Amendment

KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal Nigeria

MODUPE FASANMI Justice of the Court of Appeal Nigeria

Between

CHAIRMAN, OYO STATE LOCAL GOVERNMENT TRADITIONAL COUNCIL & ORS.

AND

CHIEF OLANIYI ADEOYE ADEGBOYE III & ORS.

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K. M. O. Kekere-Ekun JCA, JCA: By a motion on notice dated 18/12/09 and filed on 28/12/09 the appellants/applicants seek the following orders from this Court:

1. An order for leave to amend the notice of appeal dated 29/7/09 and filed on the same date herein attached and marked Exhibit A by deleting paragraph one on the Notice of Appeal and substituting same with a new paragraph one and to rearrange the parties thereon in terms of the schedule of amendment attached and marked Exhibit B.

2. An order extending the time within which the Appellants/Applicants can compile and transmit to this Honorable Court the record of appeal in this appeal.

The grounds for the application are stated on the face of the motion paper. In a nutshell, they are:

i. That learned counsel who prepared the notice of appeal dated 28/7/09, which was filed within time, omitted to state the State High Court,, and Judicial Division from which the ruling appealed against emanated.

ii. That there is an error in the arrangement of the parties.

iii. That the time within to compile and transmit the record of appeal has lapsed due to the failure of the Registry of the lower court to open for business on account of the current strike by the Judicial Staff Union of Nigeria.

The application is supported by a 20-paragraph affidavit with three exhibits annexed thereto marked A, B and C respectively. Exhibit A is a certified true copy of the original notice of appeal dated 29/7/09; Exhibit B is the schedule of amendment; while Exhibit C is the proposed amended notice of appeal.

At the hearing of this application on 15/4/2010, Mr. O. L. Omoloye, learned counsel for the appellants/applicants relied on all the paragraphs of the supporting affidavit and the exhibits attached thereto. He submitted that the propose of the application is to correct the errors committed by the counsel to the Appellant/Applicant by his failure to comply with the prescription of a good notice of appeal as prescribed by Order 6 Rule 1 and Form 3 of the First Schedule to the Rules of this court. He referred to paragraphs 5-7 of the affidavit in support and submitted that the High Court, the division of the court as well as the particulars of the suit appealed against were inadvertently omitted by the counsel who prepared the notice of appeal. He submitted that the application also seeks to amend the manner in which the parties were set out on the notice of appeal.

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For the guiding principles in an application of this nature, he referred to: Chief Adedapo Adekeve & Ors. vs. Chief O. B. Akin-Oluabade (1987) 3 NWLR (60) 214 at 223 E – H: ALSTHOM S. A. & ANR, VS. CHIEF DR. OLUSOLA SARAKI (2000) 81 LRCN 3015 at 3027 & 3034 E-I (10/11/2000). He submitted that in an application for amendment the court is to ensure justice to both parties before the court. He noted that there is no counter-affidavit to the application. He submitted that the error that led to the amendment is that of counsel which should not be visited on the litigant. He referred to: PROPHET APIGUN OLOWOOKERE VS. AFRICAN NEWSPAPER OF NIG. LTD. & ORS. (1993) 5 NWLR (295) 583 at 592 G-H. He submitted that the application is brought to bring to the fore the subject matter of the appeal to enable the court do justice to the issues in contention. On the jurisdiction of the court to grant the application he referred to: NALSA & TEAM ASSOCTATES VS. N.N.P.C. (1991) 8 NWLR (212) 652 at 667 D-G. He contended that the error in this case is an irregularity and urged the court to grant prayer 1.

With regard to prayer 2 he relied on paragraphs 9-16 of the supporting affidavit wherein facts were deposed to showing that the applicant had complied with the necessary conditions of appeal but as a result of the strike action by staff of the lower court it was not possible to compile the record. He relied on ASOL NIG. LTD. VS. ACCESS BANK NIG. PLC. (2009) 10 NWLR (1149) 283 at 306 -307 E-D. He urged the court to grant the application in the interest of justice.

Mr. Biodun Abdu-Raheem, learned counsel for the 1st respondent opposed the application on points of law. He submitted that the Notice of appeal is the foundation and substratum of every appeal and any defect thereto is fatal and fundamental to the jurisdiction of the court. He referred to: UWAZURIKE VS. A. G. FEDERATION (2007) 8 NWLR (1035) 1 at 17. He submitted that in preparing a notice of appeal the aggrieved party must not only comply with the Rules of Court but must also comply with the provisions of the Constitution. He referred to: ADETONA VS. EDET (2004) 16 NWLR (899) 338 at 359 C-E. He also referred to Section 270(1) of the Constitution of the Federal Republic of Nigeria 1999 and submitted that there is only one High Court of a State. He argued further that by Section 240 of the Constitution an appeal could only lie against the judgment or decision of the High Court of a State. He submitted that the errors contained in Exhibit. A, the original notice of appeal, are very fundamental as there is no mention of any court therein.

He submitted that the power of this court to amend a process before it does not extend to a situation whereby the court would have to infuse life into an otherwise incompetent .process before it. He referred to: NWAIGWE VS. OKERE (2008) 34 (pt 2) NSCOR 1325 at 1353; IYAMU VS. AIGBIREMWEN (1992) 2 NWLR (222) 233 at 242 B-C.

He submitted that Exhibit A, which the applicant is seeking to amend, is not certified in compliance with Section 111 of the Evidence Act and therefore the court cannot look at it. He stated that the name of the officer who certified it and the date on which it was certified were not reflected on the document. Under cover of a letter addressed to the Deputy Chief Registrar of this Court dated 28th May, 2010 and copied to learned counsel for Appellants/Applicants, the 2nd & 3rd and 4th – 6th Respondents respectively, learned counsel for the 1st Respondent cited the following authorities in support of the submission: AGBALA VS. NNAMANI (2005) ALL FWLR (245) 1052; S. G. (NIG.) LTD. VS. GALMAS INT. LTD. (2010) 4 NWLR (1184) 361 at 379.

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With regard to prayer 2, he referred to Order 8 Rule 1 of the Rules of this court. He submitted that upon the failure of the Registrar to compile the record, the Appellant had a duty to compile it. He referred to Order 8 Rule 4 and submitted that the facts deposed to in the supporting affidavit show that the appellants failed to comply with the said provision. He urged the court to refuse the application.

Mr. Adeola Omotunde, learned counsel for the 2nd and 3rd respondents did not oppose the application. The 4th – 6th respondents, although served with the application and hearing notice were absent and unrepresented by counsel. No process was filed on their behalf.

