In The Court of Appeal
(Ilorin Judicial Division)
On Thursday, the 8th day of November, 2012
Suit No: CA/IL/41/2011
Before Their Lordships
PAUL ADAMU GALINJE....... Justice, Court of Appeal
ITA GEORGE MBABA....... Justice, Court of Appeal
OBANDE F. OCBUINYA....... Justice, Court of Appeal
ALHAJI FOLORUNSHO IYANDA KANUBI & ANOR Appellants
CHIEF SUNDAY OLAGUNJU & ANOR Respondents
ITA G. MBABA, J.C.A, (Delivering the Leading Judgment): The learned trial Judge, S. M. Akanbi J. of Kwara State High Court, Offa Judicial Division, had, on 14/12/2010, refused the application by the Defendants (now Appellants), filed on 21/4/2010, seeking for an order of the trial Court to amend the Defendants' Statement of defence, to incorporate some facts and materials which they (Defendants) claimed to have been inadvertently omitted in the original statement of defence. This appeal is against that Ruling of the learned trial judge.
The main Suit before the lower Court, (Suit No. KWS/OF/14/2010) was initiated by writ of summons, and the claims, as per Statement of Claim, filed by the plaintiff, were:
"(1) A Declaration that the 2nd Defendants purported appointment of the 1st Defendant as the Onikotun of Ijagbo a high Chief and Kingmaker, is contrary to the tradition, native law and custom of Ijagbo and consequently null and void.
(2) A Declaration that it is incompetent for the 2nd Defendant to recognize any person as Onikotun of Ijagbo outside the Claimants' family of Onikotun Oke in Ijagbo.
(3) A Declaration that the 1st Claimant was validly appointed as Onikotun of Ijagbo, a Kingmaker by the Onikotun Oke family whose duty it is under native law, custom and tradition of Ijagbo, to appoint, since 26th December, 2002.
(4) An Order of perpetual injunction restraining the 1st Defendant from acting purporting to act or parading himself as Onikotun of Ijagbo for whatever purpose and at any gathering whatsoever.
(5) An Order of perpetual injunction restraining the 1st Defendant from dealing with, recognizing or treating the 1st Defendant for whatever purpose and at any gathering whatsoever as Onikotun of Ijagbo, a high Chief and a kingmaker." (Page 11 of the Record of Appeal).
The Defendants had filed their statement of defence to the claim, but on 21/4/2010, they filed the said motion to amend their pleading. They also prayed for an Order "granting leave to Defendants/Applicants to substitute new witnesses statements on Oath in line with the proposed amendment with the old written statement on oath accompanying the original statement of Defence."
The grounds for bringing the application were:
(i) The Defendants/Applicants had before now filed a joint statement of Defence.;
(ii) There are relevant and material facts which were inadvertently omitted in the original statement of Defence;
(iii) The Suit cannot be effectively and effectually determined without the relevant and material facts omitted.
(iv) There is the need to substitute new written statement on Oath for the existing ones so as to correct and reflect a proper piece of evidence;
(v) It becomes imperative to file additional witnesses statement on oath in view of the proposed amendment;
(vi) The omitted relevant and material facts are germane to the just determination of the case of the Defendants;
(vii) There is the need to seek the leave of this Honourable Court before the relevant and material facts omitted can be incorporated in the proposed amendment;
(viii) The Court has the jurisdiction to entertain this application." (Pages 52 - 53 of the Records of Appeal).
In his Ruling the learned trial Judge, while refusing the application, said:
"I have therefore not seen good reason averred in the affidavit in support to warrant granting this application as amendment is to me not made (sic) good faith as to allow such amendment will prejudice the case of the respondent and change the nature of the defence from the delay unnecessarily caused 4 years after process of court are served on the defence in such amendment. If allowed will unfairly prejudice the other party. See ADEKEYE & OTHERS VS. AKIN OLUGBADE (1987) 6 SCN (sic) page
137; AKANNI & OTHER (sic) VS, SIRIM (2008) ALL FULR (sic) at 659."
He then adjourned the case for pre-trial conference.
