2nd Plaintiffs/Respondents’ application for Amendment of their Statement of Claim. The facts as can be gleaned from the Records are that on the 29th of October, 1991 the High Court Holden at the Ado Ekiti Judicial Division and claimed against the 1st Defendant (Rowland Olaiya Olowokere) as follows:-

“(1) Declaration that the first plaintiff as Chief Balemo is the traditional headchief or “Baale” of Araromi Obo Village, Via Ado Ekiti and NOT the Defendant as Chief Odolofin

“(2). Declaration that the Ancient Ora Village which is now part of Ado-Ekiti was the original home of Araromi Obo Community Via Ado Ekiti and the Community hails from that Village in Ado Local Government.

“(3). An Order of perpetual injunction restraining the defendant from acting as or doing anything whatsoever as the Chief of Araromi Obo Village or parading himself as such.”

Subsequently, the 3rd plaintiff and the 2nd and 3rd Defendants were joined as parties by series of Applications. Amendments were also made to the pleadings of the parties culminating in the plaintiffs/Respondents motion dated the 8th day of May, 2000 and filed on the 15th of May, 2000 seeking leave of the Trial Court for a further amendment of their Statement of Claim as contained in the Schedule of Amendments annexed as Exhibit A to the motion paper.

The Schedule of Amendment states thus:-

“A. To add to the statement of Claim as paragraphs 36(a) the followings:-

“36(a). After this case was filed in court the second and 3rd Defendants unlawfully appointed, approved and installed the first Defendant/Respondent as the Odolofin and Traditional head of Araromi Obo in Irepodun/Ifelodun Local Government and have been paying him a stipend as such.”

“B. To add sub paragraphs (4) and (5) to paragraphs 43 as follows: –

(4) Declaration that the 2nd and third Defendant’s purported appointment, approval and installation of the first defendant as the Odolofin of Araromi Obo while this action was pending in court was and is ultra vires the powers of the said defendants, unconstitutional, illegal, and therefore null and void.

“(5). An order setting aside the said appointment, approval and installation of the first defendant.”

On the 22nd day of June 2000 when the motion came up for hearing Sir C.R.A. Adedeji appeared for the plaintiffs/Applicants (now Respondents) while Alhaji Yusuf Alli Oke) appeared for the 3rd plaintiff/Applicant. A. O. Akanle (as he then was) represented the 1st Defendant and was in court.

After the Learned Counsel for the Plaintiffs/Applicants had moved the motion, the following was recorded by the Learned trial Judge at page 1 of the Record of proceedings: –

(1). “Yusuf Alli SAN does not oppose.

(2). “Akanle does not oppose the application and waives costs.”

After Yusuf Alli SAN had move his motion on behalf of the 3rd Plaintiff which was of the same purpose with that of the 1st and 2nd plaintiffs and the court granted same, Chief R. M. Esan SAN (with him Bode Adegbengbe) appeared for the 2nd Defendant and observed that some of the issues raised in the further Amended Statement of claim of the 1st and 2nd plaintiffs relate to events that happened after the writ was filed and that he the Learned Senior advocate would take the issues up in the course of trial.

There is however no evidence in the Records before us whether parties had led evidence thereafter, but suffice it to say that this appeal is predicated on the reservations expressed by the Learned Counsel for the 2nd Defendant with the granting of the application for a further Amendment of the Statement of claim of the 1st and 2nd plaintiffs/Respondents to incorporate facts which arose after they had filed their Statement of claim.

In the Notice of Appeal dated 3rd July, 2000 and filed same day at the High Court of Justice Ado-Ekiti the following Grounds of Appeal together with their particulars were therein contained: –

“GROUNDS OF APPEAL

(1) The Learned trial Judge erred in law by allowing the 1st and 2nd plaintiffs to amend their Statement of Claim to plead facts occurring after the Original filing of the writ of Summons and Statement of Claim when such facts cannot in law be pleaded by way of amendments.

Particulars

The court Ordered an amendment to paragraph 36 of the Statement of claim to add the following new paragraph 36 (g):

“After this case was filed in court the second and third Defendants unlawfully appointed, approved and installed the first Defendant/Respondent as the Odolofin and Traditional head of Araromi-Obo in Irepondun/lfelodun Local Government and have been paying him stipends as such”

(a) These facts occurring after the filing of the pleading sought to be amended cannot be pleaded by way of amendment.

“(2). The Learned trial Judge erred in law when, he granted leave to the 1st and 2nd plaintiffs to add new sub-pa graphs (4) and (5) to paragraph 43 of the statement of Claim to add reliefs accruing to the plaintiff after the filing of the Original writ of 3 summons and based on facts occurring after the filing of the Original writ of Summons as Statement of Claim.

