IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY HOLDEN AT ABUJA THIS THURSDAY, THE 25 TH DAY OF APRIL, 2013 BEFORE: HON. JUSTICE UGOCHUKWU A. OGAKWU - JUDGE MOTION NO. M/4719/2013 BETWEEN: 1. COSMOS OGUGUA AGAGBO 2. COSCO INVESTMENT LTD...PLAINTIFFS/RESPONDENTS AND 1. NDCA CONSTR. AND ENGR. CO. NIG. LTD...DEFENDANTS/ 2. MR. DAKO ADOGAMHE CLEMENT APPLICANTS RULING The substantive action is in respect of specific performance of an alleged contract for the sale by the Defendants to the Plaintiffs of a property known as Plot 1617 (A04) Asokoro District, Abuja. The substantive action is part-heard. The Plaintiffs first witness has testified in chief but he is yet to be cross examined. The Defendants have however filed an application seeking the indulgence of the court to further amend their statement of defence. This Ruling is in respect of the said Defendants application which is dated and filed on 4 th March 2013. The application seeks the following orders: 1. Leave of this Honourable Court to amend the statement of defence by adding new paragraphs 3, 26-33, counter claim, rephrasing of paragraphs 2 and the renumbering of the previous paragraphs nos. 4-25 to now be nos. 5-33 and in terms of the underlined words, phrases and paragraphs in the proposed amended statement of defence. 2. Leave of this Honourable Court to file a further, further and better witness statement on oath of Clement Dako the 2 nd Defendant in the suit in line with the amended statement of defence and additional witness statement on oath of Ugochukwu Nwaodu an estate surveyor practicing in Nigeria. 3. An order deeming the amended statement of defence and witness statements on oath as duly filed and served. The application is supported by an affidavit of eight paragraphs and pursuant to Order 7 Rule 23 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2004, [HCR] a written address was filed in support of the application. The Plaintiffs did not file any processes in respect of the application. Arguing the application on 5 th March 2013, Kennedy Khanoba, Esq., learned counsel for the Defendants relied on the paragraphs of the supporting affidavit and he adopted the submissions in the written address filed in support of the application. He urged the court to grant the application. With the leave of court, C. P. Oli, Esq., of counsel for the Plaintiffs made oral submissions in opposition to the application. He submitted that the Defendants application was a ploy to delay the expeditious determination of the substantive action and that the Defendants did not underline or otherwise delineate the proposed amendments. He urged the court to dismiss the application. In the Defendants written address the issue for determination on the application was distilled to be whether in the circumstance of this case and the strength of the affidavit evidence this application can be granted. I have read the processes filed in respect of this application. I have also given due consideration to the submissions of learned counsel. It seems to me that the issue for determination on the application as formulated by the Defendants in their written address can be honed to precision for purposes of clarity. This being so, it is my considered opinion that the application being one for a discretionary relief, the issue for determination can be more appropriately stated to be: Whether the Defendants have made out a good case for the Court s discretion to be exercised in their favour by a grant of the application
I think the above issue encapsulates the lone issue as formulated by the Defendants and the tenor of the submissions of the parties is clearly subsumed under this issue. It is therefore on the basis of this sole issue that I would now resolve the application. Order 24 Rule 2 HCR provides as follows: "2. The Court or a Judge in chambers may, at any stage of the proceedings allow a 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, as may be necessary for the purpose of determining the real question in controversy between the parties." This provision is so generously worded that it can accommodate and take care of almost all, if not all types of amendment made for the purpose of determining the real questions in controversy between the parties. The aim of amendment of pleadings is to elicit the issue really in controversy between the parties and thereby avoid injustice that would arise but for the amendment, provided that the amendment does not introduce a new cause of action and that the opposite party is not overreached or in any way prejudiced thereby. See OGIDI vs. EGBA (1999) 10 NWLR (PT 621) 42 at 71, SHELL PETROLEUM DEVELOPMENT CO. LTD vs. AMBAH (1999) 3 NWLR (PT 593) 1 at 10 and AKANINWO vs. NSIRIM (2008) 9 NWLR (PT 1093) 439 at 460E-G and 465D-E. In the oft-cited English case of CROPPER vs. SMITH (1883) 26 Ch. D 700 at 711, Bowen, L. J. stated: "It is a well established principle that the object of a court is to decide the rights 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 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 rights. See also YUSUF vs. OBASANJO (2003) 14 NWLR (PT 841) 446, SUFIANU vs. ANIMASHAUN (2000) 14 NWLR (PT 688) 650 at 662C-D and AMADI vs. THOMAS APLIN & CO. LTD (1972) 1 ALL NLR (PT 1) 409. The principles which a court considers in granting an application for leave to amend the writ of summons and or pleadings are as follows: (a) (b) (c) (d) (e) (f) (g) (h) (i) The court must consider the materiality of the amendment sought and will not allow an inconsistent or useless amendment. Where the amendment would enable the court to decide the real matter in controversy, and without injustice. Where the amendment relates to a mere misnomer, it will be granted almost as a matter of course. The court will not grant an amendment where it will create a suit where none existed. The court will not grant an amendment to change the nature of the claims before the court. Leave to amend will not be granted if the amendment would not cure the defect in the proceedings. 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 alteram 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. 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. An amendment will not be allowed on appeal if it would require adducing additional evidence or necessitate a new trial. 2