Appellants filed their Notice and grounds of Appeal on 22/12/2010, after obtaining the leave of the lower Court to appeal against the Ruling on the same 22/12/2010. They formulated 3 grounds of Appeal, as follows:
"(1) The learned trial judge erred in law when he use delay as a basis for refusing the Appellants' application for amendment thereby failing to appreciate the essential principles governing amendment, which error occasioned a grave miscarriage of justice.
(i) Amendment can be made at any stage of the proceeding before judgment
(ii) Trial has not commenced in the case before the trial Court.
(iii) There is no specific time an application for amendment can be made.
(2) The learned trial Judge erred in law when he held that granting the amendment sought will overreach the plaintiffs and that it will change the character of the case, there by reaching a wrong and perverse conclusion.
(i) Trial has not commenced in the Suit;
(ii) Whatever amendment that is made can be met by the plaintiffs by filing consequential amendment or reply;
(iii) Plaintiffs have the right to meet the amendment; hence they cannot be prejudiced;
(iv) If is the claim of the plaintiffs that determines the jurisdiction of the case;
(v) The proposed amendment is to articulate the Defendant's defence to the plaintiffs' case.
(vi) A Defendant who is defending a case cannot change the character of the case.
(3) The learned trial Judge erred in refusing the Appellants' application for amendment by which Appellants sought to bring crucial and material facts before the Court, Particularly Supreme Court Judgment in William Akanbi vs Yakubu (1973) 12 SC1 and Adeyede vs Ajiboye (1987) 3 NWLR (Pt.61) 432.
(i) An amendment will be allowed to enable a party put or place before the Court all relevant and crucial issues before the Court;
(ii) the Supreme Court in William Akanbi Vs. Yakubu and Adeyeye vs Ajiboye (supra) made far reaching pronouncement which have bearing on the case before the Court.
(iii) Appellants amendment sought to plead facts to enable them tender and rely on the Supreme Court decision
(iv) The High Court has a constitutional duty to give effect to the judgment of the Supreme Court;
(v) By refusing the amendment, the trial judge has fore closed the Appellants' desire to tender and rely on the fore said Supreme Court judgments;
(vi) The claim before the Court cannot be justly determined, without considering the above referred Supreme Court judgments." (Pages 152 to 154 of the Record of Appeal).
Appellants filed their Brief of Argument on 15/12/2011, after being allowed extension of time to compile and transmit the Record of Appeal. That was on 1/11/11, where upon the Record of Appeal, compiled and transmitted to this Court on 6/6/2011 was deemed duly done. They also filed a Reply Brief on 5/7/2012, on being served with the Respondents' Brief.
Appellants distilled a lone issue for determination, namely:
"Whether in the circumstance of this case, the learned trial judge properly exercised his discretion in refusing the Appellants' application for leave to amend their Statement of Defence" (Grounds 1, 2 and 3).
The Respondents' Brief was filed on 22/6/2012 and deemed duly filed on 28/6/2012. The Respondent also distilled, a lone issue:
"Whether or not the Court below rightly exercised its discretionary power by refusing the application for amendment and substitution of the entire deposition on oath of Appellants' witnesses for new ones."
Of course, the issues as distilled by the two sides are the same, except for phraseology.
Appellants argued that as shown in their supporting affidavits, the amendment sought was germane and fundamental to the case of Appellants and that the case could' not be effectively and effectually determined without the relevant facts and materials sought to be incorporated in the Appellants' Statement of defence. They submitted through their Counsel (Lukman L. Akanbi Esq. who filed the Brief), that the law is trite that a party can validly amend his process before a court at anytime before judgment; that the Court ,would ordinarily grant such an amendment, where it would allow the court to effectively decide the dispute between the parties; that amendment can even be made at appeal level, even at the Supreme Court. Counsel relied on the case of ABAH VS. JABUSO (2008) 3 NWLR (Pt.1065) 526 at 545.