Particulars

(a) The court ordered the addition of two sub-paragraphs to paragraph 43 of Statement of Claim to Claim the following additional reliefs “(4) Declaration that the 2nd third Defendants purported appointment, approval and installation of the 1st Defendant as the Odolofin of Araromi-Obo while this action was pending in the court was and is ultra vires the powers of the said defendants, unconstitutional illegal, and therefore null and void.”

“(5) An Order selling aside the said appointment, approval and installation of the first defendant.”

(b) The added reliefs having accrued to the plaintiffs after the filing of the original writ of Summons and being based on facts occurring after the filing of the original Statement of Claim cannot in law be pleaded by way of amendment to the Statement of Claim and writ of Summons.”

Upon transmission of the Records of the Lower Court to this Court, parties were ordered to file their Briefs and on the 26th day of February 2007 the Learned Counsel for the Appellants, Ayodeji Esan Esq., intimated the court that they had not been able to serve the 3rd Respondent and accordingly applied that her name be struck out. The court accordingly struck out the name of Ado Local Government (the 3rd Respondents).

The Registrar and Esan Esq. further informed the court that Akanle SAN who had participated in the proceedings as Counsel for the 4th Respondent was absent even though he had duly filed the 4th Respondent’s Brief of Argument. Moreover, he was in court on the last adjourned date and was duly served with the Hearing Notice on the 15th of February 2007 but he failed to appear.

The court then invoked Order 6 Rule 9(5) of the Court of Appeal rules 2002 to deem the Brief filed by the Learned Senior Counsel for the 4th Respondent as argued.

Learned Counsel for the Applicants Esan Esq. adopted the Brief of Argument dated 25th April, 2006 and filed on the 1st day of May 2006 and submitted that the sole issue for determination is the allowing of the amendment that incorporated facts which arose after issues had been joined. He urged the court to set aside the decision of the lower court and allow the Appeal. K. K. Eleja Esq. with him Mrs. M. A. Alaya for the 1st and 2nd Respondents adopted on their part, the Brief dated 24th day of May 2006 and filed on the 25th day of May, 2006 urging on the court to dismiss the Appeal.

Gbemiga Adaramola Esq. Assistant Chief Legal officer Ministry of Justice, Ekiti State for the 5th Respondent on the other hand also adopted the Brief filed on behalf of the 5th Respondent which Brief was dated 19th day of June, 2006 and urged the court to dismiss the Appeal.

In the Appellants Brief of argument, Learned Counsel for the Appellants distilled out three issues for determination namely: –

“(1) Whether it is competent or the court to allow an amendment to the Statement of Claim to plead facts occurring after the filing of the Original Statement of Claim sought to be amended;

“(2). Whether it is competent to amend the reliefs claimed in an action to introduce reliefs and causes of action occurring after the filing of the Original Writ of Summons?

“(3). What is the effect of a determination by the Court of Appeal that the amendments were granted contrary to law?”

As for the 1st and 2nd Respondents the sole issue which calls for determination according to them is: “Whether having regard to the circumstances of this matter, the trial Judge was not right to have granted the leave of the 1st and 2nd Respondents to amend their Statement of Claim.”

On the part of the 4th Respondent’s Counsel the Sole issue is whether or not the lower court was justified in allowing plaintiff to amend their claim by adding facts which occurred after the action came to court an allowing them to claim relief on the consequent amendment.

Finally the Learned Counsel to the 5th Respondent also maintained that: “The main issue for determination is whether the lower court was right to have granted the plaintiffs application for amendment of the Statement of Claim.”

Taking issue Number one (1) the Learned Senior Advocate for the Appellants submitted that it is not competent for the trial court to grant an amendment to the Statement of Claim to plead facts, which occurred after the Original Statement of Claim, had been filed. For this submission he relied first on the case of SNEADE VS. WORTHERTON (1904) 1 C.B.297 which was cited with approval by AGUDA J. (as he then was) in 1971 in the case of MOBIL OIL NIGERIA LTD. VS. ABOLADE COKER (1971) NMLR 570 at 58.

The Learned Appellants’ Counsel further cited the cases of OSEYOMON VS. OJO (1993) 6 NWLR (PT.299) 44 at 316; JATAN VS. AHMED (2003) 4 NWLR (PT.811) 498 at 511; MANAMBU VS. OKAFOR (1966) 1 ALL NLR205; GOWON VS. IKE-OKONGWU(1994) 2 NWLR(PT.326) 355 at 366, IWEKA VS. SCOA(NIG.) LTD (2004) 7 NWLR (PT.664) 325 at 341 to submit and point out the rationale behind the decision that amendment should not be granted which would incorporate facts that occurred after the original Statement of Claim had been filed.

He then contended that the facts which were brought into the statement of claim in this case by way of amendment, were clearly stated in the said paragraph 36 (a) of the Statement of Claim to have occurred ‘after this case was filed in court”, and that the facts having not existed then they ought to be only litigated upon a fresh action.

