IN THE SUPREME COURT OF NIGERIA
ON THURSDAY, THE 15TH DAY OF APRIL 1976
CHIEF OJAH OJAH & ORS .................................................... APPELLANTS
(for themselves and as representing the Community of Etono 2 Village, Akamkpa Division)
CHIEF EYO OGBONI & ORS ....................................................... RESPONDENTS
BEFORE: Sowemimo, Irikefe and Madarikan JJ.S.C.
Whilst the case for the defence was still being presented, the plaintiffs sought leave to amend their statement of claim (a) so as to sue in a representative capacity and (b) so as to bring their pleadings in line with vital evidence already given, and the application was rejected by the learned trial Judge on the ground that it should have been brought earlier in the proceedings. The plaintiffs appealed against the ruling.
In the light of Order 4, r.3 and Order 34 of the High Court Rules of the State, the trial Judge proceeded on wrong principles in refusing the amendments sought: an amendment of pleadings should be allowed unless:-
(a) it will entail injustice to the respondent;
(b) the applicant is acting mala fide; or
(c) by his blunder, the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise.
Cases referred to:
Duke & Ors v. Henshaw (1974) 10 W.A.C.A. 27, distgd.
Tildesley v. Harper (1878) 10 Ch.D. 393 at 396
Oguntimehin v. Gubere (1964) 1 ALL N.L.R. 176 at 179
Amadi v. Thomas Aplin & Co. Ltd. (1972) 1 All N.L.R. 409
Cropper v. Smith (1884) 26 Ch.D. 700 at 710-711
Shoe Machinery Co. v. Cutlan (1896) 1 Ch. 108 at 112
England v. Palmer (1955) 14 W.A.C.A. 659 at 661
Loutfit v. C. Czarnikow Ltd (1953) 2 ALL E.R. 823 at 824
The Alert (1895) 72 LT 124
APPEAL allowed. Amendments deemed to have been granted; case remitted to lower court for continuation.
O.A. Esin for Appellant.
O.I. Orok for Respondent.
O.I. Orok (O.E.H. Ekienyong-Effa with him) for 7th respondent.
Madarikan, J.S.C. (delivering the judgment of the Court):-In suit No. C/84/73, the plaintiffs took out a writ of summons endorsed as follows:-
"Plaintiffs' claims against the defendants, jointly and severally, are as follows:-
(1) A declaration that the plaintiffs are lessors of about three-fifths of the Biakpan Rubber Estate land held on lease by the 7th defendant.
(2) An order directing the defendants to pay over to the plaintiffs the sum of
N930.90 being three-fifths of the amount of N1,551.50 paid by the 7th defendant as rent for the aforesaid rubber estate for the year 1972; to the 6th defendant to pay over to the plaintiffs' community and the 1st, 2nd, 3rd, 4th and 5th defendants which amount was actually collected by 4th defendant, who refused or neglected despite repeated demands to pay over to the plaintiffs the latter's own aforesaid share of N930.90 or anything."
The parties duly filed their respective pleadings and the case eventually proceeded to trial before Ecoma J. Three witnesses (including the 2nd plaintiff) testified for the plaintiffs; and after the 3rd and 4th defendants had testified for the 1st to 5th defendants who had jointly filed a statement of defence, the case was adjourned on the 6th of June, 1974, to the 3rd of July, 1974 "for continuation and address".
The plaintiffs however filed a motion on the 12th of June, 1974 seeking the following orders:-
"(1) An order granting approval to the plaintiffs on record to bring this action for themselves and as representing the people of Etono 2 Village in Ubagbara Clan, Akamkpa Division.
(2) An order granting leave to the plaintiffs to amend their particulars of claim and statement of claim as follows:-
(a) By substituting the word (sic) 1973 for the word (sic) 1972 in line 4 of paragraph 2 of the particulars of claim and line 4 of subparagraph 2 of paragraph 19 of the statement of claim.
(b) By substituting a comma for the full-stop at the end of paragraph 2 of the particulars of claim and sub-paragraph 2 of paragraph 19 of the statement of claim, and adding thereafter the following words,
'or such sum or amount as may be determined by the Court to represent plaintiffs' fair or equitable share of the sum of
When the motion was called on the 3rd of July, 1974, learned Counsel for the 1st to 5th defendants, Mr Orok, raised some preliminary objections, and the matter was then adjourned to the 25th of October, 1974 for "ruling and continuation" for the reasons stated in the ruling, the learned judge refused both arms of the plaintiffs' application.