Counsel further submitted that the trial Court failed to appreciate the purport and tenor of the principles of amendment as enunciated in plethora of authorities, when he held that the amendment sought, if allowed, would change the nature of the claim and over-reach the claimant, relying on Okolo vs. UBN (1998) 6 SCNJ 1gg at 213; that the Court, by so saying, did not even demonstrate how the amendment would over-reach the claimants. Thus, counsel said the lower Court was speculating, and it should not. He relied on the case of Ikenta Best Nig. Ltd vs. A.G. Rivers State (20008) 6 NWLR (Pt.1084) 6712.
Counsel further argued that the trial court failed to appreciate the meaning of amendment, the scope of amendment of the defendants' pleading, the rules guiding amendment of pleadings, and the reasoning therefore. Counsel relied on the Black's Law Dictionary 7th Edition Page 81 for the definition of 'Amendment' - "A change made by addition, deletion or corrections; an alternation in awarding."
Counsel also relied on the case of FBN PLC. VS. MAY MED CLINICS (1996) 9 NWLR (Pt. 471) 195 at 201; FBN PLC VS. TOSKWA (2000) 13 NWLR (Pt 685) 521 at 530; Awote vs. Owodunni (1986) 5 NWLR (Pt. 46) 941; Azi vs. Registered Trustees of Evangelical Churches (1991) 6 NWLR (Pt. 195); Abu vs. Ogli (1995) 8 NWLR (Pt. 413) 353.
On the reason given by the trial judge for refusing the application, that the amendment will change the nature of the defence, Counsel said that was no sufficient reason and relied on the case of Ita vs. Dazie (2004) 4, NWLR (Pt. 652) 168 at 182, which said:
"It must be emphasized that if is wrong to hold the view that an amendment is fraudulent, intended to over-reach or prejudicial or cause the other side an irreparable loss merely because, if the amendment is allowed, the other party's case will collapse and this, of course, will collapse and this, of course, will not be enough reason to refuse the amendment."
He argued that justice demands that in order to determine the real matter in controversy, pleadings may be amended at any stage of the proceedings, even in the Court of Appeal or the Supreme Court. He relied on the case of Laguro vs. Toku (1992) 2 NWLR (Pt. 223); Ojah vs, Ogboni (1976) 41 SC. 61 at 76 and. CONCORD PREN (Nig.) Ltd vs. OBIJO (1990) 7 NWLR (Pt.162) 303.
He added that the Respondents were entitled to a reply on the issues raised in the proposed amended statement of defence; that it is common to make mistake while preparing pleadings, hence the provision for amendment as per the rules of Court; that the object of the Court is to decide matters on the rights of the parties and not to punish them for mistakes made in the conduct of their case; that refusal of the application would deny or deprive the Appellants the right to put the real question in controversy for determination. Counsel relied on the case of Akinniwo & Ors vs. Nsirim (2005) 9 NWLR (Pt. 1093) 439 at 462 - 463 (which he quoted extensively).
He said that the two cases William Akanbi vs. Yakubu (1993) 12 SC. 1; Adeyeye vs. Ajiboye (1987) 3 NWLR (Pt.61) 432, which Appellants wanted to incorporate into their defence (pleadings) have bearing on the issues in the case before the trial Court and they should not have been refused, especially as the hearing was yet to commence.
Counsel further argued that a defendant who is defending a Suit cannot change the character of the Suit defended and should not be stopped from articulating his defence to the plaintiffs case the way he considers fit; that there is no limit of time to bring application for amendment. He relied on the case of UBN PLC, Vs. SPARKLING BREWERIES LTD (1997) 3 NWLR (Pt.491) 29 at 50; GAMBARI vs. MAHMOUD (2008) 14 NWLR (Pt.1107) 209 at 223.
Counsel further submitted that the aim of an amendment is to prevent manifest justice of a cause from being defeated on the basis of slips, which arose from negligence of counsel; that it will certainly be wrong to visit the inadvertence or mistake of counsel on the litigant; that the courts have, through the years, taken a stand that however negligent or careless the slip may have been, however late the proposed amendment, it ought to be allowed. CELTEL NIG. LTD. VS. ECONET WIRELESS LTD. (2011) 3 NWLR (Pt. 1233) 156 at 167 - 168.
Counsel urged us to allow the appeal.
