Patrick Izuagbe Okolo & Anor. V. Union Bank Of Nigeria Limited (1999)

LAWGLOBAL HUB Lead Judgment Report

O. EJIWUNMI J.S.C.

The unique question raised by this application is whether it is proper to allow the applicants to further amend their pleadings before the main appeal is heard in this court.

By a Motion on Notice dated 4th day of November, 1998 and filed in this Court on the 19th November, 1998, the applicants are asking for the following order or Orders:-

1. “Granting Leave to further amend the Amended Statement of Claim filed in this case in line with evidence already led and contained in the records of Appeal as underlined in Red herein.
2. Deeming the attached proposed further amended Statement of Claim attached to the supporting affidavit herein and marked as Exhibit ‘P10′ as duly filed and amended; the appropriate filing fees have been paid.
3. Directing the said pleadings to be part of the Records of appeal herein in place of the existing amended Statement of Claim at pages 42A-42G and for such further Order or Orders as this Honourable Court may deem just and expedient to make in the circumstances.”

In support of this Motion, the applicants filed a seven paragraphed affidavit deposed to by one James Ukpanya, a litigation Clerk in the firm of Okiemute Mudiaga Odje & Co., who are the applicant’s Solicitors. As I consider that paragraphs 2, 3, 4, 5, & 6 of the said affidavit are relevant, they are reproduced as follows:-

2. “The appellants/applicants were unsuccessful at the Court of Appeal, Benin-City and expediently sought and successfully obtained the leave of that Court to appeal against that judgment of which Records of Appeal the parties herein diligently assembled and had same transmitted to this Honourable Court.
3. Going through the said Records of Appeal, the Head Counsel of the said appellants/applicant’s Solicitors, Okiemute Mudiaga Odje Esquire has informed me and I verily believe him, that there is an imperative need to further amend the (sic) Statement of Claim filed in this case in order to bring it in line with (sic) the evidence already contained in the Record of Appeal particularly the evidence of the 1st Appellant/Applicant at pages 50-60 of the said Records of Appeal.
4. I am still informed as aforesaid and I verily believe the same, that this Appeal can only be effectually and properly presented with full force and steam if the proposed amendment for which no further evidence is required is granted by this Honourable Appellate Apexian Court. I attach hereto and mark as Exhibit “P10″ a copy of the proposed further amended Statement of Claim.
5. I am still further informed as aforesaid and I verily believe that having regard to the evidence on record for which this amendment is brought in line with, the Cross-Appellant/Respondent will suffer no injustice whatsoever and can always be assuaged in costs to enable this last Court completely, effectually and fully adjudicate upon the Real and Live issues in this appeal.
6. The 1st appellant/applicant has informed me and I really believe him that the appellants/applicants are anxious, enthusiastic, willing and able to pursue this appeal to its logical conclusion of this appeal if and when this Honourable Apexian Court grants the order humbly sought on the attached motion paper.”

Before I refer to the proposed amendment, it is necessary to set down the relevant paragraphs of the Counter Affidavit filed in opposition to this application. This Counter-Affidavit was deposed to by one F.I. Agboroh Esq, Legal Practitioner in the law firm of E.L. Akpofure (SAN) & Co. Solicitors to the Cross-appellant/Respondent. The relevant paragraph of the said Counter-Affidavit reads thus:-

“(3) That my principal in Chambers, Chief E.L. Akpofure SAN, had gone through the entire record and has informed me and I verily believe that:-

(a) The amendment sought is over reaching.

(b) The cross-appellants/respondents will be prejudiced if this application is granted.

(c) The cross-appellants/respondents herein shall be duty bound to lead evidence to controvert or challenge the new averments and the new reliefs sought to be amended by the appellants.

(d) That the said amendment is an attempt to rewrite both the judgments of the trial Court and the Court of Appeal.

(e) That the amendment sought in the proposed amended Statement of Claim at this stage is not in line with evidence as claimed by the appellant.

(f) That the gravity of the said application will automatically lead to the respondent herein amending their own Statement of defence, and thereafter calling oral evidence.

(g) It will be in the interest of justice for this application to be refused at this stage.”

At the hearing of the application, E.L. Akpofure Esq. SAN for the respondent opened his argument by referring to the Counter-Affidavit he had filed on behalf of the respondent to oppose the application. The learned Senior Advocate for the respondents then referred the Court to paragraphs 13. 18(j), 21(d), of the amended Statement of Claim to support his submission that by those paragraphs, the applicants had pleaded and given evidence on the suspense account which they were operating with the respondent. (See page 42 at lines 6-27 of the Record of Proceedings).