I have given careful consideration to the submissions of learned counsel, the affidavit in support of the application and the exhibits annexed thereto. The Supreme Court in: Adekeye vs Akin-Olugbade (1987) 3 NWLR (60) 214 at 223 had this to say on the nature and purport of an amendment:

“An amendment is nothing more but the correction of an error committed in any process, pleading or proceeding at law or in equity, and which is done either as of course or by notice to the court in which the proceeding is pending. The object of the court is to decide the rights of the parties and not to punish them for mistakes they may make in the conduct of their cases by deciding otherwise in accordance with their rights. There is no kind of mistake or error which, if not fraudulent or intended to overreach, the courts cannot correct, if this can be done without injustice to the other party. The aim of an amendment is usually to prevent the manifest justice of a case from being defeated or delayed by formal slips which arise from the inadvertence of counsel. It would certainly be wrong to visit the inadvertence or mistake of counsel on the litigant.”

From the above dictum, the court would allow the amendment of an error arising from inadvertence of counsel where it can be done without injustice to the other party. An amendment would be allowed where the error is not so fundamental that it goes to the root of the process. The issue in contention in this application is whether the failure to state the High Court from which the decision appealed against arose renders the notice of appeal filed on 29/7/09 incurably defective. Learned counsel for the 1st Respondent has argued that Exhibit A, the certified true copy of the original Notice of Appeal does not meet the requirement of a certified true copy of a public document as provided for in section 111 (1) of the Evidence Act., and therefore should not be considered by this court. To qualify as a certified true copy of a public document, the public officer who has custody of same must certify at the foot of the document that it is a true copy of the document or part thereof. It must be dated and subscribed by such officer with his name and official title and must be sealed whenever such officer is authorized to use a seal.

In the instant case, Exhibit A bears the signature and stamp of the Principal Registrar of the High Court of Justice, Oyo. It also bears a stamp indicating that it is a certified true copy of the original. However the name of the officer who certified the document is not indicated thereon.

Contrary to the contention of learned counsel for the 1st Respondent the date of certification and treasury receipt number in respect thereof are clearly indicted on page 4 of the document. It was certified on 30/7/09. In the circumstances, I am of the view that there has been substantial compliance with the provisions of Section 111(1) of the Evidence Act and the court is entitled to look at Exhibit A to ascertain the nature of the error sought to be corrected.

I have considered the authorities relied upon by learned counsel for the 1st respondent on the merits of the application. In Uwazurike vs A.G. Federation (2007) 8 NWLR (1035) 1 at 17 B – C, the appeal arose from the refusal of the trial court to grant the appellants bail. A joint notice of appeal was filed on their behalf and signed not by the appellants themselves but by their legal practitioner. The Supreme Court considered Order 4 Rule 4 (1) of the Court of Appeal Rules 2002, which provides:

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“4 (1) Every notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, shall be signed by the appellant himself….”(Emphasis is mine).

The Court restated the settled principle of interpretation of statutes to the effect that where the language of a statute is plain, clear and unambiguous the words should be given their ordinary, natural and grammatical construction. The apex Court held, as rightly submitted by learned counsel, that a notice of appeal is the foundation and substratum of every appeal and any defect thereto or therein will render the whole appeal incompetent, thus depriving the appellate Court of jurisdiction to entertain the appeal or any interlocutory application based on the said appeal. It held that the failure by any appellant to comply with the statutory provision or requirement prescribed by the relevant laws or rules under which such appeals may be competent and properly before the court, would deprive the appellate court of jurisdiction to entertain and/or adjudicate on the appeal. The Supreme Court upheld the finding of the Court of Appeal that the notice of appeal was defective and incapable of activating a right of appeal. The emphasis of the Court was on the need to comply with the Rules of Court.

In: Adetona Vs Edet (2004) 16 NWLR (899) 338 at 359 C – E, this Court also re-emphasized the importance of strict compliance with the Rules of Court and the Constitution in the filing of a notice of appeal, as any slip could derail the appeal process. In Ivamu Vs Aiabiremwen (1992) 2 NWLR (222) 233 also relied upon by learned counsel for the 1st respondent, the Court held that the notice of appeal was invalid because none of the grounds of appeal raised a question of customary law. An amendment of the notice of appeal was refused on the ground that the appeal was not initiated by a valid notice of appeal. Similarly in Nwalawe vs Okere (2008) 34 (Pt.2) NSCOR 1325 at 1353, the Supreme Court held that a fundamentally defective notice of appeal cannot be cured by amendment. On this point, see also; Dr. Femi Adekanve & Ors. Vs F.R.N. (2005) 15 NWLR (949) 433.

The jurisdiction of the Court of Appeal to hear appeals is derived from Section 240 of the Constitution of the Federal Republic of Nigeria 1999, which provides:

“240. Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of the Federal Capital Territory, Abuja, Customary Court of Appeal of a State and from decisions of a court martial or other tribunal as may be prescribed by an Act of the National Assembly.”

Thus for the jurisdiction of the Court of Appeal to be invoked, it must be shown that the decision appealed against emanated from any of the Courts mentioned in Section 240 of the Constitution. The procedure for invoking the jurisdiction of the Court of Appeal in civil matters is provided for in Order 6 Rule 2 (1) of the Court of Appeal Rules 2007, which provides:

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“2 (1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on ail such parties; and it shall also have endorsed on it an address for service.”

(Emphasis supplied)

The provisions are clear and unambiguous and must be given their natural and ordinary meaning. The use of the word “shall” makes the provision mandatory. Thus, to validly invoke the jurisdiction of the Court of Appeal, the appellant must, by his notice of appeal, show that the decision appealed against arose from one of the courts set out in Section 240 of the Constitution. The only way to do that is to state the particulars of the court concerned, such as the High Court of a State, the Sharia Court of Appeal of the Federal Capital Territory., Abuja, etc. As observed by learned counsel for the 1st respondent, this would be consistent with Civil Form 3 in the First Schedule to the Court of Appeal Rules 2007.

The original notice of appeal sought to be amended by the present application is marked Exhibit A and annexed to the supporting affidavit. The first paragraph reads thus:

“TAKE NOTICE that the Appellants being dissatisfied with the decision of the Honourable Justice F. L. Oyelaran dated 28th day of July 2009 do hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 herein and will at the hearing of the appeal seek the relief set out In paragraph 4.

AND the Appellants further state the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.”