The Learned Senior Advocate insisted that the amendment to introduce paragraph 36 (a) to the Statement of Claim ought no be allowed, submitting finally on this issue that on the strength of the overwhelming authorities on the issue, this court should resolve the first issue in favour of the 2nd Defendant/Appellant.

On the 2nd issue it was submitted by the Learned Counsel for the Appellant that the reliefs introduced to the action by an amendment to paragraph 43 of the Statement of Claim constitutes an amendment to the writ of summons to the extent of the difference between the reliefs claimed in the Statement of Claim and the writ of Summons. For this reason he further argued, the final paragraph of the Statement of Claim can only be allowed to be amended in circumstances under which the reliefs endorsed on the writ of Summons can be amended. He placed reliance on the cases of OLADEJO VS. ADEYEMI (2000) 3 NWLR (PT.647) 25 at 38; ONYERO VS. NWADIKE (1996) 9 NWLR (PT.471) 231 at 239/240 an MULTI-PURPOSE VENTURES LTD VS. A.-G. RIVERS STATE (1997) NWLR (PT.522) 642 at 663 to submit that the reason for not allowing an amendment to the writ of Summons to plead causes of action accruing to the plaintiff after the commencement of the action is that once a process of court is amended the amendment relate back to the date the original process was filed and consequently, the Summons becomes the origin of the action. U.B.A. PLC. VS. ABDULLAH (2003) 3 NWLR (PT.807) 359 at 378; GOWON VS. IKE. OKONGWU Supra at 365/366 and WORLD GATE LTD VS. SOBANJO (2000) 4 NWLR (PT.654) 669 at 679/681 were cited to submit finally on this issue that on the authorities cited the amendment granted and the reliefs contained in paragraph 43 of the Statement of Claim, to introduce causes of action accruing to the 1st and 2nd plaintiffs after the filing of their writ of Summons is incompetent. He therefore urged the court to set aside the order of amendment and resolve issue Number 2 in the appellant’s favour.

Finally, on the 3rd issue, which relates to the Order for the court of Appeal to make in the circumstances of this Appeal where the Order of Amendment was wrongly made in the Lower Court, the Learned Senior Advocate submitted on the authority of ARUBO VS. AIYELERU (1993) 3 NWLR (Pt.280), 1260 43 (?) that the position of the law is that the said order made in breach of the principles of pleadings should be set aside and he so urged this court to set same aside.

Counsel for the 4th Respondent A. O. Akanle SAN in his characteristically terse Brief of Argument on the Sole issue he formulated first conceded to the fact that the 4th Respondent did not oppose the plaintiffs’ application before the lower court to amend the pleadings.

However, according to the learned Senior Advocate, on a reconsideration and subsequent further study and research, they have come to the conclusion that in law the amendment should not have been allowed and the 4th Defendant/Respondent ought to shift ground on his solicitor’s advise who said after the said amendment he came across GOWON VS. IKE OKONGWU Supra page 49 paras. B-C and upon this authority the Sole issue should be resolved in favour of the Appellants.

On their part, the 1st and 2nd respondents in their Brief of Argument after a synopsis of facts of the case argued on the Sole issue through their counsel that a critical look at the endorsement at their writ of summons especially paragraph I thereof would reveal that their claim especially that of the 1st plaintiff at the lower court centred on declaration that he as Chief Balemo is the traditional head Chief or ‘Baale’ of Araromi-Obo and not the defendant who is now the 4th Respondent (the Chief Odolofin). The Learned Counsel referred to paragraphs 19 and 30 of their Statement of Claim where these facts are pleaded and the schedule of amendments of the 1st and 2nd Respondents at page 13 of the Records which shows that the Appellants and 5th Respondent had purported to install the 4th Respondent despite the pendency of the action to submit that the addition of paragraphs 36 (a) and indeed the other paragraphs was for the purpose of determining in the existing suit the real question in controversy between the parties.

This, according to the Learned Counsel for the 1st and 2nd Respondents is clear from the endorsement in the writ of Summons, the Statement of Claim, and the schedule of amendment that the real issue in controversy is as to who between the Balemo and Odolofin is the head Chief of Araromi-Obo village. Accordingly, it was submitted on the authority of OJAH VS. OGBONI (1976) NS C 244 at 247 per Madarikan J.S.C. that the amendment sought has complied with the guiding principles in amendment of pleadings.

Counsel for the 1st and 2nd Respondents further submitted that the correct principle to guide the court in considering whether or not to grant an amendment of pleadings had been aptly expressed by BOWENL. J. IN CROPPER VS. SMITH (1884) 26 CH. D. 700 AT 710.711. They then urged the court to hold that the grant of the amendment was proper in the lower court since it is for the purpose of determining in the existing suit the real question in controversy between the parties.