See JESSICA TRADING CO. LTD vs. BENDEL INSURANCE CO. LIMITED (1993) 1 SCNJ 240, OKOLO vs. UNION BANK (1999) 10 NWLR (PT 623) 429 at 437 and ADEKANYE vs. GRAND SERVICES LTD (2007) ALL FWLR (PT 387) 855 at 866E 867C. The basic principle which has been enunciated by the courts is that an amendment which is for the purpose of determining the real question in controversy between the parties ought to be allowed by the court unless such amendment will entail injustice. See ADETUTU vs. ADEROHUNMU (1984) 1 SCNLR 515, OJAH vs. OGBONI (1976) 4 SC 69 and OGIDI vs. EGBA (supra). In ALSTHOM S.A. vs. SARAKI (2000) FWLR (PT 28) 2267, Achike, JSC (of blessed memory) stated as follows at page 2276 F - G: "Amendment enables the slips, blunders, errors and inadvertence of counsel to be corrected, in the interest of justice, ensuring always that no injustice is occasioned to the other party. The weight of judicial authorities leans in favour of allowing a party to amend its legal processes whenever the need arises in order to ensure that the real matter in controversy between the parties, shorn of manifest errors, mistakes and slips, is adequately brought to focus and determined, with the proviso, however, that the right of adversary party is neither unduly compromised nor unredressed." Also reported in (2000) 14 NWLR (PT 687) 415 at 424 A B. In his own contribution in the said case, Karibi-Whyte, JSC, stated as follows at page 2280 D-E: "The basic principle governing the grant of leave to amend is for the purpose of determining the real issue or issues in controversy between the parties... The courts have always followed the established principle that the fundamental object of adjudication is to decide the rights of the parties, and not to impose sanctions merely for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Also reported in (2000) 14 NWLR (PT 687) 415 at 427 A-B. See also UBN PLC vs. SPARKLING BREWERIES LTD (1997) 3 NWLR (PT 491) 29 at 48-49. The grounds of the Plaintiffs opposition to the amendment sought are that the same will occasion delay and that the proposed amendments had not been clearly underlined. Now, even though the Defendants stated that the amendments sought were underlined in the proposed amended statement of defence; in truth however this is not so. However, I do not think that this is a failure which is fatal to the application. In as much as it is desirable to clearly delineate by underlining or otherwise the amendments proposed, it seems to me that the order sought in the application has set out the amendments sought to be introduced such that the Plaintiffs cannot be said to be at sea with respect to the amendment sought. Furthermore, while it is correct that the application has occasioned delay in the sense that the cross examination of the Plaintiffs witness has not been undertaken as a result of the application, it seems to me that the pursuit of justice in a cause or matter is not to be sacrificed on the altar of speed. The colloquial saying is that you cannot make an omelette without breaking an egg; so where justice will be attained by the amendment sought then any delay occasioned can only be a necessary consequence for the attainment of justice. The grant of leave to amend pleadings is discretionary. Like all judicial discretions, the discretion is to be exercised judicially and judiciously. Judicial in the sense that it must not be capricious and must be for a reason connected with the case and judicious in the sense that it must be based on sound judgment marked by discretion, wisdom and good sense. See ERONINI vs. IHEUKO (1989) 3 SCNJ 130 at 141. The law is that in considering amendment, each case must considered on its own merit: NIGERIAN DYNAMICS LTD vs. DUMBAI (2002) 15 NWLR (PT 789) 139 at 154 This being so, I will now closely examine the proposed amendments to see if they accord with the rules of reason, law and justice in order to determine the manner in which to exercise discretion in this matter. The Defendants seek to introduce new paragraphs 26-33 to their Amended Statement of Defence. This new addition is in order to plead fraudulent misrepresentation, undue influence, illegality and fraud as they aver that they thought that they were going into a mortgage transaction with the Plaintiffs and not a sale transaction. It is flowing from these averments that the Defendants also seek to amend to set up a counterclaim that their transaction with the Plaintiffs is a loan transaction and not a sale transaction. Now, I had stated at the outset that the Plaintiffs action is for specific performance of the contract of sale of Plot 1617 (A04) Asokoro District, Abuja. The Defendants by this amendment seek to raise as defence that the transaction was not a sale transaction but a loan or mortgage transaction; now, is this an amendment which may overreach the Plaintiffs or which the Plaintiffs may not be able to respond to? I think not as the Plaintiffs are yet to close their case 3
