Union Bank of Nigeria Plc V Mr. David Dafiaga (1999)

LawGlobal-Hub Lead Judgment Report

ROWLAND, J.C.A

This appeal is from a ruling of Omorodion, J., of the Benin City High Court in suit No. 8/116/96 delivered on the 6th of February, 1997.

On the 15th of February, 1996, the Respondent took out a writ of summons in suit No. B/116/96 against the Appellant in the High Court of Edo State, Benin City claiming:-

(a) declaration of the Honourable Court that the purported termination of his appointment vide the Appellant’s letter of 9th February, 1996 is wrong, null and void and contrary to the rules of natural justice;

(b) An order directing the Appellant to pay his due monthly salary and allowances of N13,689.50 per month from 9th February, 1996 until judgment in this action and arrears of half month salary from 14th August, 1995 to 9th February, 1996.

(c) An order that the Respondent be reinstated to his position with effect from the 9th of February, 1996 without loss of either service or seniority.

In the alternative the Respondent claimed the sum of N7 Million as special and general damages for loss of service, damage to reputation and career and the attendant hardship inflicted on him by the Appellant’s wrongful action.

Pleadings were ordered, filed and exchanged. The Respondent filed a Statement of Claim and the Appellant thereafter filed its statement of defence and the matter was subsequently set down for hearing.

The Respondent opened his case on the 15th of July, 1996 and as borne by the record he has not completed his evidence. On the said date, he testified halfway and obtained an adjournment to the 22nd of July, 1996. The Respondent then filed an application for leave to file a reply out of time. The Appellant also filed an application to amend its Statement of Defence in line with the proposed amendment as underlined in red. When the case came up on the 22nd of July, 1996 both applications were taken and granted respectively. The Respondent continued his evidence and again stopped half way. The Respondent subsequently concluded his evidence-in-Chief and cross examination of the Respondent opened on the 31st of July, 1996 and adjourned to the 14th of October, 1996 for continuation at the instance of the court below. On the said date further cross-examination of the Respondent continued before same was further adjourned to the 1st of November, 1996 at the instance of the Respondent’s counsel. On 1st November, 1996 while the Respondent was still in the witness box the Appellant filed an application for leave to further amend its Amended Statement of Defence.

The Respondent filed a counter-affidavit in opposition to the application. The application was heard and dismissed in a considered ruling delivered by the learned trial Judge on the 6th of February, 1997. It is against this ruling the Appellant has, with the leave of this court, filed this interlocutory appeal. The Notice of Appeal containing the grounds of appeal is set out at pages 93 – 95 of the record.

The grounds of Appeal with their particulars read:-

(1) The learned trial Judge erred in law when she dismissed the Appellant’s application for further amendment of the Statement of Defence when the said amendments were material to the issues in controversy and to the defence.

Particulars of Error:

(a) Part of the amendment sought by the Appellant was already in evidence the Respondent having admitted under cross examination that under the contract of service agreement either party has the right to give the other one Calendar month’s notice to determine the employment and that the Appellant has the right to pay to the Respondent one month’s salary in lieu of such notice.

(b) As the Appellant has the same contract of service agreement in terms and conditions for all staff in its employment it was only proper to allow secondary evidence to these terms and condition in relation of termination and/or tender stereotype Contract Agreement or those of others employed at the same period in proof of this fact since the actual one signed and filled by the Respondent is missing and could not be traced.

(c) Since the Respondent’s claim was that his employment was not terminated in accordance with the contract of service Agreement, secondary evidence of the period of notice and/or stereotype Service Agreement which is the usual and common Agreement filled and signed by all staff of the Appellant including the Respondent or those of other staff employed at the same period was material and necessary in determining the real issues in controversy since the actual one filled and signed by the Respondent was missing.

(d) Amendments are made under the rules at any time till judgment for the purpose of curing any defect or error in any proceedings for the determination of the real question or issue therein.

(e) The case of Mrs. Adetulu v. Mrs. Aderohunmu is distinguishable. In that case the Plaintiff had closed her case before the amendment was sought. In the case at hand the Respondent has not closed his case. He is still in the witness box under cross-examination with ample opportunity to call further evidence in proof of his claim in line with the amendments against the Appellant.