Then he referred us to paragraph 21(b) of the proposed further Amendment to the Amended Statement of Claim which was attached as Exhibit “P 10” to the application. He then submitted that by the proposed amendment, the applicants are trying to set up a new case, and he urged that this Court should not allow the applicants to do so. He further contended that if the amendment was granted, it will be necessary to call evidence’. In particular, he argued that both sides would have to lead evidence on the nature of interest chargeable by the Central Bank in connection with the date when judgment was delivered in the matter in the trial Court. In support of his submissions he cited the Case of Jessica Trading Company Ltd. v. Bendel Insurance Company (1991) 1 NWLR (Pt.271) 538 at 547. He finally submitted that the application be refused.

For his part, learned counsel for the applicants. O. Mudiaga Odje, Esq. urged that the application be granted. He contended that the application was brought merely to bring the pleadings in line with the evidence already on record. In his view the applicants would not need to call any further evidence. But he urged that the Court could take judicial notice of the interest rates fixed by the Central Bank as deemed relevant. The learned counsel for the appellants brought to the attention of the Court some authorities in support of his contention, and also referred particularly to Osho v. Ape (1998) 8 NWLR (Pt.562) 492 at 502. I will in the course of this ruling refer to them as I consider necessary for the determination of the question raised by this application.

In order to make the point clear I will set out the paragraph 21(b) as pleaded in the Amended Statement of Claim, and as it is now subject to be amended.

Paragraph 21(b) of the Amended Statement of Claim reads thus:-

“An order for Account of all monies paid into and debited against 2nd plaintiffs Account or Accounts with the Defendant from 1986 till date and reversal of all wrongful and illegal debits made by the Defendant on the said accounts from 1986 till date and payment over to the 2nd plaintiff of all monies excessively debited with interest at present Bank Rate.”

Paragraph 21 (b) as averred in the proposed Further Amended Statement of Claim reads thus:-

“An Order of Court directing the Defendant to refund the sum of N239,143,00 (Two hundred and thirty nine thousand. one hundred and forty three Naira) plus accrued interests from 1982 up to date of judgment and/or payment at the ruling Bank rate from year to year as stipulated by the Central Bank of Nigeria and/or in the alternative.”

It is manifest from a careful reading of paragraph 21(b) of the proposed Further Amended Statement of Claim that it is totally different in its terms from the paragraph 21(b) of the Amended Statement of Claim upon which the case was heard and determined. As a manner of fact it is also clear that the original paragraph 21(b) was also included in the proposed Further Amended Statement of Claim as its paragraph 21(b) a. So strictly paragraph 21(b) as proposed is in fact a new averment upon which the applicants would want the appeal to be heard and determined.

In the course of his address, learned counsel for the applicants had sought to assure the Court that he would not need to call fresh evidence to justify this new averment and that the other side would not be embarrassed in any way should the amendment be granted, The position of the learned counsel for the respondent E.L. Akpofure SAN, is diametrically opposed to that of counsel for the applicants. His view is clearly to the effect that if the amendment was granted, fresh evidence would have to be called with the consequent result that would flow from such an exercise. The Principles that should guide a Court in deciding whether an amendment to a Statement of Claim ought to be granted or not, have been the subject of several pronouncements by this Court. Some of such cases are as follows:- Olu of Warri v. Esi (1958) S.C.N.L.R, 384; Re:Pedro St. Mathew-Daniel (Deceased) (1950) 19 NLR 73; Abasi v. Labivi (1958) WRNL 12; Foko v. Foko (1968) NMLR 441; Union Bank v. Ogboh (1995) 2 NWLR (Pt.380) 647; Oyenuga v. Provincial Council of University of Ife (1965) NMLR 9; Jessica Trading Co. Ltd v. Bendel Insurance Co. Ltd. (1993) 1 NWLR (Pt.271) 538.

From all these cases and others to which I have not referred to specifically, in this ruling. I think the following principles are discernible to determine when and in what circumstances a party may be allowed to amend his pleadings. These are:-

(a) The Court must consider the materiality of the amendment sought and will not allow an inconsistence or useless amendment.

(b) Where the amendment would enable the Court to decide the real matter in controversy, and without injustice.

(c) Where the amendment relates to a mere misnomer, it will be granted almost as a matter of course.

(d) The Court will not grant an amendment to change the nature of the claims before the Court.

(e) The Court will not grant an amendment where it will create a suit where none existed.

(f) Leave to amend will not be granted if the amendment would not cure the defect in the proceedings.

(g) An amendment would be allowed if such an amendment will prevent injustice, Any amendment which will result in injustice to the other party or which will violate the rule of audi aiteram partem will not be allowed, The rule will be infringed if an amendment is introduced at such a stage that the other side no longer has the opportunity of adducing its own answer to the point which the amendment has enabled the applicant to introduce.

(h) An amendment will not be granted on appeal where it would be inconsistent with the testimonies of witnesses on which both parties fought the case at the trial.