Learned Counsel again submitted relying on the case of IGWE VS. KALU (2002) 5 NWLR (PT.671) 678 at 725.726 paragraphs H-B per KUTIGI J.S.C. (as he then was) that a court of justice is bound to grant an amendment of pleadings when it appears to it that such an amendment is for the purpose of deciding the rights of the parties especially when such an amendment is not fraudulent or intended to over reach the other party.

The Learned Counsel for the 1st and 2nd Respondents maintained that the appellant herein has not alleged that the amendment sought might prejudice their case or was intended to over reach her or was fraudulent or brought mala-fides but that all that she has always said is that the amendment was brought in respect of a cause of action that occurred after filing of the suit but that she has not told the court how she would be prejudiced.

For this submission the case of BANK OF BARODA VS. IYALABANI CO. LTD. (2002) 13 NWLR (PT.7 5) 551 at 539 par. F-H was cited in support. Still on the issue of incorporation of new cause of action and the case of GOWON VS. IKE OKONGWU which was relied upon by the Counsel for the Appellant in their submission, Counsel for the 1st and 2nd Respondents countered that assuming that a new cause of action was to be incorporate by the amendment; the court still had the powers to grant the amendment provided it appeared that as in this case that the additional or new cause of action arises out of the same transaction or substantially from the same facts as are contained in the pleadings.

Reliance was placed on the dictum of ESHO J.S.C. (as he then was) in IPADEOLA VS. OSHOWOLE (1987) 3 NWLR 18 at 33 to distinguish the cases of OSEYOMON VS. OJO Supra and GOWON VS. IKE.OKONGWU Supra cited by the Learned Counsel for the Appellant which facts and circumstances he submitted are not the same with our present case.

The Respondents’ Counsel particularly referred to the dictum of KATSINA-ALU J.S.C. in that case at pages 49 to 50 paragraph D on the distinguishing factors in the case cited by the Appellant and the case at hand.

He then urged the court to dismiss the appeal on the above submissions as same is a ploy to waste ‘the time of this Honourable Court and stall the trial at the lower court over which she had been granted stay of proceedings since year 2001.

Counsel for the 5th Respondent in his terse 5th Respondent’s Brief of Argument conceded that they did not oppose the application in the lower court as same was for the purpose of determination of the real question in controversy between the parties and for substantial justice to be done to the parties involved.

He further agreed with the contention of the Learned Counsel for the 1st and 2nd Respondents that it is obvious that the real question for determination in the lower court is, who between the 1st and 4th Respondents is Head Chief of Araromi-Obo village.

Re-echoing the submissions the Learned Counsel for the 1st and 2nd Respondents and the authorities of BANK OF ARODA VS. IYALABANI CO. LTD Supra, NIGERIA DYNAMIC LTD. v. DUMBAI; IGWE VS. KALU and IKYERUNUM VS. IORKUMBUR Supra he submitted that the court must consider the materiality of the amendment sought in deciding whether or not to grant it and that the court would not allow useless and inconsistent amendment.

In this regard he noted that the amendment granted by the court below duly complied with the grounding principles of amendment of pleadings as laid down by the Supreme Court in the cases above cited and the appeal ought to be dismissed as he so urged us to do.

I have taken a cursory look at the Grounds of Appeal filed by the Appellants and in spite of the three issues formulated there from by the Learned Counsel for the Appellants in the Appellants Brief of Argument, he did accept in the course of his oral adumbration on the 26th day of February, 2007 that the sole issue for determination is whether the Learned trial Judge was right in allowing the amendment that incorporated facts which arose after issues had been joined.

All other Learned Counsel agreed with this issue as formulated but I am of the considered view that the issue which best captures the tenor of the Grounds of Appeal is as formulated by the Learned Counsel for the 4th Respondent A. O. Akanle SAN which is: “whether or not the lower court was justified in allowing plaintiffs to amend their claim by adding facts which occurred after the action came to court and allowing them to claim relief on the consequent amendment.”

I shall therefore adopt the above issue as formulated by the Learned SAN for 4th Respondents in the determination of this Appeal. The Learned Counsel for the Defendants/Appellants has condemned the grant of the application as an error in law committed by the Learned trial Judge. In other words, they contend that the exercise of the discretion by .the learned trial Judge was injudicious. It is pertinent to note that the Plaintiffs/Applicants in the lower court predicated their Application on Order 26 Rules 2 and 3 of Ondo State High Court (Civil Procedure) Rules, which provides for the circumstances under which the court may grant leave to amend pleadings.

The said Rules are here under reproduced as follows from Rule 1 thereof: –

“AMENDMENT”

“Order 26

“1. The court or Judge in Chambers may at any time, and on such terms as to costs or other wise as the court or Judge may think just, amend any defect, or error in any proceedings, and all necessary amendment shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings.