2. The learned trial Judge erred in law when she held at page 6 lines 16 – 22 as follows:-

“Also, if the amendment will be prejudicial to the party it should not be allowed. The document sought to be tendered was not what the Plaintiff signed with defendant. I agree with the submissions of learned counsel for Respondent in its entirety and also it is not relevant as it is not a document between the Respondent and defendant. It is my view that it will be unfair and prejudicial to Respondent if the amendment is allowed,”

PARTICULARS OF ERRORS:

(a) From the settled pleadings issues in controversy whether the plaintiff’s employment was terminated in accordance with the Appellant’s Contract Service Agreement which is a common document of the Appellant in its relationship with employees including the Plaintiff and since the actual one filled and signed by him was missing secondary evidence of the terms of determination of employment and/or stereotype at the same period were material and relevant to the determination of the issue in controversy.

(b) The application before the court was for leave to further amend the Statement of Defence and not on admissibility of secondary evidence which the ruling dealt with extensively.

(c) The general principles of amendment stated in the cases of Ojah v. Ogboni & Ors. (1976) 4 S.C. 69 at 75 – 80; Okafor v. Ikeanyi & Ors. (1979) 1 F.N.L.R. 110 at 114 – 115; Felix Akaneme v. Ozoemena (1993) 2 NWLR (Pt.275) pages 345, 354 – 355; General Yakubu Gowan v. Edith Ike Okongwu (1994) 2 NWLR (Pt.326) pages 355, 365; Amadi & Ors. v. Olumati & Ors. (1995) 7 NWLR (Pt.410) pages 739, 755 – 754 support the Appellant’s application”.

From the two grounds of appeal, the Appellant raised one issue for determination. It reads:-

“(a) Whether or not the learned trial Judge exercised her discretion judicially and judiciously in the circumstances of this case by dismissing Appellant’s application for further amendment of its Amended Statement of Defence.”

The Respondent formulated eight issues from two grounds of appeal. They read:-

“1. Whether an abandoned/withdrawn paragraphs of pleading or reliefs can still be incorporated into a ground of appeal as paragraphs of Errors.

2. What is the consequence of a ground of appeal without particulars of error as required by order 3 rule 2(2) of the Rules of this Honourable Court.
3. What is the attitude of the Appeal Court where issues raised by the Appellant do not reflect the grounds of appeal.
4. Whether the lower court properly observed all the necessary principles guiding the granting or refusing of an application for amendment.
5. Whether the proposed amendment sought by the Appellant is not caught by the doctrine of estoppel.
6. What is the implication if an Appellant who is in a position to find out the true situation of this case chooses not to, could he be found complaining that the conduct led to his peril.
7. Whether it is right for a court to grant an amendment where amendment sought is not only to change the nature of the plaintiffs case but also manifestly oppressive as against the Respondent. 8 Whether or not the lower court in refusing the application for further amendment exercised its discretion judicially and judiciously?”

I must say straight away that the Respondent’s brief is a complete violation of the provisions of Order 6 of the rules of Practice of this court.

The Respondent in his brief of argument formulated eight issues from two grounds of appeal. Surely, this amounts to proliferation of issues. The essence of the formulation of the issues is to narrow the relevant points in issue. Since the issues must arise from the grounds of appeal, they are meant to encompass all the grounds of appeal, thus a single issue should contain the points raised in one or more grounds of appeal. In other words, it is the grounds of appeal that should be contracted to form the issues for determination. The rule is that a number of grounds may raise a single issue and not the reverse.

Akpata J.S.C. in Aja v. Okoro (1991) 7 NWLR (Pt.203) 260 at 273 said:”

Issues for determination in any appeal must have direct bearing on the grounds of appeal. They are to project succinctly and clearly the substance of the complaints contained in the grounds of appeal requiring resolution …”

See also A.G., Bendel State v. Aideyan (1989) 4 NWLR (Pt.118) 646; Ogbuanyinya v. Okudo (1990) 4 NWLR (Pt.146) 551; Adelaja v. Fanoiki (1990) 2 NWLR (Pt.131) 137; Egbe v. Alhaji (1990) 1 NWLR (Pt.128) 546. It is absolutely wrong for an Appellant or a Respondent to formulate more issues than the grounds of appeal. See Madagwa v. State  (1988) 5 NWLR (Pt.92) 60. Again the arguments in the Respondent’s brief are not tied to any of the eight issues formulated by the Respondent. The Respondent in his brief wrote a long, winding and prolix legal treatise which has no bearing on the grounds of appeal and the wrong eight issues he formulated in his brief. The brief of the Respondent to say the least, is bad and inelegant. See Akpa v. State (1992) 6 NWLR (Pt.248) 439; Obiora v. Osele (1989) 1 NWLR (Pt.97) 279 at 300.