The Respondents' Counsel. Adewale S. Oseni Esq. submitted that application for amendment of pleadings and substitution of witnesses, deposition, like other equitable reliefs, are not granted as a matter of course, just for the asking; that for the applicant to be entitled to the indulgence of the Court, he is expected to proffer cogent, credible and convincing reasons in favour of the application; that in this application the learned trial judge had ruled:
"I have therefore not seen good reason averred in the affidavit in support to warrant granting this application as the amendment to me is not made in good faith as to allow such amendment prejudice with the case of the Respondent..."
Counsel submitted that the lower Court was right, as no fact in the supporting affidavit justified , an, amendment to add 47 new paragraphs consisting of new facts and substitute the entire existing witnesses and depositions on oath; that what the Appellants sought was an abandonment of their original case in the guise of amendment; that Appellants failed to discharge the fundamental burden required for a grant of application for amendment. He relied on the case of Bank of Barodo vs Merchantile Bank (Nig.) Ltd (1987) 6 SCNJ 165 at 173.
Counsel submitted that in an application for amendment of pleadings, the Court is always guided by a number of factors, including:
(a) the attitude of the parties in relation to the amendment;
(b) the nature of the amendment sought in relation to the Suit.
(c) the question in controversy, and
(d) the time and stage when the amendment is sought.
Counsel relied on the case of Akininwo vs Nsirim (2008) ALL FWLR (Pt.410) 610 at 656 - 657 and submitted that the attitude of the Appellants, how they went about prosecuting their defence, clearly showed that they were unworthy of favourable exercise of discretion by the Court. He relied on the findings of the trial Court on page 148 of the Record of Appeal, when he said:
"The applicants have been absent from court despite being aware of this case."
Counsel said that that finding justified the decision of the trial Court; that the Record showed that the Statement of Defence and depositions, which the Appellants sought to abandon, were filed almost 2 years after they were served with the writ of summons and Statement of claim. He added that the suit was instituted since 2006, and the Appellants filed their Statement of defence almost 2 years after; the Respondents filed their Reply to the Statement of Defence and the case was for Pre-hearing Conference, only for the Appellants to come with application for amendment of their said pleadings on 26/5/2009, which they later withdrew to give way for the one, which is the subject matter of this appeal; that all that was done to delay the just determination of this case, over-reach the claimants and prejudice them! He relied on the case of George Odon vs. Chief Nimi Barigh-Amange (2010) ALL FWLR (Pt.521) 1541 at 1547- where it was held:
"An amendment that will cause undue delay should not be granted." See also Adekeye vs Alain Oluabade (1987) 6 SCNJ 127 at 137.
Counsel, on the extent of the amendment sought, submitted that there was no way a whopping 47 new paragraphs would be added to the original 30 paragraphs of the Statement of Defence, and completely change the existing witnesses and their depositions that the Respondents would not be over-reached; that that would completely change the nature of the defence, delay the case unduly, and prejudice the Respondents, denying them fair hearing, especially as the 47 new Paragraphs contained new facts and new deposition.
Counsel added that the amendment sought was not within the internment and contemplation of order 28 Rule of the Kwara State High Court (Civil Procedure) Rules, 205. He relied on the case of Aderohunmu Sanni vs. Oba Kamaldeen Aldulsalam (2010) ALL FWLR (Pt.528) 966 at 988 to submit that:
"An application for amendment of pleadings will be refused, where it is designed to over-reach or outsmart the adverse party, with a view to win a cheap victory or any victory at all. An amendment that is so designed will not be permissible." (See also Chief Adedapo Adekeye vs. Chief O.B Akin Olugbade (supra).
Counsel added that such amendment, if allowed, will radically change the nature of the defence, bring a lot of confusion, and compromise the Respondents constitutional right to fair hearing. He relied on the case of Chief F.A. Adekanye vs Grand Series Ltd (2007) ALL FWLR (Pt.387) 855 at 866-867; Ajah & Ors vs Ogboni & Ors (1976) 11 SC 61 at 76
On the need for their appellate to respect the exercise of discretion of the trial Court, when done judicially and judiciously, the Respondents' Counsel retied on the case of 7UP Bottling Co. Ltd vs. Abiola & Sons Nis Ltd. (1995) 3 SCNJ 37 at 47
Counsel urged us to dismiss the appeal and affirm the decision of the trial Court.