“2. The court or a Judge in Chambers may, at any stage of the proceedings allow either party to alter or amend his endorsement or pleadings in such a manner and on such terms as may be just and all such amendments shall be made as ma be necessary for the purpose of determining the real questions in controversy between the parties.

“3. Application for leave to amend may be made by either party to a Judge in Chambers or to the court at the trial of the action and such amendment may be allowed upon such terms as to costs or otherwise as may be just.” (Underlining mine for purposes of emphasis.)

From the foregoing provisions, it is clear that the High Court Judge is imbued with awesome powers to amend pleadings as he may think just, provided that the powers are exercised judicially and judiciously with he primary aim of determining the real questions or issues raised by the proceedings or questions in controversy between the parties and in the interest of justice.

A plethora of cases have been cited by Learned Counsel on each side of the divide to advance the respective positions taken by them in the course of argument. However, one of the cases which decision I find very illuminating and instructive on this vexed issue is OJAH & ORS VS. OGBONI & ORS (1976) N.S.C.C. (VOL.10) 244. In that case the judicial titans of the Supreme Court, Sowemimo, Irikefe and MADARIKAN J. J. S.C. (as they were then) laid bare the principles underlying the exercise of the powers conferred on the court to grant amendment of pleadings when they held:-

“In exercise of the powers thus conferred, the court must have more regard to substance: and, as a general rule, an amendment under Order XXXIV will be granted if it is “for the purpose of determining in the existing suit the real questions or question in controversy between the parties.”

It is well settled law that an amendment of pleadings should be allowed unless:-

(I) It will entail injustice to the respondent.

(2) The applicant is acting mala-fide (SEE TIDESLEY VS. HARPER (1878) 10 CH.D. 393 AT P- 96. or

(3) By his blunder, the applicant has done some injury to the Respondent, which cannot be compensated b costs or otherwise. SEE TILDESLEY’S CASE SUPRA. (OGUNTIMEHIN VS. GUBERE (1964) 1 ALL NLR 176 AT 179 AND AMAD VS. THOMAS APLIN & CO. LTD (1972) 1 ALL NLR 409″.

Still on the principles guiding a court in considering whether to grant an application for amendment of Pleadings the erudite Justices alluded to the oft-quoted dictum of BOWEN L. J. in CROPPER VS. SMIT (1884) 26 CH.D. 700 at 710 and 711 who said inter alia: –

“I think it is well established principle that the object of courts is to decide the rights of parties and not to punish them for mistakes which 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 mistakes which if not fraudulent or intended to over reach, 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 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 a decision of the real matter in controversy it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right.”

What emerges from the above quotation in my humble view, is that the primary object of courts is to do substantial justice and that once an amendment is not fraudulent; intended to over reach or can be done without injustice to the other party to the case, it can be effected provided it is for the sake of deciding matters that are in controversy between the parties.

In our instant case it is not a question rectification errors. The gravamen of the Appellants Appeal stems from the incorporation of a purported cause of action which arose after pleadings had been exchanged an according to the Learned Counsel for the Appellants and that of the 4th Respondent such amendment is a breach of the Rules of court.

Learned Counsel had relied on the case of SNEADE VS. WOTHERTON (1904) 1 K.B. 297 which was cited with approval by AGUDA J. (as he then was) in the case of MOBIL OIL NIGE IA LTD. VS. ABOLADE COKER (1971) N.M.L.R. 56 at 58 where His Lordship held the amendment sought in paragraph 12 of the Statement of Claim to be useless and that it was queer that it sought to plead a fact which never existed at the time the pleading was filed and that once an amendment is made, it relates back to the date of the document amended.

The cases of OSEYOMON VS. OJO Supra, JATAN VS. AHMED; AMANAMBU VS. OKAFOR; GOWON VS. IKE.OKONGWU and IWEKA VS. SCOA Supra were all cited to emphasize the point that since an amendment relates back to the date the original pleadings were filed, where an amendment seeks to include a cause of action which arose after the Statement of Defence had been filed such an amendment should not be allowed.

In the same vein the Appellants Counsel has also strenuously argued on the authorities of OLADEJO VS. ADEYEMI; ONYERO VS. NWADIKE and MULTIPURPOSE VENTURE LTD VS. A.G RIVERS STATE Supra that the final paragraph of the Statement of Claim can only be amended in the circumstances under which the reliefs endorsed on the writ of summons can be amended.

All these authorities cited, with he greatest respect may well be justified upon the consideration of their peculiar facts and circumstances.