and it is still open to them to file a reply to the amended statement of defence and defence to counterclaim. Therefore it does not seem to me that there will be anything overreaching or prejudicial if the Defendants are given leave to amend as proposed. The Plaintiffs would neither be prejudiced nor embarrassed by the grant of the amendment. The proposed amendment by the introduction of new paragraphs 26-33 to the Amended Statement of Defence of the Defendants ought to be allowed. The Defendants seek to rephrase the existing paragraph 2 of the Amended Statement of Defence which is an averment that the Defendants are not in a position to admit or deny paragraph 1 of the Statement of Claim, an averment that has been held to be an improper traverse. See LEWIS AND PEAT (N.R.I.) LTD vs. AKHIMIEN (1976) 7 SC 157 and ASAFA FOODS FACTORY vs. ALRAINE NIG. LTD (2002) LPELR 1 at 27-28. Since the Defendants have already committed this blunder in their Amended Statement of Defence, are they to be punished for it by refusing the application to amend? Definitely not! The court does not exist to punish such mistakes but to ensure that the fundamental object of adjudication which is to decide the rights of the parties, and not to impose sanctions merely for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights is achieved. See ALSTHOM S.A. vs. SARAKI (supra) at 2280. No injustice would be occasioned by a grant of the amendment. The proposed amendment by the rephrasing of paragraph 2 of the Amended Statement of Defence should be allowed. The Defendants further seek to introduce a new paragraph 3 to their Amended Statement of Defence. Though the effect of this proposed amendment will be to change the Defendants admission of paragraph 2 of the Statement of Claim to a denial of the same, I do not think that the Plaintiffs will be prejudiced thereby as the Plaintiffs are yet to close their case and therefore have every opportunity of leading evidence in proof of the said paragraph 2 of the Statement of Claim which is an averment that the 2 nd Plaintiff is a limited liability company incorporated under the Laws of Nigeria. The law seems to be settled that a party will be allowed to amend his pleadings even if it will have the effect of reversing admissions made provided the other party is not prejudiced or overreached thereby: AKANINWO vs. NSIRIM (supra) at 462 D-463C. In the circumstances therefore, since the introduction of the new paragraph 3 to the Amended Statement of Defence cannot entail any injustice to the Plaintiffs, it ought to be allowed. The powers of the court to grant or refuse an application for amendment of pleadings are expansive but, generally, discretionary, leaving the decision on the circumstances of each case, rather than on the whims and caprices of each individual Judge. An amendment for the purpose of determining the real question in controversy would generally be granted where it is made bona fide. The right of the parties to revise or amend their pleadings is commonplace and a beneficent provision which ensures that the real questions in controversy between the parties are properly agitated, ventilated or addressed. This is the true essence of this application brought by the Defendants. The whole aim of an amendment is to enable the party amending an opportunity to revise his pleading and there is no way injustice would be occasioned to the Plaintiffs if the application is granted as the Plaintiffs would in no way be overreached, taken by surprise or embarrassed by a grant of an application to bring out the real questions in controversy for determination. See MUSA vs. EHIDIAMHEN (1994) 3 NWLR (PT 334) 544 at 560 561. After having carefully considered the proposed amendments vis-à-vis the existing pleadings and the processes filed by the parties as well as the submissions of learned counsel, written and oral, in respect of this application; it is my considered view that the discretion of the court in the peculiar circumstances of this particular case, in the light of the very generous provisions of Order 24 Rule 2 HCR and the case law, ought to be exercised in favour of the Defendants. The proposed amendments which I am satisfied is for the purpose of determining the real question in controversy between the parties ought to be allowed as it will not be prejudicial, overreaching or entail injustice. The application to amend therefore succeeds. The other orders sought by the Defendants are aimed at giving effect to the amendments sought by way of filing further and additional statements on oath with respect to evidence on the amendments. Having held that the Defendants are entitled to a grant of the amendments sought, concomitantly the order to file fresh and additional witness statements on oath will equally be granted. I am however unable to deem the amended statement of defence as properly filed and served as the requisite filing fees therefor have not been paid. The Defendants are also to comply with the requirements of Order 24 Rule 6 HCR while filing the second amended statement of defence. In a summation and for the avoidance of doubt it is ordered as follows: 1. Leave is hereby granted to the Defendants to amend their Amended Statement of Defence by adding new paragraphs 3, 26-33, counterclaim, rephrasing of paragraph 2 and the renumbering of the previous paragraphs nos. 4-25 to now be nos. 5-33 and as more particularly shown in the proposed amended statement of defence attached to the application. 2. Leave is also granted to the Defendants to file a further, further and better witness statement on oath of Clement Dako, the 2 nd Defendant in the suit in line with the amendments just granted and an additional witness statement on oath of Ugochukwu Nwaodu. 4
3. The Defendants are given up to and including the 3 rd day of May 2013 to file the 2 nd Amended Statement of Defence and Counterclaim as well as the further, further and better witness statement on oath of Clement Dako and the additional witness statement on oath of Ugochukwu Nwaodu. 4. The Plaintiffs are at liberty to file their Reply to the 2 nd Amended Statement of Defence and Defence to Counterclaim as stipulated in the HCR, if deemed necessary. UGOCHUKWU ANTHONY OGAKWU PRESIDING JUDGE Appearances C. P. Oli, Esq. for the Plaintiffs. Kennedy Khanoba, Esq. for the Defendants. 5