Appellants' Reply brief picked some quarrel with the language used by the Respondents' Counsel in paragraphs 2.03, 2.05, 5.13 and 5.14-5.15 (pages 3, 6, 7 and 8 respectively) of the Respondents' Brief, saying that the same were derogatory; that counsel has a duty to be civil and courteous in their language.
Of course, those were admonitions to Counsel, not really objection on any point of law. I could not, however, spot any offensive or derogatory language in the Respondents' brief. The other points raised in the Reply Brief, in my view, are further argument of the Appeal by the Appellants, as no tangible issue of law, different from what had earlier been argued, was raised on the Respondents' Brief.
RESOLUTION OF THE ISSUE;
The position of the law is trite, that amendment of pleading can be done at any stage of the proceedings,, once that is necessitated by the need to bring out the real issues in controversy before the Court, to enable the case to be effectively and effectually determined, in the interest of justice. Authorities are replete on this. See Akinniwo and Ors vs. Nsirim (2008) 9 NWLR (Pt.1093) 439; Abah ys. Jabuso (2008) 3 NWLR (Pt.1065) 526; Kode vs. Yusuf (2001) 14 WRN 153; LAGURO vs. Toku (1992) 2 NWLR (Pt.223).
In the case of World Gate Ltd vs. Senbanjo (2000) 4 NWLR (Pt.654) 669 the limit placed on amendment of pleading was, where it would introduce fresh cause of action, which did not exist at the time of filing the writ. In that case, this court held:
"An amendment mainly for the purpose of determining the real issue(s) in controversy between the parties ought to be permitted at any stage of the proceedings even where the action had been reserved for judgment or appeal, provided:
(a) the applicant is not acting mala fide or trying to over-reach the other party;
(b) the amendment will not entail injustice or embarrassment or surprise to the other party;
(c) by his blunder, the applicant has done injury to the other party which cannot be ameliorated by costs or otherwise assuaged.
An amendment which is intended by a party to change the nature of the case before the Court will generally be refused, because it is not made bona fide but mala fide and intended to overreach the other party. (Odaditi vs. Sunglas Co. Ltd (1994) 1 NWLR (Pt.321) 433 referred to)"
The learned trial judge's reason for refusing the application for amendment of the Defence's pleading in this case was that:
"The amendment - being sought.... is applying to substitute witnesses and a departure from the original line of defence and allowing a 47 new paragraphs wilt definitely over-reach the claimants and amendment of such a nature to change the nature of the claim is not allowed. See Okolo vs. UBN (1998) 6 SCNJ 193 at 213."
The learned trial judge, as pointed out by the Appellant's Counsel, did not, however state how, in his opinion, the amendment sought would overreach the Respondents. He appeared to have been frightened by the magnitude of the scope of the proposed amendment (47 new paragraphs), and concluded that such would change the nature of the claim!
While it is trite that amendment of pleading will not be allowed to satisfy mala fide intentions, to over-reach an opponent, such mala fide motive has to be clearly disclosed and x-rayed by the party fighting against the application for amendment, and I think, it should be disclosed how the amendment would over-reach the opponent, if granted.
It is difficult to figure out how the amendment, proposed by a defendant, can change the nature of the Claim before the Court, to justify denying a defendant the right to amend his process. It is the claimant (Plaintiff) that initiates a suit and holds the swing on what constitutes the cause of action in the case. The Defendant's duty is to react to the claim of the Claimant by either admitting: or denying the claim (in full or in part). I cannot therefore imagine a situation, where, the defence filed by the defendant, or an amendment proposed by him to his defence, can have the effect of changing the nature of the claim of the plaintiff before the Court. Of course, where that is contemplated, it would mean that the claim of the Plaintiff is not denied by the defendant!