For instance, in the celebrated case of GOWON VS. IKE.OKONGWU (2003) 6 NWLR (PT.815) 38 cited by the Counsel to Appellants, the 1st Respondent and her son Musa Gowon sued the Appellant claiming some declaratory and injunctive reliefs touching on the acknowledgement of the paternity of the 2nd Respondent by the Appellant and for orders of the High Court Lagos State compelling the Appellant to pay N10,000,000.00 damages for libel to the 1st Respondent, N20,000,000.00 damages for libel to the 2nd Respondent N250,000.00 being money the 1st Respondent paid for the education of the 2nd Respondent and that the Appellant should maintain and pay the school fees of the 2nd Respondent from the date of the judgment.

The Appellant denied liability and subsequently filed a motion seeking leave to amend his statement of defence by inclusion of a counter-claim as the defendants were the Respondents and the subject of the Counter-claim was an alleged libelous article in two publications of the “HINTS – True Life Romances”, which publications complained of were made after plaintiffs had filed their suit and their Amended Statement of Claim and after the Appellant had filed his Statement of Defence. The Defendant/Appellant’s motion was dismissed and struck out and upon appeal to the Court of Appeal, same was dismissed. On further appeal to the Supreme Court it as held as follows: –

I. That just as the plaintiff cannot be allowed to bring into his case an entirely fresh cause of action which arose after the action had been started, a defendant will not be allowed to raise by way of an amendment to the Statement of defence a counter-claim in respect of cause of action that arose subsequent to the issue of the writ of summons. Such an amendment, if allowed, will not constitute an amendment but will amount to starting a new cause of action, and one which did not accrue and therefore could not have been sued upon, at the time the action was brought.

2. The Learned Justices of the apex court went on to define what a counter-claim is and stating that even though it is a cross – action for the sake of convenience they could be tried with the original suit. They further held that the parties swap positions in a counter-claim and advised that the defendant may, instead of suing separately, insert his claim not the plaintiffs Suit as a counter-claim if it is of a kind which by law he is entitled to raise and have disposed of in the plaintiffs Suit.

KATSINA ALU J.S.C. who read the lead judgment of the court then went on to state the position of the law inter-alia at ages 49-50 paragraphs E-D thus:-

“If the original Suit and the counter-claim arose out of the same set of facts or transactions, it would be desirable and indeed convenient to hear them together. In this case, the issues for resolution in the original action and the action sought by the counter-claim are not the same and are not inter-related. Also, the parties are not the same. In the circumstances, the suit cannot be tried together (OYEGBOLA VS. ESSO WEST AFRICA I.NC. (1966) 1 ALL NLR (170.).”

I, agree with the submissions of the Learned Counsel for the 1st and 2nd Respondents that the circumstances of this case are different. This not withstanding there is a very subtle point, which has been made by the dictum above reproduced. It goes to show that the incorporation of a new cause of action in the course of an amendment has not been absolutely prohibited by the Rule.

By parity of reasoning, it would appear that where an amendment incorporates a cause of action which might have been anticipated at the time the original writ of summons was issued or that the cause of action sought to be incorporated by way of amendment arose out of the same set of facts or transactions, it would be desirable to incorporate it to the original suit so as to be tried and the issues in controversy determined at once.

I derive authority from the following cases: –

FOKO VS. FAKO (1968) NMLR 441, and OLU SOLANKE VS. G. SOMEFUN & ANOR. (1974) 1 S.C; 141 where the questions were raised as to whether there can be an amendment by substitution and it was variously held 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 or substitute therefore a new cause, provided that the additional or the new cause arises out of the same facts or substantially then same facts as a cause of action in respect of which the plaintiff has already claimed relief.

The above position was emphasized by the Supreme Court in the case of OGWUMA ASSOCIATED COMPANIES LTD VS. I.B.W.A. (1988) 1 NWLR 658 where there was a loan agreement between the plaintiff Bank and the ‘Defendant Company. In 1978, the Bank sued the company for recovery of loan granted to it under the said agreement. Subsequently in 1981, the writ was amended to include claims for the recovery of further loans granted under the same agreement, which became due by that year.

In upholding the propriety of the amendment, the Supreme Court held the view that the plaintiffs claim in 1981 was based on the loan agreement and that accordingly, the amendment did not seek to introduce a new loan agreement or constitute the addition of a new cause of action nor did it raise a different case and that it amounted to no more than a different or additional approach to the same facts based on the same cause of action. The amendment was further held to have represented fresh claims arising out of the original cause of action and that to disallow it would defeat one of the main purpose of amendment, namely, that as far as possible in any proceedings all questions should be decided so as to prevent multiplicity of actions by the same parties. See again the case of IPADEOLA VS. OSHOWOLE (1987) 3 NWLR (PT.59) 18 AT 33 per ESHO J.S.C. cited by the Learned Counsel for the 1st and 2nd Respondents.