(Emphasis supplied)

Clearly there is nothing in Exhibit A to invoke the jurisdiction of the Court of Appeal. “Honourable Justice F.I. Oyelaran” is not a court of law and certainly not one of the courts mentioned in Section 240 of the Constitution. I am of the considered view that the failure to state the court from which an appeal emanates is a fundamental defect that goes to the root of the entire process. It is not an irregularity that could be cured by amendment. The guiding principles on amendment so eloquently stated in Adekeve vs Akin-Oluabade (supra) reproduced earlier in this ruling would only apply to a competent process wherein the error sought to be corrected is a mere irregularity. Where the jurisdiction of the court has not been properly invoked, the Court would have no jurisdiction to entertain any application in respect of the incompetent process.

The error of counsel in the present circumstances is fundamental and robs the court of jurisdiction to grant the reliefs sought. In the circumstances I hold that this application lacks merit. It is hereby refused in its entirety and accordingly dismissed. The parties, shall bear their respective costs.

CHIDI NWAOMA UWA, JCA: I read before now the Ruling of my learned brother K. M. O. KEKEREEKUN, JCA I agree entirely with the holding that the application lacks merit. An incompetent process cannot be cured by an amendment; it goes to the root of the court’s power to entertain the application, which is lacking in the present case. I also hold that the application lacks merit; same is refused and dismissed by me.

I abide by the order made as to costs.

MODUPE FASANMI JCA I have read before now the lead ruling just delivered by my learned brother K. M. O. Kekere-Ekun JCA and I agree with his reasoning and conclusion. Where a process filed is incompetent the Court lacks jurisdiction to entertain the action filed.

My learned brother has covered the field in respect of the peculiar circumstances of this application. I have nothing useful to add. The application lacks merit and it is accordingly dismissed by me. Parties shall bear their respective costs.

Judgment

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment) : The instant appeal arose as a result of the judgment of the High Court of the Federal Capital Territory, Abuja in suit with No. FCT/HC/CV/114/2018, between Mr. Diran Ofi and Dr. Akintomi Ojetunde delivered on the 25th day of February, 2022. The lower Court in the judgment aforestated, held that: “The first relief sought by the claimant is for possession of the demised premises.

The claimant led evidence that following the expiration of the defendant’s tenancy for one year certain, he had served her the mandatory 7 days’ notice as required by Section 7 of the Recovery of Premises Act, but still, the defendant failed to deliver possession. In my view, he has met the requirements for the order sought. All the additional payments made by the defendant having come after service of the 7 days’ notice and filing of this case in Court, they had no power to convert the defendant’s expired one year certain tenancy into a yearly tenancy.

In the final analysis, this action succeeds and I grant the following reliefs:” ​In brief, the claimant before the lower Court, by paragraph 10 of the Amended statement of claim sought for the following reliefs: i. The immediate vacant possession of the 5-bedroom detached duplex with two-bedroom guest chalet and a room boys’ quarter together with appurtenances situated and being at No. 4, Bawku Street, off Monrovia Street, Wuse 2 Abuja to be delivered to the claimant forthwith. ii.

Mesne profit at the monthly rate of N666,666.67 (Six Hundred and Sixty-six thousand, Six Hundred and Sixty-six Naira, Sixty-seven kobo) commencing from the 14th day of March, 2018 until vacant possession of the property is delivered to the Claimant. iii.

The claimant also claims the sum of N267,800.00 (Two Hundred and Sixty-Seven Thousand Eight Hundred Naira) being the total cost of putting the property into its original state, due to the willful, illegal, malicious and unauthorized damages done to the property by the Defendant in his bid to alter the original structure of the property in the pretext of doing same to suit his business. iv.

The sum of N5,000,000.00 (Five Million Naira) being damages for the malicious, willful, unauthorized alterations done to the property in question without the express or written consent of the landlord through his authorized agent (the claimant). v. The sum of N1,000,000.00 (One Million Naira) being the cost of prosecuting this action.

In the Amended joint statement of defense filed, defendants denied all the material allegations contained in the claimant’s statement of claim, urging the Court to dismiss the suit in its entirety. ​The background facts giving life to the instant action emanated from a tenancy relationship between the Appellant and the Respondent in respect of a 5-bedroom detached duplex with a two-bedroom quest chalet and a room boys’ quarters located at No. 4 Bawku Street, off Monrovia Street, Wuse 2 Abuja.

According to the Appellant, a tenancy agreement was entered into with regards to the renovation of the building as well as the rent payable, wherefore Appellant paid the sum of N8,800,000.00 to cover the rent and other professional services, but contrary to the contractual obligations and undertaking therein, Respondent reneged in carrying out the much-needed renovation. Appellant also states that with the tacit approval of the Respondent, he carried out the specified renovations, the cost of which was to be recovered from the landlord.

This undertaking according to the Appellant is backed by a letter dated the 3rd of February, 2017, but that notwithstanding, the Landlord failed to repay the money expended on the repairs rather claimed damages before the trial Court.

Appellant further stated that the Respondent in proof of his case called a sole witness and closed his case, but before the Defendant, could open his defense, the claimant by way of a motion filed sought for leave of Court to amend the writ and statement of claim, to enable him join the Body Mechanic Physiotherapy and Wellness Centre Ltd as a second defendant, which though stoutly opposed was granted by the Court, and the witness earlier discharged recalled to give evidence without any order of Court, tendering one document in that regard before closing his case the second time.

Consequently, the defendant called his witness, closed his case leading to the judgment now being appealed against. ​Slightly and differently stated, the Respondent while admitting that there exists a tenancy agreement between him and the Appellant, went on to state that Appellant went about several destructive alteration, restricting, redesigning and damaging works unilaterally, without the written permission of the Landlord or his authorized agent.

That the tenancy between the parties having lapsed by effluxion of time, and Appellant having failed to pay any rent in spite of the demand made in a letter of August 2018, and having remained and failed to vacate the premises to the Respondent or to yield up possession, and at the expiry of the tenancy agreement, the Respondent instructed a legal firm to serve the Appellant with a notice of intention to recover possession and another engineering firm to carry out a detailed inspection of the property with the view of knowing how much it will take putting the property to the state it was before the unauthorized alteration. ​Displeased with the vexed judgment, Appellant on the 2nd of March, 2022 filed a Notice of Appeal predicated on seven grounds of appeal.