In the instant case, the applicants are seeking an amendment to their pleadings in this Court and their learned counsel has argued that the amendment would not adversely affect the interest of the respondent. It is also contended for them that the evidence required to support the new amendment has been given by the 1st applicant in the course of his evidence on record. This Court had to consider an application similar to that brought by the applicants in this case in Jessica Trading Co. Ltd. v. Bendel Insurance (supra). In that case like the present, the applicants therein sought for an amendment to their pleadings in this Court. In that case, Kutigi, J.S.C. said at pages 548 thus:-

“In the instant case it is evident from the Writ of Summons and the Statement of Claim that plaintiff/applicant’s claim was for N319,884.19 (See paras. 38 & 39 of the Statement of Claim (which superceded the Writ herein). At the trial court judgment for N277,513.18 was entered for it. That judgment was then set aside by the Court of Appeal, hence the appeal to this Court. What was claimed in paragraph 39(i) of the Statement of Claim was N319,884.19 being damages for breach of contract of 3/4/79 only. There was no claim for interest of 13years at the rate of 13% as now sought to be amended. There was equally no claim for general damages either in the writ or in the statement of claim. The applicant is also now seeking to amend the figures N319,884.19 wherever they appear in paras, 38 & 39 of the Statement of Claim to read $207,250.50 plus 10% interest.’ In addition while the original claim was based simply on a breach of contract; it is now being amended and expanded to include an action in negligence thus – ‘the defendant was negligent, breaking also its statutory duties under Insurance Act 1976.’”

Now returning to the instant case, the applicants by their amended Statement of Claim at paragraph 21(b) merely asked for “Account of all monies paid into the debited against 2nd Plaintiff’s Account or Account with the Defendant from 1986 till date and reversal of all wrongful and illegal debits made by the defendant on the said account from 1986…” Whereas by the proposed amendment the applicants are seeking for “an order of Court directing the defendant to refund the sum of N239,143.00 plus accrued interests from 1982 up to date of judgment and/or payment at the ruling Bank rate from year to year as stipulated by the Central Bank of Nigeria and/or in the alternative.”

It does not need any special knowledge to recognise that the proposed amendment to paragraph 21(b) of the amended Statement of Claim is totally different from the original paragraph 21(b). By this amendment the applicants are now seeking for the refund of the sum of N239.143.00 which was not pleaded originally, and interests from 1982 up to date of judgment. They have not even pleaded the rate of interest that would apply, but a general averment that interest would be as stipulated by the Central Bank.

While it is evident from the records that the 1st applicant did give evidence concerning the refund of N239,143.00, there was no evidence concerning interest rates on the said sum and that it would be from 1982, (not 1986), as previously pleaded.

It is clear from the principles governing whether a party in a civil suit would be granted leave to amend his pleadings or not depends on a number of factors. The Court in the process is required to maintain its neutral position and ensure that parties are bound by their pleadings. In effect, although parties must therefore ensure that in their pleadings, they set out clearly such facts upon which they rely for their case. It is also recognised that sometimes, to obviate ambiguity or to aver some more facts, a party may amend his pleadings upon some of the principles I have identified above. A party may therefore amend his pleadings before the end of hearing or judgment and sometimes on appeal. See Oguma v. International Bank for West Africa (1981) 2 NWLR (Pt.20) 124; Salami v. Oke (1987) 14 NWLR (Pt. 63) 1; Ezeani v. Onwordi (1986) 4 NWLR (Pt. 33) 27. The appellate Court can even make such amendment in so far as it will not be to the disadvantage of the other side or occasion a miscarriage of justice. Kate Enterprises Ltd. v. Daewoo (Nig.) Ltd. (1985) 2 NWLR (Pt. 5) 116.

From all I have said above. I am of the firm view that the proposed amendment, if accepted, would result in the changing of the nature of the action between the parties. It is evident as was submitted by the learned Senior Advocate of Nigeria for the respondent that the amendment if granted would be unfair to the respondent, and that contrary to the contention of the learned counsel to the applicants, fresh evidence would have to be called. The case of Osho v. Ape (1998) 8 NWLR (Pt. 562) 492 is certainly not in support of the proposition that amendments could be granted which would be to the disadvantage of the other party to the action. Indeed Wali, J.S.C. made that point very clear in the case of The Shell Petroleum Development Co. (Nig.) Ltd. v. Ambah (1999) 3 NWLR (Pt. 593) 1 at 10, he said, inter alia, thus:

“The principle of law relating to the amendment of pleadings is that it can be granted at any stage of the proceedings provided it does not introduce a new cause of action or will over-reach or is prejudicial to the other party. See Eshelby v. Fed. European Bank (1932) 1 K.B. 254: Loutfi v. Czarnikow Ltd. (1952) 2 ALL ER 823; Akoh v. Abuh (1988) 3 NWLR (Pt. 850 696….”

It follows from what I have said above that by this application the applicants clearly intended to introduce a new cause of action, and if granted it will over-reach and would be prejudicial to the other party. I will therefore refuse the application and it is accordingly refused with costs to the respondent in the sum of N1,000.00 only.

---

SC.161/1998