This is an appeal by the plaintiffs against that ruling. At the hearing of the appeal, two grounds of appeal were argued. One ground was directed against the refusal of the lower court to grant the order sought in the first arm of the motion; and the other ground was directed against the refusal to grant the order sought in the second arm of the motion.
It is convenient to consider the two grounds of appeal separately and we shall now proceed to deal with the first ground of appeal.
As stated earlier, the prayer sought by the plaintiffs in the first arm of the application was for an order granting them approval to sue for themselves and as representing the people of Etono 2 village in Ubaghara Clan, Akamkpa Division. The application was supported by an affidavit sworn to by the 2nd plaintiff. A document marked "Annexure A" was attached to the affidavit. Annexure A is a written authority purporting to empower the plaintiffs to sue in a representative capacity. The said "Annexure A" bore the thumb impressions of six persons who described themselves therein as the chiefs and principal family of the village. After setting out the salient portion of the affidavit in his ruling, the learned judge pointed out that the defendants did not swear to any counter-affidavit; and expressed the view that in substantiating his preliminary objection, Mr Orok in fact argued the motion. The learned judge therefore proceeded to consider the motion on its merits; and in the concluding portion of his ruling, he declined to grant the order to sue in a representative capacity because:-
(1) The 2nd plaintiff did not disclose what interest he or those who thumb impressed Annexure A hand in the suit; and
(2) Those who thumb impressed Annexure A did not file any affidavits.
In support of the first ground of appeal, learned Counsel for the plaintiffs/appellants argued that as the first plaintiff was the head chief of the village, it was not necessary for him to seek an order of court to sue in a representative capacity. Counsel further contended that on the authority of Chief E.E.E. Duke & Ors. v. E.G.D. Henshaw (1944) 10 W.A.C.A. 27, the first plaintiff had the right, as head chief, to sue in his name for the protection of the rights of the community.
We find it difficult to see the strength of the argument of counsel as this case is readily distinguishable from Duke's case (supra). In that case, the amended claim was for rent and tribute; and it is important to note that the observation of the West African Court of Appeal, sought to be relied upon by counsel, that the appellant had a right to sue in his name for the protection of the rights of the family was made on the strength of a previous judgment wherein it had been decreed that the appellant was entitled to control and manage family property and to receive rents and profits accruing therefrom. We therefore cannot escape coming to the conclusion that the argument of counsel partakes of some shortcomings because if the observation of the West African Court of Appeal is construed in its proper context, it certainly cannot support the contention of counsel.
Counsel however submitted, in the alternative, that if an order of court was necessary, there were ample facts on which the learned judge ought to have granted the order. We think that he is on firm ground here as the application in question was brought under Order 4, rule 3 of the High Court Rules which provides as follows:-
"Where more persons than one have the same interest in one suit, one or more such persons may, with the approval of the Court, be authorized by the other persons interested to sue or to defend in such suit, for the benefit of or on behalf of all parties so interested."
In our view, the learned judge was clearly in error when he refused the first arm of the application.
In the 2nd arm of the application, the plaintiffs sought leave to amend their particulars of claim and statement of claim in the manner set out in the application. In his ruling, the learned judge considered that the application for amendment should have been brought earlier in the proceedings; and for that reason and other reasons stated in the ruling, refused the application.
Learned Counsel for the plaintiffs/appellants has attacked this portion of the ruling on the grounds that refusal of leave to amend pleadings was erroneous in law and amounted to an injudicious exercise of the discretion vested in the learned judge.
The circumstances under which a court may grant leave to amend pleadings are set out in Order 34 of the High Court Rules as follows:-
"The Court may at any stage of the proceedings, either of its own motion or on the application of either party, order any proceeding to be amended, whether the defect or error be that of the party applying to amend or not; and all such amendments as may be necessary or proper for the purpose of eliminating all statements which may tend to prejudice, embarrass, or delay the fair trial of the suit, and for the purpose of determining in the existing suit the real questions or question in controversy between the parties, shall be so made. Every such order shall be made upon such terms as to costs or otherwise as shall seem just."