The appeal having been entered to this Court on the 22nd day of March, 2022, Appellant filed a brief of argument on the 29th of April, 2022, settled by Anthony N. Ayaogu, the learned counsel representing the Appellant, wherein the following issues were identified for resolution. i. To what extent does Order 13 Rules 20 of the Rules of the High Court of the FCT (Civil Procedure) Rules 2018 applicable to the facts and circumstances of this case viz-a-viz the joinder of the 2nd Defendant/Appellant who was joined as a party after the claimant had concluded evidence and closed his case. ii.

Whether the heavy reliance on the case of Oyede & Ors Vs. Alakija, Okoye vs. Okonkwo (2006) LPELR 11785 (CA), Mahmuda vs. The State (2019) LPELR 479 74 (CA) by the trial Court did not operate in breach of the appellants’ fundamental right to fair hearing as enshrined in Section 46 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) iii.

From the totality of the evidence adduced at trial and the correspondences exchanged between the parties as exhibited to the Court, was the trial Court right in its conclusion that consent was not given to the appellant to undertake the renovation of the demised premises. iv. Was the trial Court right in granting reliefs contained in the statement of claim in favour of the Respondent? ​In opposition to the appeal, and in the brief settled by Taiwo Abe, the learned counsel appearing for the Respondent, the following issues were also listed for the resolution of the appeal. i.

Whether there is any clause in the provisions of Order 32, Order 13 and Order 25 of the High Court of the Federal Capital Territory Abuja (Civil Procedure) Rules 2018 that is against the amendment of pleadings or joinder of a party after the close of a party’s case? ii. Whether there was breach of the principles of fair hearing against the appellant at the trial Court? iii. Whether there was any form of consent emanating from the Respondent to the Appellant to carryout structural amendments on the building which is occupied by the Appellant? iv.

Whether the trial Court was right in granting the reliefs contained in the Statement of Claim in favour of the Respondents? ​Upon a calm examination of the issues proffered by the parties, it seems clear to me that the issues are not altogether in conflict. To that end, I intend to approach the appeal from those issues formulated by the Appellant, which in any case are not altogether different from those formulated by the learned counsel for the Respondent.

ISSUE ONE To what extent does Order 13 Rules 20 of the Rules of High Court of the FCT (Civil Procedure) Rules, 2018 applicable to the facts and circumstances of this case viz-a viz the joinder of the 2nd Defendant/Appellant who was joined as a party after the claimant had concluded evidence and closed his case.

This issue is in tandem with the Respondent’s issue one similarly questioning the named provisions of the High Court of the FCT (Civil Procedure) Rules, 2018 with respect to amendment or joinder of a party. ​It was submitted by learned counsel that the lower Court wrongly assumed that to serve an amended originating process on the newly joined defendant in the circumstance of the case without more suffices to prove the case against such a defendant whereas, the claim must be proved against a defendant while being such a defendant.

He alluded to the provisions of Order 13, Order 25 and Order 32 Rules 12 of the High Court of the Federal Capital Territory Civil Procedure Rules opining that the Claimant having applied to join a new party and amend the originating process after he had closed his case pursuant to Order 13 Rules 4 & 18, was wrong, and the Court equally wrong to have relied on Order 13 Rule 20 and to hold that the party so joined is bound by the evidence and testimonies elicited before being joined as a party.

He argued that the Claimant was unable to prove his case against the Appellant, maintaining that all allegations in the amended Statement of Claim were not proved and cited the case of CGC (Nig.) Ltd. vs. Idorenyin (2015) 13 NWLR (pt. 1475) 149, to contend that two conditions are by law established for allowing an amendment. Firstly, to bring the issues in controversy before the Court and secondly to bring the pleadings in line with the evidence already on record.

Learned Counsel now posed the question whether the evidence already led by the claimant before applying to join the 2nd defendant now Appellant operated to prove the allegations contained in the amended statement of claim. He questioned the basis of the holding of the trial Court at pages 359 – 360 of the record based on the foregoing and urged the Court to resolve the issue in favor of the Appellant.

Responding to the issue, the learned counsel for the Respondent, stoutly maintained that there is nothing in the provisions of Order 32, Order 13 and Order 25 of the High Court of the Federal Capital Territory Abuja (Civil Procedure) Rules 2018 disallowing and or is the amendment of pleadings or joinder of a party. Learned counsel relying on the case of Okezie Vs.

Central Bank of Nigeria (2020) ALL FWLR (pt. 1050) 535 argued that strict compliance with the rules of Court makes for quicker administration of justice and rules of Court meant to be obeyed and complied with, and posited that all the trial did was to follow the rules of Court. On the issue of allowing the claimant to amend and join the Appellant after the Respondent had closed his case, learned counsel was of the view that an amendment or joinder can be done any time in the proceedings for the effectual determination of the action.

He cited on this a host of cases including, Panalpina World Transport (Nig.) Ltd. Vs. J. B. Olandeen International (2010) 12 SCNJ 494, Associated Discount House Limited Vs. The Hon. Minister of the FCT (2013) 8 NWLR (pt. 1357) 493, Green vs. Green (2001) 45 WRN 90 AT 109 and Okwu & Anor v. Chief Victor Umeh & Ors. (2015) LPELR- 26042. ​He concluded by stating that the joinder of the Appellant became necessary to enable a wholesome determination of the issues in controversy and thereby urged the Court to resolve the issue against the Appellant.

In the resolution of this issue, I am convinced that the meat of the Appellants’ complaint, pertains to his being joined as a party by the trial Court after the Respondent had closed its case. This to me appears the crux of the matter.

Whereas it is common ground that amendments can be granted at any stage of the proceedings so as to bring the issues in contention before the Court for resolution and also to have as a party every person who will be affected by the decision of the Court, Appellant faulted the lower Court, complaining that at the stage at which the application was made and granted, the lower Court acted wrongly in granting the application in the circumstance. ​Indeed, the record shows that the claimant in an effort at proving his case called three witnesses and closed his case.

Thereafter, the claimant filed a notice on motion praying that it be allowed to amend the writ and statement of claim, which was granted, even though objected. It is consequent upon the grant of the application that the claimant called an additional witness, who then tendered exhibit P6. The lower Court dutifully appraised the arguments of the parties from pages 359 – 361, and came to the conclusion that the Court can rely on the exhibits tendered before joining the 2nd defendant, and thereby refused the Appellants’ contention on the issue.

It is trite law, that parties are at liberty to amend their pleadings, whenever it is appropriate to do so in order to bring into focus the real issues in controversy for the determination of the Court. In other words, where a proposed amendment raises issues in controversy which are already in evidence, the Court will in the circumstance allow such an amendment. This appears the state of the law. See, CGG (Nig) Ltd vs. idorenyin (2015) 13 NWLR (pt. 1475) 149, and Obijuru vs. Ozims (1985) 2 NWLR (pt. 6) 167.