Against this background we shall now consider the sole issue formulated in this Appeal. I have already reproduced the claim of the plaintiffs as indorsed in the writ of Summons and the Statement of Claim which for purposes of emphasis I restate hereunder:-

“1. Declaration that the first plaintiff as Chief Balemo is the Traditional head Chief or ‘Baale’ of Araromi abo village, via Ado Ekiti and NOT the Defendant as Chief Odolofin.

“2. Declaration that the Ancient Ora village which is now part of Ado Ekiti was the original home of Araromi Obo Community, via Ado Ekiti; and the community hails from that village in Ado Local Government.”

“3. An Order of perpetual injunction restraining the Defendant from acting as or doing anything whatsoever as the head Chief of Araromi Obo village or parading himself as such”.

Again in the statement of claim the plaintiffs pleaded as follows: –

“3. The first plaintiff is a minor Chief and the traditional head Chief of Araromi-Obo.”

“14. With the consent of the Olora and the Ewi his second in command in Obo was given the title of Odolofin; up till today the Odolofin is second in rank to the Elemebo, which title was changed in 1963 to Balemo of Araromi. (Obo) by the same process of publication by which the name of the village was changed to Araromi. Those documents will be founded upon at the trial.

“16. The first plaintiff is the present Balemo of Araromi who was made the head Chief sometime during the year 1981 in succession to his Ancestors who had succeeded one another in succession as ‘Baales’ since the founder and first head Chief or ‘Baale’ of Araromi Obo.

“18. The Defendant is the Odolofin Elect of Araromi Obo. Though the title Odolofin has been approved of him, he has not performed the installation ceremonies of the Chieftaincy.

“19. The Odolofin in the next in rank to the Balemo in the hierarchy of Chiefs in Araromi but he is not the head Chief.

“30. The Defendant in his bid to do this has declared that Araromi Obo was never part of Ado and that it did not have its origin in Ado and that the land on which Araromi settled is not Ado land, and that the Ewi has never been the overlord at Araromi Obo and that he, Odolofin Elect is the head Chief or Baale of Araromi and as such he has done everything, though unlawfully and illegally to show his cronies in the Irepodun/Ifelodun Local Government that he as the head would lead Araromi Community en-masse to join the Irepodun/Ifelodun Local Government.

“31. He at one time wore a fake crown and Chieftaincy beads to the Ado Local Government office to show falsely that he was the ‘Baale’ of Araromi-Obo and that he was mandated by the Araromi Community to inform the Council officials that Araromi was to be with Afao (Irepodun/Ifelodun Constituency) in the political elections.

“32. The officials of the Council were thus deceived, but when the Araromi Community and Ado people heard that act of deception, they protested and the Ado Local Government officials investigated the matter and found that the defendant was merely impersonating the first plaintiff who is the true head and Baale of the Araromi Community.

“33. Up till now the Defendant is still trying to persuade the officials of the Irepodun/Ifelodun Local Government that he is the Baale of Araromi and that he would lead the entire Community to that Local Government.”

What then was the amendment sought by the 1st and 2nd Respondents, which was granted by the court thus generating this Appeal?

According to the “SCHEDULE of AMENDMENT dated 9th day of May, 2000 which was annexed to the Motion for Amendment dated 8th May and filed on the 15th day of May, 2000, the plaintiffs/Applicants sought: –

“A. To add to the Statement of Claim as paragraphs (sic) 36(a) the followings:-

“36(a) After this case was filed in court the second and third Defendants unlawfully appointed, approved and installed the first defendant Respondent as the Odolofin and Traditional head of Araromi Obo in Irepodun/Ifelodun Local Government and have been paying him a stipend as such.”

“8. To add sub-paragraphs (4) and (5) to paragraph 43 as follows:-

(4). Declaration that the 2nd and third Defendants’ purported appointment, approval and installation of the first defendant as the Odolofin of Araromi Obo while this action was pending in court was, and is ultra vires the powers of the said Defendants, unconstitutional, illegal, and therefore null and void.

(5). An order setting aside the appointment, approval and installation of the first defendant”.

It has been submitted, and rightly in my view, by the Learned Counsel for the 1st and 2nd Respondents that from the quoted paragraphs of the statement of claim and the schedule of Amendment, the main complaint of the 1st and 2nd Respondents centers on the declaration that the 1st plaintiff/Respondent is the traditional head Chief or ‘Baale’ of Araromi Obo village and not the 4th defendant/Respondent who is the second in rank as the Odolofin but the said Defendant had prior to the institution of this action been falsely parading himself with the tacit connivance of the Appellants that he is Superior to the Baale (1st plaintiff/Respondent) because the defendant wanted to drag the entire Araromi Obo Community from Ado to Irepodun/lfelodun Local Government where he would realize his ambition of becoming the Head Chief in spite of protestations from the said Community and Ado people.