As the brief of the Respondent cannot be comprehended, I have no alternative other than to treat this appeal in the light of the lone issue formulated by the Appellant.

On issue No. (a), it was submitted for the Appellant that an amendment of pleadings ought to be allowed to enable the trial court to determine the real issue or question in controversy between the parties. It was contended that it is within the rights of the parties in an action to amend their pleadings, be it Statement of Claim or Defence, once it appears to them that the way it is presented to the court it is defective and provided that no real injustice will be done. A number of cases were cited and relied upon. It is the contention of the Appellant that an application for amendment of pleadings can be made at any stage of the proceedings and under certain circumstances, after judgment. Reliance was placed on the cases of Okafor v. Ikeanyi & Ors. (1979) 1 F.N.L.R. 110 at 114 – 115; Felix Akaneme v. Ozoemena (1993) 2 NWLR (Pt.275) 345 at 354 – 355.

The sum total of what the learned counsel for the Respondent wrote in the Respondent’s so called brief is that what the lower court did was proper and correct.

Learned counsel for the Respondent justified the refusal of the further amendment sought by the Appellant.

I must say straightaway that the relevant statutory provisions in Edo State dealing with and governing amendment of pleadings are contained in Order 26 of the High Court (Civil Procedure) Rules, 1988 of the erstwhile Bendel State of Nigeria now applicable to Edo State.

For ease of reference, Rules 1, 2 and 3 of the said Order 26 of the High Court (Civil Procedure) Rules 1988 which provisions I consider to be germane to this appeal are reproduced hereunder:-

“1. The court or a Judge in Chambers may at any time, and on such terms as to costs or otherwise as the court or Judge may think just, amend any defect or error in any proceedings, and all necessary amendments 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 manner and on such terms as may be just, and all such amendments shall be made as may be necessary 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”.

It seems to me from the above Rules that 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 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 Shell B.P. Petroleum Development Co, v. Jammal Engineering (Nigeria) Ltd. (1974) 4 S.C. 33 at Pp. 74 -75. It is well settled law that an amendment of pleadings should be allowed unless –

1. It will entail injustice to the Respondent.
2. The Appellant is acting malafide (See Tildesley v. Harper(1978) 10 ChD 393.
3. By his blunder, the applicant has done some injury to the Respondent which cannot be compensated by costs or otherwise. (See Tildesley’s case (supra); Oguntimehin v. Gubere (1964) 1 All NLR 176 at 179; Amadi v. Thomas Aplin & Co., Ltd. (1972) 1 All NLR (Pt. 1) 409.

The correct 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 (1884) 26 Ch.D. 700 at pages 710 and 711 when he said:-

“I think it is a well established principle that the object of courts is to decide the fights 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 part to have it corrected, if it can be done without injustice, as any thing else in the case is a matter of right”.

Smith LJ. expressed his emphatic agreement with these observations in Shoe Machinery Ca. v. Cutlan (1896) 1 Ch. 108 at page 112. It seems to me that if the learned trial Judge had adverted her mind to the above observations of Bowen, LJ. in Cropper v. Smith (supra) she should have arrived at a different decision. I hold the view that an amendment of pleadings ought to be allowed to enable the trial court to determine the real issue or question in controversy between the parties. It is within the rights of parties in an action to amend their pleadings, be it statement of claim or Defence, Once it appears to them that the way it is presented to the court it is defective provided that no real injustice will be done to the other party. See Chief Ojah Ojah & Ors. v. Chief Eyo Ogboni & Ors. (1976)4S.C. 69 at 75 – 80 where the famous words of Bowen L.J. in Cropper v. Smith (supra) were fully adopted and followed by the Supreme Court of Nigeria. See also Amadi & Ors v. Olumati & Ors. (1995) 7 NWLR (Pt.410) 739 at 741 – 744; 751 – 754; General Yakubu Gowon v. Edith Ike-Okongwu (1994) 2 NWLR (Pt.326) 355 at 365; First Bank of Nigeria Plc. v. Obande Obeya (1998) 2 NWLR (Pt.537) 205 at 217-219; Stanley Aigbe & Anor v. Lucky A. Erhabor & Anor (1998) 7 NWLR (Pt.557) 255 at 261 – 262; 264 – 265.