It is equally the position of the law rightly argued that an amendment, which can be made at any stage of the proceedings, once made takes effect from the commencement of the action or when the amended process was initially filed. See, NSE vs. Katchy (2017) 7 NWLR (pt. 1564) (CA), Okoye vs. Okonkwo (2006) LPELR – 11785 (CA).

In the same volume, it has been held severally that joining a party to an action is an act of uniting to the action all persons who have the same rights or against whom rights are claimed in order to be bound by the result of the action. See, Uku vs. Okumagba (1974) 3SC 35, Jadesimi vs. Ekotie- Eboh (1985) 2NWLR (pt. 10) 909. The lower Court by paragraph 9 of the amended statement of claim of the view that the paragraph was in support of the assertion that 1st defendant had offered to pay the 2nd Respondent’s outstanding debt.

Appellant’s complaint is based on the ground that all the material allegations in the amended statement of claim must be proved anew from when he became a party to the suit. I refer to the case of Mahmuda vs.

The State (2019) LPELR-47974 (CA), where this Court held that: “the amendment relates back to the date of the original, and all steps taken in the proceedings stand and are not nullified.. there was no obligation on the respondent to call any fresh or further evidence after the amendment of the charge against the appellant.” ​From the foregoing state of the law therefore, the complaint by the Appellant on this score is without basis and the issue accordingly resolved against the Appellant. Issue Two. Whether the heavy reliance on the case of Oyede & Ors Vs. Alakija, Okoye vs.

Okonkwo (2006) LPELR 11785 (CA), Mahmuda vs. The State (2019) LPELR 479 74 (CA) by the trial Court did not operate in breach of the Appellants’ fundamental right to fair hearing as enshrined in Section 46 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) The submissions of learned counsel on this issue can be seen from pages 9 – 15 of the brief, wherein Appellant complained that the cases of Okoye & Anor vs. Okonkwo & Ors heavily relied upon by the lower Court in resolving the suit before him are irrelevant.

He submits that the cases cited dealt with amendment of pleadings as against joinder of parties. Counsel submits further that the trial was a nullity having been in breach of Section 46 of the Constitution of the Federal Republic of Nigeria, as amended. On the other hand, the learned counsel for the Respondent is of the view that there was no breach of the principles of fair hearing in the matter.

He referred to pages of the record to show that Appellant joined issues with the Respondent, adduced evidence and further that the learned counsel for the Appellant cross-examined witnesses called by the Respondent. That law has since crystalized, as stated in Bio vs. The State (2020) All FWLR (pt. 1039) 703, that: “While it is the duty of the Court to create the atmosphere or environment for a fair hearing of a case, it is not the duty of the Court to make sure that a party takes advantage of the atmosphere by involving himself in the fair hearing of the case.

A party who refuses to take advantage of the fair hearing process created by the Court cannot turn around to accuse the Court of denying him fair hearing. That is not fair to the Court and counsel must not instigate his client to accuse the Court of denying him fair trial”. See also, Newswatch Communications Ltd vs. Atta (2006) ALL FWLR (pt. 318) 580.

It does not make sense in my humble view for the Appellant, who had joined issues with the Respondent by filing an amended joint statement of defense, rendering evidence through the DW1, her Managing Director, and who had the opportunity of recalling any of the Respondent’s witnesses had she so desired to contend that she was denied fair hearing. It is not debatable that the effect of a breach of the right to fair hearing renders the affected proceedings and any judgment order or decision founded thereon null and void. See Umeano & Ors vs.

Amaekwe & Anor (2022) LPELR-56855 (SC), Chitra Knitting & Weaving Manufacturing Ltd vs. Akingbade (2016) LPELR – 40437 (SC). That situation applies where the constitutional right to fair hearing has been breached. That right owing to the facts just alluded to, cannot be available to the Appellant. This is because the lower Court created the space and the atmosphere which Appellant failed to take advantage of. This issue is also resolved in favor of the Respondent and against the Appellant. Issue Three.

From the totality of the evidence adduced at trial and the correspondences exchanged between the parties as exhibited to the Court, was the trial Court right in its conclusion that consent was not given to the Appellant to undertake the renovation of the demised premises. Appellant’s complaint herein relates to the Respondent’s relief 3, wherein the plaintiff before the lower Court claimed the sum of N267,800.00 being the total cost of putting the rented premises to its original state owing to the unauthorized damages done to the property in an effort to suit its business.

Learned counsel accused the lower Court of failing to proper analyze the documentary evidence placed before it in reaching the erroneous conclusion at page 366 of the record. The Respondent on the other hand denied ever granting Appellant the consent to undertake the repairs in question. On the issue in contention, the lower Court at page 366 of the record found that: “on these facts, I hold that the refusal of consent was in no way unreasonable.

I am also of the considered view that having unilaterally and without due consent carried out extensive structural alterations complained of, the defendant has a duty to restore the property to its original design layout/structure on exiting the tenancy, or bear the cost of putting the premises back in shape.

In this regard, I accept the unchallenged estimate of the cost of restoring the property to its original state as contained in exhibit P4.” It should be noted that the Appellant does not dispute the fact that structural adjustments were made to the property, rather insisting that the landlord consented to the alterations made for which he (Appellant) was to be reimbursed. In discerning the intentions of the parties, the contract agreement remains the principal document to be examined.

I have on that score been referred to paragraph 2 (e) of the tenancy agreement entered between the parties at pages 166 – 170 of the record. I have also referred to the testimony of the Respondent’s witness Ofi Oladiran at pages 321 – 323.

In particular, I have been referred to paragraph e, of paragraph 2 which reads; “…not to make or permit to be made structural alteration or in addition to the demised premises or any part thereof without previous consent in writing of the landlord and such consent not to be unreasonably withheld.” Learned counsel for the Appellant submits in line with the case of Oyewole vs.

Akande & Anor (2009) LPELR – 2879 (SC) that the lower Court had a duty to look at all the documents placed before it in arriving at facts, He drew the Court’s attention to exhibits P1 – P6, D1 – D7 all in the record as well as exhibit D9 contending that these are the exhibits exhibited by the parties in support of their case. He then referred to exhibit D1 and D2 as being the documents relaying the consent by the Respondent to the renovation of the property.