Amendment of a process in Court, particularly pleading, can entail a complete change of the process, even by way of substitution. It can be a simple correction of some line(s) or paragraph(s) of a document by adding or deleting letter(s) or word(s) intended, to bring out the real issue(s) in controversy in the case for proper adjudication. In the case of FBN PLC vs. TOSKWA (2000) 13 NWLR (Pt.685) 521, at 530, this Court, per Chukwuma Eneh JCA (as he then was) held (relying on Oputa JSC in Awote vs. Owodunni (1986) 5 NWLR (Pt.46) 941) that:
"...amendment connotes "an alteration, an addition or subtraction! Without being exhaustive, it has been held to embrace substitution."
See also the case of ITA VS. DAZIE (2000) 4 NWLR (Pt.652) 168 at 182, where the position of the law, on the concept of amendment, was stated as follows:
"It must be emphasized that it is wrong to hold the view that an amendment is fraudulent, intended to over-reach or pre-judicial or cause the other side an irreparable loss merely because if the amendment is allowed, the other party's case will collapse, and this course will not be enough reason to refuse the amendment."
I think the learned trial judge was unduly apprehensive that Appellants were out to prolong or delay the trial of the case further by bringing the amendment, when he said:
"The applicants have been absent from Court despite being aware of this... case; more so a case that has the applicant long after 4 years of service of processes that should be send (sic) to be brought in good faith (sic). I have therefore not seen good reason averred in the affidavit in support to warrant granting this application, as amendment is to me not made in good faith as to allow such amendment wilt prejudice the case of the respondent and change the nature of the defence from the delay unnecessarily caused 4 years after process of court are served on the defence in such amendment. If allowed will unfairly, prejudice the other party (page 148 of the Record).
Appellants had in their supporting affidavit to the motion for the amendment, filed on 21/4/2010, among other things, averred in paragraph 5 (iii) and (iv) as follows:
"That it was not until early this week when he was going statement of through the Defence filed that he realized that so many historical facts which are material to the case of the Defendants/Applicants are not contained in the Statement of Defence filed; that this case cannot be effectively and, effectually determined without the omitted relevant facts and materials."
The amendment was sought to plead those relevant facts and material, omitted in the statement of defence, and they were dutifully underlined in about 47 paragraphs of the 77 paragraphed proposed Amended statement of Defence. See pages 55 and 61 to 70 of the Record of Appeal.
It was therefore strange for the learned trial judge to say that he did not see "good reason averred in the affidavit in support to warrant granting this application...", when Defendants had made it clear "that so many historical facts which are material to the case of the Defendant/Applicants are not contained in the Statement of Defence filed" and "that this case cannot be effectively and effectually determined without the omitted relevant facts and materials."
I think to refuse the application for amendment, in such circumstance, is to deny the defendants the opportunity to prepare and present their defence to the action, and that would certainly compromise Appellants, fundamental rights to fair hearing under Section 36 (1) of the 1999 Constitution.
By paragraph 4 of the affidavit in support of the motion for amendment, it was clear that the counsel (L.L. Akanbi Esq.) who prepared the original statement of Defence was different from the one (Counsel) who made the application for amendment (that is, Lateef O. Fagbemi SAN), although they were of the same chambers. At least, the chambers had opportunity to review their processes and to correct their mistakes, which is normal and permissible. And there is always room for mistake and error, and for correction of the same in Court processes, and that is the whole essence of the rules permitting amendment of Court processes. A party cannot be foreclosed to seek to correct himself or his error, as long as that correction will not visit injustice or prejudice on the adverse party. And nobody, not even the Court, is immune to error or mistake, to escape recourse for or resort to correction, and to be corrected. That of course, is why the law makes provision for amendment of processes and for appeal, in respect of error by the Court.
The provision for amendment of process is meant to prevent injustice or to ensure that justice is not defeated on the strength of negligence or error/in-advertence of Counsel, which can be corrected. The Court has always been in favour of allowing amendment, however negligent, or careless the slip, or however late in seeking the proposed amendment, provided the opponent is not prejudiced. See the case of CELTEL (Nig.) Ltd Vs. ECONET WIRELESS LTD (2011) 3 NWLR (Pt.1233) 156 at 157.
In this case the trial of the case is yet to commence, and the Respondents have a right to consequential amendment of their processes too (if any), upon the grant of the ,,application for amendment of the Statement of Defence, and so the Plaintiffs do not stand to suffer any adversity by the grant of the application.