When the 1st and 2nd Respondents (particularly the 1st) and the Community could not stop the 4th Defendant to do so to the detriment of the entire community of Araromi Obo, they then took the action that culminated in the application for amendment for that while the action was pending, the Appellants, (true to the fears of the 1st and 2nd Respondents), went ahead to recognize and install the 4th Respondent oblivious of the Respondents’ claim which sought a declaration that the 1st plaintiff/Respondent was the Baale or head Chief of Araromi Obo via Ado-Ekiti and NOT the Defendant as the chief Odolofin. Moreover, the Respondents had in their further reliefs sought for Declarations that the Ancient Ora village which is now part of Ado Ekiti was the original home of Araromi Obo Community via Ado Ekiti and that the community hails from that village and for an Order of perpetual injunction restraining the Defendant from acting or doing anything whatsoever as head Chief of Araromi Obo village or parading himself as such.

From the peculiar circumstances of this case and in line with the authorities earlier considered I am of the candid view that the facts in the original suit and the claim or reliefs sought to be incorporated by amendment are substantially the same and they arose from the same set of facts and transaction and indeed are interrelated. The parties are also the same and there is/was nothing stopping the learned trial Judge of the lower court from exercising his undoubted discretion under the Rules to grant the amendment.

In fact a careful perusal of the averments in paragraphs 4-7 of the affidavit in support of the motion for amendment would reveal that the learned trial judge exercised his discretion judiciously and judicially in granting the Application. In the first place there is nothing to suggest that the application was not timely brought so as to delay the hearing of the case or that the proposed amendment was done mala-fides or that it would injure or adversely affect vested rights of the Appellants such that cost which as OPUTA J (as he then was) put it in ENWEZOR &ORS VS. ENWEZOR & ORS (1973) 3 ECSLR (PT.3) 802 at 805; ‘that healing balm, that one panacea which heals every sore in litigation”, cannot be applied to compensate the appellants following the grant of the application for amendment.

If the award of costs will place the Appellants in as good a position for the purpose of having the real questions in dispute to be determined, that will suffice and more in the spirit and letters of order 26 of the High Court (Civil Procedure) Rules for that is the essence of paragraphs 4 and 5 of the Applicants/Respondents’ affidavit which disclose that it is very necessary for them to further amend their statement of claim so that all the issues in controversy to be adjudicated by the court would be placed before it following the recognition of the 4th Respondent and his installation after the plaintiffs/Respondent had filed the original action.

It is worthy of note that no counter-affidavit was filed by any of the opposing parties to the Amendment neither has any of them averred that the amendment has prejudiced their case. Their major grouse is that the amendment has added a cause of action after issues have been joined. Of course from the authorities of FOKO VS. FOKO, SOLANKE VS. SOMEFUN Supra, the Supreme Court has held that amendment can be made by introducing a new cause of action or substituting a fresh one for the original provided the facts in the additional new cause are substantially same with that of which the plaintiff has already claimed relief which is exactly the scenario that has been created in the instant case.

See OGUMA ASSO. CO. LTD VS. I.B.W.A .

Again, the appellants have argued that the proper thing to do is for the Respondents to file a fresh action and claim on the new cause of action and the reliefs sought because of the doctrine of relating back to the original writ of summons after the amendment had been effected.

In the case of THE ALERT (1895) 72 L.T. 124 which was cited with approval in the OJAH VS. OGBONI case Supra where a similar application to ours was made which had the effect of increasing the claim of the Plaintiff, Jeane P. posited: –

“Where you can see your way, without risk of failure of justice, to allow the cause to be decided on its full merits, every court of justice is bound to do so. I see no season why this case should not be heard and the real merits of it adjudicated upon.”

I adopt the above dictum as mine as it applies mutatis mutandis to the facts and circumstances of this case.

It would therefore be most unconscionable for the parties if the plaintiffs/Respondents are deprived of the incorporation of the claim and reliefs sought in the amendment. The filing of a new suit on the cause of action, which according to the Appellants arose after joining of issues, would tantamount to waste of judicial time and money and indeed make room for multiplicity of actions, which is incompatible with the intendment, and spirit of Order 26.

I am of the candid view that since it would appear that evidence has not been led and the prayers of the 1st and 2nd Respondents had been granted, the Defendants/Appellants shall be entitled ex debito justitiae to be given an opportunity of reconsidering their own position in the light of the amendment to the plaintiffs/Respondents’ claim so that all the issues in controversy would be sorted out and determined in one fell swoop. Accordingly the sole issue for determination is resolved in favour of the 1st and 2nd Respondents and against the Appellants.

On the whole, this Appeal is unmeritorious and is accordingly dismissed with N10,000.00 costs in favour of the 1st and 2nd Respondents as I consider it as one of those interlocutory appeals, which learned counsel file to bid for time and to frustrate both their opponents and the court in the ad judicatory process.

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Other Citations: (2007)LCN/2373(CA)