He urged the Court to be influenced by the entirety of the documents and to eschew sentiment, contending that the lower Court was wrong to have overlooked the specific consent to renovate granted by the landlord in the last but one paragraph of exhibit D9, and urged the Court to resolve the issue in its favor. Accordingly, I have meticulously studied the exhibits alluded to by the learned counsel. In particular, I took pains to look out for the sections counsel referred to in argument. My humble view is that a single question disposes of the various contentions being made by the parties.

It is whether the Appellant pursuant to paragraph 2 (e) of exhibit P1, the tenancy agreement obtained the landlord’s consent in writing to effect the structural adjustments allegedly made on the property. I agree with the Respondent’s counsel that in order to give meaning to the contents of written documents, recourse must be made to the clear language used by the parties in understanding the intention of the parties. See, NNPC vs. Mamman Aminu (2013) LPELR – 21395 (CA).

In plain language, Appellant wants the Court to believe that upon a holistic understanding of exhibits D1 and D2, consent was given to the Appellant to restructure the property in issue to suit its purpose. I have not seen such consent, and do hold that no such consent exists. In any case, there is a wide difference between the renovation of premises contained in exhibit D2, and structural adjustments made. The lower Court and the learned counsel for the Respondent are to my mind on a strong wicket contending that no such consent was availed the Appellant.

I resolve the issue against the Appellant. Issue Four. Was the trial Court right in granting reliefs contained in the statement of claim in favor of the Respondent? By this issue, learned counsel seeks to question the rationale for the grant of the reliefs sought, on the contention that the findings of the lower Court at page 366 pointed otherwise. Appellant leveraged on the finding of the lower Court at page 366 to submit that the finding reached by the lower Court does not support the reliefs granted, especially the order for immediate possession of the demised property.

He further leveraged on documents received later in time to argue that the conduct exhibited shows that a second tenancy was created and thereby urged the Court to hold that although the 1st tenancy had expired due to effusion of time, a second tenancy had been entered to as found by the trial Court. Mr. Abe for the Respondent opposes the argument on the basis that the Respondent never asked for such a relief. Incidentally, it is obvious that Respondents did not cross-appeal that finding and conclusion by the lower Court.

It is the position of the law that where a Respondent seeks a complete reversal of a crucial and fundamental finding in the judgment of a lower Court, he can only do so by way of a cross-appeal. See, Oke vs. Kaja (2014) NWLR (pt. 1394) 374. The finding of the lower Court to the effect that: “Lastly, did the defendant pay rent on the premises beyond initial rent of N8 Million paid for the 2017 to 2018 tenancy year? The burden of proof on this is on the defendant.

At the trial, the defendant tendered documents to show that between January 2020 and March 2021, she had made payments to the landlord totaling about 8.1 million. DW1 maintained that they had paid the rent fully for the tenancy periods 2017 – 2018 and 2018 – 2019 and that they had made part payment for the tenancy year 2019 – 2020. His evidence in this regard is cogent and consistent and not at all dented under cross-examination.

Even though most of the documents tendered to show these payments were rejected on technical grounds for non-compliance with Section 84 of the Evidence Act, I am inclined to accept the defendant’s version of the matter as more preferable to the general denial made by the claimant in his reply to the statement of defense. The alternative would be to confer an unjust benefit or double portion of the rent on the claimant. The import of this finding is that as at the year 2017 – 2018 and 2018 – 2019, the rent had been paid, with the rent for 2019 – 2020 partly paid.

This finding not having been appealed against, that finding stands, regardless of the Respondent’s denial. I however do not see how that finding made in the year 2022 can be said to result into countering the order for immediate possession of the demised property, the time for the payment having equally lapsed. The net result is that even though the lower Court found that payments were made up to the first half of the year 2020, the order made on the 25th of February, 2022, in terms of the reliefs granted cannot be said to be unsupportive of the reliefs granted.

I equally resolve the issue against the Appellant. Hence all issues having been resolved against the Appellant, this appeal must fail for lack of merit. In the event, the appeal fails and it is hereby dismissed by me. The judgment of Justice A.O. Ebong of the High Court of the Federal Capital Territory Abuja delivered on the 25th of February, 2022 is hereby affirmed. Costs of N100,000 awarded to the Respondent.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the opportunity of reading in draft, the lead judgment of my learned brother, Hamma Akawu Barka, JCA. I am in total agreement with the reasoning and conclusion made therein. I therefore also find the appeal lacking in merit and it is hereby dismissed. I affirm the judgment of Justice A. O. Ebong of the High Court of the Federal Capital Territory Abuja delivered on the 25th of February, 2022. I make no order as to costs.

DANLAMI ZAMA SENCHI, J.C.A.: I have had the privilege of reading before now, the draft judgment of my learned brother, HAMMA AKAWU BARKA, JCA just delivered and I agree with the reasoning and finding reached therein that this appeal lacks merit and I hereby dismiss it as well. Accordingly, the judgment of the High Court of the Federal Capital Territory, Abuja in suit No. FCT/HC/CV/114/2018 delivered on the 25th day of February, 2022 by Justice A. O. EBONG is hereby affirmed.

Judgment

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment) : This appeal is against the decision of the High Court of Federal Capital Territory, Abuja delivered on 2nd day of July, 2019 by HON. JUSTICE A. O. OTALUKA IN Suit No. FCT/HC/CV/695/2017 granting in part the reliefs sought against the Respondents by the Appellants. The Appellants as the Claimants had approached the lower Court claiming against the Respondents the following reliefs contained in their FURTHER AND BETTER STATEMENT OF CLAIM dated 8th March, 2018 and filed on 9th March, 2018 as follows:- i.

A declaration that the demolition and destruction of the Claimants’ recreational facilities on its premises located at Gimbiya Street, Garki, Abuja by the Defendants is unlawful and illegal, and a violation of the Claimants’ right. ii. A declaration that the Claimants are entitled to damages from the Defendants for the loss incurred by the Claimants as a result of the conduct of the Defendants. ​iii.

N19,330,000.00 (Nineteen Thousand, Three Hundred and thirty Three (sic) Thousand Naira) being special damages for the cost of landscaping, plumbing work, electrical works, inflatable devices and car ports destroyed by the Defendants on the Claimants’ park and recreational facility. iv. N10,000,000.00 (Ten Million Naira) being general damages for the pains and trouble caused the Claimants by the Defendants. v.

The cost of this action.” After exchange of pleadings, the matter proceeded to hearing and upon adoption of the Written Addresses of the learned Counsel to the parties the learned trial Judge gave considered judgment on 2nd July, 2019 as aforesaid and found in favour of the Appellants as follows:- “The Claimants herein have adduced credible evidence in proof of part of their claims; which evidence remained unchallenged and uncontroverted by the Defendants.