I therefore hold that this Appeal is meritorious and is accordingly allowed.
Appellants had prayed for the grant of the motion for amendment. In keeping with the provisions of Section 15 of the Court of Appeal Act, 2004 and Order 4 Rules 3 and 4 of the Court of Appeal Rules, this Court has power to give any such relief that the trial Court was expected to give, which the justice of the case demanded. Having held that the trial Court was wrong to have refused the application for amendment of the Statement of Defence by the Applicants, it is needful to set aside that Ruling of the trial Court and to replace it with an order of grant of that application.
Accordingly the Ruling of the trial Court is hereby set aside and the application of the Defendants/Applicants to amend their Statement of Defence, in line with the proposed amended Statement of Defence exhibited to the motion for amendment, filed on 21/4/2010 is hereby granted. Defendants/Applicants shall file the said Amended statement of defence, forthwith, at the lower Court and serve same on the Respondents, who shall be free to file a reply to the amended statement of defence, if any, for the hearing of the suit on the merit.
Parties shall bear their respective costs of this appeal.
PAUL ADAMU GALINJE. J.C.A.: I read in advance the judgment just delivered by my learned brother, Mbaba, JCA and I agree with the reasoning contained therein and the conclusion arrived thereat.
Generally an amendment of pleading for the purpose of determining the real question in controversy between the parties ought to be allowed at any stage of the proceedings unless such amendment will entail injustice or surprise or cause embarrassment to the other party or where the applicant is acting mala fide or by his blunder the applicant has done some injury to the Respondent which cannot be compensated by cost or otherwise.
See Ibanga & 2 Ors as Chief Usanga (1982) 5 S.C 103; Adetutu vs Aderohunmu (1984) 15 NSCC 389 @ 396 paragraph 3; Chief Okafor vs Ikeanyi 2 Ors (1979) 3 and 4 S.C.99.
Where a defendant seeks for leave to amend the statement of defence, such leave will be refused only if new issues are introduced after the plaintiff has closed his case. Where the plaintiff has not closed his case, the court should allow introduction of those new issues in order to determine all issues in controversy between the parties at once, since the plaintiff is at liberty to react to those issues in reply. See Adetutu vs Aderohunmu (supra) @ 396 paragraph 2.
In the instant case the plaintiffs had not closed their case. The court was therefore wrong in its exercise of discretion.
For this reason and the more detailed reason in the lead judgment, I join my brother Mbaba JCA in allowing this appeal. I endorse all the consequential orders made therein, including order as to cost.
OBANDE OGBUINYA, J.C.A: I have had a preview of the succinct judgment delivered by my learned brother, Ita G. Mbaba, JCA. I, completely, endorse his reasons and conclusions therein.
The appellants' application for amendment of their statement of defence, which culminated into this appeal, was an invitation to the lower court to exercise its discretion in their favour. It is not the habit of the appellate courts to interfere in the exercise of discretion which, in law, connotes, the power or right of a judex or a public functionary to act according to the dictates of his own personal judgment and conscience uninfluenced by the judgment or conscience of others, see Suleiman vs. COP, Plateau State (2008) 8 NWLR (Pt. 1089) 298; Ajuwa vs. SPDCN Ltd. (2011) 18 NWLR (Pt. 1279) 797.
Nevertheless, where an exercise of discretion is not executed judicially and judiciously as mandated by law, as in the instant case, an appellate court, such as this court, is in law and justice duty bound to tinker or tamper with it, see Waziri vs. Gumel (2012) 9 NWLR (Pt. 1304) 185. The lower court did exactly what the law prohibited it from doing in this genre/specie of application for amendment of pleadings. The decision of the lower court was a quintessence of an injudicious exercise of its discretionary power which renders same liable to expunction by this court. On this score, I resolve the lone issue against the respondents.
For the above reason, in conjunction with detailed ones marshalled out in the leading judgment, I, too allow the appeal and abide by the consequential orders made therein.
H.O. Afolabi Esq.,
L. L. Akanbi Esq., For the Appelants
A.S. Oseni For the Respondents