In exercise of the powers thus conferred, the court must have more regard to substance; and, as a general rule, an amendment under Order 34 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:-
(1) It will entail injustice to the respondent;
(2) The applicant is acting mala fide; (see Tildesley v. Harper (1878) 10 Ch.D. 393;
(3) By his blunder, the application 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 N.L.R. 176 at p.179; and Amadi v. Thomas Aplin & Co. Ltd. (1972) 1 ALL N.L.R. 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 rights of the parties, and not to punish them for mistakes which they made 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 a decision of the real matter in controversy, it is as much as 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".
Smith L. J. expressed his emphatic agreement with these observations in Shoe Machinery Co. v. Cutlan (1896) 1 Ch. 108 at page 112.
Adverting to the present application, it cannot be disputed that the application by the plaintiffs to substitute the figures "1973" for "1972" became necessary so as to bring the evidence already given, and which was not objected to, in line with the pleadings. It is clear from the authorities that this application ought to have been granted by the learned judge.
We shall first refer to the Privy Council case of Ababio IV v. Quartey & Another which was cited by the West African Court of Appeal in England v. Palmer (1955) 14 W.A.C.A. 659 at page 661 and in which the following observations were made by the Privy Council:-
"The court ought to have allowed all the necessary amendments that were required for the purpose of enabling the use of evidence that had been obtained for the purpose of settling the real controversy between the parties."
We shall next refer to the following observations of Beller J. in Loutfi v. C. Czarnikow Ltd. (1952) 2 ALL E.R. 823 at page 824:-
"I should allow that amendment because it is simply setting out in the pleadings that which has emerged in the course of the case as an issue between the parties."
These observations were not only quoted with approval by this Court in J. Oguntimehin v. K. Gubere & another (1964) 1 ALL N.L.R. 176 at page 180, but, in that case, the Court upheld an amendment of pleadings after close of evidence and, in so doing, the following observations were made at page 180:-
"In the present case either party called his surveyor at the start of the trial, and both parties agreed on what was in issue between them by reference to their plans. In effect they proceeded with the contest as if the plaintiffs' pleading had been what it became after the amendment; all that the amendment did was to write down what the defendant had known all along to be the plaintiffs' case. The amendment did not take him by surprise, and he has no just cause for complaint."
The decision in Oguntimehin's case (supra) shows that, in the instant case, the learned judge was in error when he said in effect that the present application ought to have been brought earlier. In Oguntimehin's case the application for amendment of pleadings was brought after the close of evidence, and the application was granted by the lower court and upheld by this Court; whereas the application in the instant case was brought before the close of the defence.
The other amendment sought by the plaintiffs and refused by the learned judge was, in effect, to include in the claim "any such sum or amount as may be determined by the court to represent the plaintiffs' fair or equitable share of the sum of
In The Alert (1895) 72 L.T. 124, a similar application was brought and the court had to decide whether or not an amendment which had the effect of increasing the claim ought not to be allowed. Jeune, P.said:-
"Where you can see your way, without risk of failure of justice, to allow the case to be decided on its full merits, every court of justice is bound to do so. I see no reason why this case should not be heard, and the real merits of it adjudicated upon."
We cannot agree to allow the amendments sought in the present case would be unjust to the defendants. Indeed the proposed amendments raise points which appear to us to be vital to the case, and unless they are adjudicated upon, the real issues between the parties will be left undecided. We are satisfied that the defendants were not misled or embarrassed. Evidence germane to the amendments sought had been led by the plaintiffs without any objection. In our view, the learned judge proceeded on wrong principles in refusing the amendments sought. We are therefore in no doubt that to allow the ruling of the lower court to stand would involve a real injustice to the plaintiffs/appellants.
In the result, this appeal must succeed. The appeal is hereby allowed and the ruling dated the 25th of October, 1974 in Suit No. C/84/73 is hereby set aside. It is hereby ordered that the case be remitted to the lower court with the following directions:-
(1) Ecoma, J. Shall proceed with the trial on the basis that the plaintiffs have been duly authorised by the court under Order IV rule 3 of the High Court Rules to sue "for themselves and as representing the people of Etono 2 Village in Ubaghara clan, Akamkpa Division";
(2) the amendments sought in paragraph 2 of the plaintiffs' motion dated the 12th of June, 1974 are deemed to have been duly granted;
(3) the defendants be at liberty, in view of the foregoing directions, should they desire or be so advised, to amend their pleadings.
The plaintiffs/appellants are entitled to costs in this Court assessed at