The Claimants have discharged the onus of proof placed on them by the law and this Court cannot but accept and act on the unchallenged evidence adduced by the Claimants. It is my finding, and I so hold, that the Claimants have by the evidence adduced before this Court, proved part of their claims against the Defendants, and are thus entitled to judgment in that regard. Accordingly, the Claimants’ case succeeds partly and judgment is entered for the Claimants as follows; 1.

It is declared that the demolition and destruction of the Claimants’ recreational facilities on its premises located at Gimbiya Street, Garki, Abuja by the Defendants is unlawful, illegal and a violation of the claimants’ right. 2. It is declared that the Claimants’ are entitled to damages from the Defendants for the loss incurred by the Claimants as a result of the conduct of the Defendants. 3. Relief III fails and is dismissed. 4. The sum of N2,000,000.00 (Two Million Naira) being general damages for the pains and trouble caused the Claimants by the Defendants. 5.

Cost of N200,000.00 (Two Hundred Thousand Naira) for out of pocket expenses.” ​The Appellants were aggrieved on account of refusal of lower Court to grant relief III in Appellant’s favour and have by the Notice of Appeal dated 23rd July 2019 and filed the same date appealed to this Court on three (3) grounds as follows:- “2.

PART OF THE DECISION OF THE TRIAL COURT COMPLAINED OF: Part of the judgment where the trial Court refused to grant the Appellant’s relief number (iii) for special damages on the basis that documents establishing claims for special damages were tendered on the amended Statement of claim which was not the final amendment. 3. GROUNDS OF APPEAL GROUND ONE (1) The learned trial Judge misdirected himself when his Lordship held thus:- “The question that needs an answer is whether the claimant can sustain more than one Statement of Claim in a single suit.

It is my opinion that amendment of a Statement of claim is for the purpose of curing a defect in the Statement of Claim and replacing it with a brand new statement. The latter comes to cure the defect on the former and therefore the former is adjudged defective.

The follow up question is whether evidence led on a defective Statement of Claim can be considered? …it is therefore my conclusion that Statement of Claim dated and filed on 8th May, 2017 and witness Statement on Oath of PW 1 are automatically expunged having been replaced by the Further and Better Amended Statement of Claim with the Statement on Oath of Salihu Saidu Makama as the only witness – Exhibits PW1A, PW1B, PW1C AND PW 1 D-D1 being documents tendered based on the expunged statement of claim are discountenanced and expunged.

In other words, there is no evidence establishing the claim for special damages which though were particularised in the pleadings of 9th March, 2018.” thereby occasioning grave injustice to the Appellants. PARTICULARS 1. In proof of their case at the trial Court, the Claimants called two witnesses, PW 1 and PW2 respectively. 2. The first witness (PW 1) testified and tendered Exhibits PWIA, PW1 B, PW1 C, PWD and PWD1 on the Amended Statement of Claim subsequent to which the Claimants further amended their Statement of Claim. 3.

Consequent upon filing their Further and Better Amended Statement of Claim the Claimants then called their second witness (PW2). 4. The documents tendered through PW 1 were admitted in evidence and form the record of the Court and the Court has a duty to evaluate same. 5. The amendments obtained by an Order of the trial Court which led to the filing of the Further and Better Amended Statement of Claim did not alter or change the facts upon which the PW 1 gave his testimony. 6.

PW2 led evidence in paragraphs 27, 28, 29 (a) of his Witness Statement on Oath in support of the relief for special damages. 7. The evidence of PW2 in respect of the reliefs for special damages are founded at paragraphs 26, 27, 28, 29 and 30 of the Further and Better Amended Statement of Claim. 8. The facts upon which Exhibits PW 1A, PW 1B, PW1C, P WD and PWD1 were founded as per the original Statement of Claim are the same as contained in the Further and Better Amended Statement of Claim. 9.

Amended Processes do not become otiose as they remain part of the record before the Court in any proceedings. Anambra State Environmental Sanitation Authority vs. Ekwenem (2009) 6-7 S.C. (Pt. 11) page 5. GROUND TWO (2) The learned trial Judge erred in law when His Lordship in his judgment suo moto raised the issue of the reliance by the Appellants on two Statements of Claim in the course of the proceedings without availing the parties the opportunity of addressing the Court on the said issue and the Court proceeded to make a finding on same thereby occasioning grave injustice to the Appellants.

Gwede v. INEC & 3 Ors. (2014) 10 SC 1 PARTICULARS 1. Where a Court raises an issue suo moto, it is incumbent on the Court to invite counsel to address the Court on the said issue before making a finding on same particularly the Party who would be adversely affected by the exercise. 2. This principle is in line with the doctrine of fair hearing enshrined in the Constitution of the Federal Republic of Nigeria 1999 (as amended). 3.

The failure of the trial Court to invite the Party particularly the Appellants address the Court on the issue suo moto raised by the Court is a violation of the Appellants right to fair hearing. GROUND TWO (3) The decision of the trial Court is against the weight of evidence. 4. RELIEFS SOUGHT FROM THE COURT OF APPEAL 1. AN ORDER of this Honourable Court allowing the appeal. 2. AN ORDER granting the Appellants reliefs for special damages as per their Further and Better Amended Statement of Claim. 3.

AND FOR SUCH ORDER or further orders that this Honourable Court may deem fit to make.” ​The Appellants’ Brief of Argument was dated and filed on the 8th day of November, 2019 while the Respondents’ Brief of Argument was dated and filed 5th February, 2020 but deemed properly filed on 13th January, 2022. The Appellants filed Appellants’ Reply Brief of Argument on 12th March, 2020. It was dated same date. It was deemed properly filed on 13th January, 2022. The learned Counsel to the Appellants T. R. AGBANYI, ESQ distilled two (2) issues for determination viz:- “a.

Whether the trial Court in deciding the case was right in discountenancing and expunging documents tendered through PW1 after which the Claimants further amended their Statement of Claim? (Ground One) b. Whether the trial Court was right in raising an issue suo motu without availing the parties the opportunity to address it in same? (Ground Two) The learned Counsel to the Respondents ERIKI JOSEPH, ESQ also nominated two (2) issues for consideration of the appeal viz:- “1.

Whether or not the trial Court was right to have considered only the evidence led in the further and better-amended statement of claim and discountenanced evidence given in the amended statement of claim? 2. Whether or not the trial Court raised issue suo motu that would have warranted calling parties to address on it? The issues raised by the Respondents are coterminous with those raised by the Appellants. The appeal will be determined on the two issues nominated by the Appellants’ learned Counsel. The said issues will be taken together. Under issue 1, the learned Counsel to the Appellants T.