It must be mentioned also that an application for amendment of pleadings can be made at any stage of the proceedings, and under certain circumstances, after judgment. See Okafor v. Ikeanyi & Ors. (1979) 1 FNLR 110 at 114 – 115; Felix Akaneme v. Ozoemena (1993) 2 NWLR (Pt.275) 345 at 354 – 355; Chief Ojah & Ors. v. Chief Eyo Ogboni & Ors. (supra) In this appeal as manifest from the record the appellant deposed in paragraphs 7, 8 and 9 of the affidavit in support of the application for further amendment that the exact copy of the Contract of Service Agreement filled and signed by the Respondent was missing and/or could not be traced and that all the forms of Contract of Service Agreement are the same and as those filled and signed by other employees much so as the Respondent himself admitted under cross-examination that the Contract of Service Agreement provides for either party to give one month’s notice or one month’s salary in lieu of notice for the determination of the employment.

It must be noted that the Respondent is still in the witness box with ample opportunity to also amend his Statement of Claim and thereafter call further evidence if he so desires before the Appellant could be called upon for its defence. More so when part of the amendment was in line with the evidence extracted under Cross-examination on issue or questions in controversy between the parties.

It is manifest from the record that the Respondent admitted under Cross-examination that under the Contract of Service Agreement either party has the right to give one month in lieu of notice to determine the relationship, and that the one he signed had such a term giving the Appellant right to pay one month’s salary in lieu of notice. Throughout the counter affidavit filed by the Respondent there were no facts to show in what manner the Respondent will be prejudiced and overreached if the Appellant was allowed to further amend its Statement of Defence. There was also no issue of any injustice to be suffered by the Respondent shown in the said counter affidavit. It was also shown at the court below by the Appellant that the purpose of the further Amended Statement of Defence was to enable the Appellant adduce secondary evidence of the misplaced Contract of Service Agreement which was a common and usual document of the Appellant whose terms and conditions are the same for all staff and normally filled and signed by all employees of the Appellant.

As held in Chief Ojah & Ors. v. Chief Eyo Ogboni & Ors. (supra) it is the right of the parties to present their cases in the way it appears best to them. In the case of Stanley Aigbe & Anor. v. Lucky Erhabor & Anor (supra) this court held inter alia that it is counsel who knows his clients case better than the court and it is for him to determine whether or not the amendment sought would adequately place his client’s case either on a firmer ground or more lucidly before the court and that such a determination ought not to be impeded by the trial court.

Also in the case of Amadi & Ors v. M. Olumari & Ors. (1995) 7 NWLR (Pt. 410) 739 at 754, the Court of Appeal, Port Harcourt Division, held inter-alia”

that pleadings could be amended at any stage of the case even after the close of evidence, provided that it did not introduce a new cause of action or take the other party by surprise”. In the case in hand it is manifest from the record that the Respondent/Plaintiff was yet to close his case and as such the amendment sought by the Appellant was not too late and no injustice could have been done to the Respondent who was yet to close his case as he had the opportunity to adduce further evidence in support of his claim.

At this point in time I consider it necessary to examine the Appellant’s Reply Brief. It seems to me from the facts and the law governing this appeal, it is unnecessary to file a reply brief as the Respondent’s brief as I have said earlier is bad, inelegant and clumsy. It is also meaningless as it formulated 8 issues from two grounds of appeal and the points canvassed in the legal treatise of the Respondent are irrelevant to the issues involved in this appeal. The reply brief of the Appellant to my mind amounts to a barren exercise as the law on amendment of pleadings can now be said to be settled from all I have said above and the cases cited.

In conclusion it seems to me that the trial court did not exercise its discretion judicially and judiciously when it refused the Appellant’s application for further amendment.

In the light of the foregoing, this appeal must succeed and I accordingly allow it. I set aside the ruling of the lower court and ‘allow the Appellant’s application for further amendment of its Statement of Defence. The Appellant is entitled to costs assessed at N1,500.00 against the Respondent.

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Other Citations: (1999)LCN/0520(CA)