R. ITANYI, ESQ traced the genesis of the action and stated that after P W1 had testified and tendered Exhibits PW1A – PW1D, the Appellants with leave of lower Court filed Further and Better Amended Statement of Claim and the testimonies of PW2 were based on the Further and Better Amended Statement of Claim. He submitted that in these proceedings the trial Judge erred when he held that the evidence given by the PW1 was no longer relevant in the determination of the action. To the learned Appellant’s Counsel, the evidence of PW1 and PW2 are the same.

He stressed that the evidence of PW2 even more comprehensive in that it captures the entire facts of the case of the Appellant especially with respect to claim for special damages. Learned Counsel to the Appellant submitted that the grouse of the Appellants in this appeal borders on the failure of the lower Court to countenance Exhibits PW1-PWD thereby declining to grant reliefs for special damages. That Exhibits PW1-PWD were pleaded, relevant and admissible. He relied on the cases of:- 1. OKONJI V NJOKANMA (1999) 14 NWLR (PART 638) 250 AT 266 and 2.

OMAYE V OMAGU (2008) 7 NWLR (PART 1087) 477 AT 500-501 H-B (CA). Learned Counsel to the Appellants contended that the Further Amended Statement of Claim made by the Appellants was done to bring the pleadings in line with evidence led by PW1 before the PW1 before the filing of Further Amended Statement of Claim which he said still formed part of the record and which according to him cannot be expunged as the lower Court had erroneously done. According to learned Counsel to the Appellants the Amended Statement of Claim filed on 6th November 2017 still form part of the record.

Therefore according to the Appellants’ learned Counsel the special damages particularized in the Statement of Claim ought to have been granted by the trial Court in the interest of justice. He opined that the evidence of PW2 relates to all the items of special damages. That Exhibits PW1-A-D were pleaded and admitted without objection. He stated that they are documents properly admitted on record coupled with pleadings to enable this Court to grant the relief relating to special damages. He relied on the case of NEKA B. B. B. MANUFACTURING CO.

LTD V A.C.B LTD (2004) 2 NWLR (PART 858) 521 AT 540-541 G-A. He relied on pages 191-195, 206-212 and 175 of the record. He submitted that the evidence led to support the claim for special damages was not challenged by the Defendants. He urge the Court to resolve issue 1 in Appellants’ favour.

On issue 2 as to whether the trial Court was right in what the Appellants called “in raising an issue suo motu without availing the parties the opportunity to address it on same”, the learned Counsel to the Appellants referred to the finding of the trial Court and stated that the learned trial Judge erred in resolving the issue raised suo motu without inviting the parties to address the Court on the issue and that this in turn amounted to violation of Appellants’ right to fair hearing. He relied on the cases of MRS M.A.

DAIRO V UBN LTD & ANOR (2007) LPELR-913 (SC) and DEDE V STATE (2012) LPELR-19680 (CA). He also cited Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. Learned Counsel to the Appellants also relied on the cases of:- 1. KUTI V BALOGUN (1978) 1 SC 53 AT 60; 2. OBAWOLE VS WILLIAMS (1961) 10 NWLR (PART 4771) 146; 3. OMINIYI VS ALABI (2015) LPELR-24399( SC) That the act of the lower Court on the issue raised suo motu without an address of Counsel to the parties adversely affected the Appellants. He relied on GWEDE V INEC & ORS (2014) 10 SC 1.

He urged the Court to resolve issue 2 in Appellants’ favour. In his response under issue 1 Learned Counsel to the Respondents ERIKI JOSEPH, ESQ. submitted that the decision of the lower Court is justified for so many reasons. That upon an amendment of pleadings, the former pleadings no longer define the issues between the parties. He relied on the cases of UBN PLC VS OSAZE (2011) 7 NWLR (PART 1246) PAGE 293 AT 311 G-H and AGBAHOMOVO V EDUYEGBE (1999) 3 NWLR (PART 594) 170 AT 186-187 H-B.

He submitted that any evidence or document founded on the ceased Statement of Claim became worthless and defective and immaterial to the just determination of the Appellants’ suit. He relied on the cases of:- 1. U.A.C. V MACFOY (1962) A.C. 152; 2. BABATUNDE HAMZAT V AISATU IREYEMI SANNI (2015) LPELR (24302 (SC). He further submitted that the Further and Better Amended Statement of Claim superseded the Amended Statement of Claim. He relied on the case of ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR V RAYMOND (2009) LPELR 482.

Learned Counsel to the Respondents submitted that the contention of the Appellants on Exhibits PW1A, PW1C and PWD-D1 being documents tendered with respect to expunged Statement of Claim in proof of special damages still formed part of the record of the Court is grossly misconceived. That any documents not tendered along with the Further and Better Amended Statement of Claim during the trial cannot be considered in the judgment of the Court.

That even if the trial Court had relied on Exhibits PW1A, PW1C, PWD-D1 in his judgment that alone will not establish the claims for both special and general damages from the available evidence before the Court. ​That it is a notorious fact that for any form of development to take place in Federal Capital Territory, the necessary permits and approvals for such developments must be sought and obtained from the 2nd Respondent saddled with such responsibility. The Respondents’ learned Counsel stated that the Appellants did not obtain permission for all developments they carried out on the land.

That the Appellants’ witness admitted under cross-examination that they do not need any approval from Development Control. That the said witness had earlier said they obtained approvals. That since the Appellants failed to obtain the necessary approvals the Respondents were right in demolishing the illegally constructed properties. That Appellants’ loss is self-inflicted. He relied on OGWUCHE V MBA (1994) 4 NWLR (PART 336) P. 36 F and IYIMOGA V GOVT OF PLATEAU STATE (1994) 8 NWLR (PART 360) 72 AT 104 C.

He submitted that the Appellants did not plead sufficient materials based on the extant pleading of the Appellants before the lower Court and as such this Court cannot accede to the request of the Appellants. ​He also drew attention to the fact that the Appellants sought for declaratory reliefs and must prove them without placing reliance on the weakness or admission of Defendants. He relied on the cases of GOV. KWARA STATE V LAWAL (2007) 13 NWLR (PART 1051) 187 and ANYANRU V MANDILAS LTD (2007) 10 NWLR (PART 1043) 477-478. He urged the Court to refuse the reliefs sought by the Appellants.

On issue 2 as to whether raising an issue suo motu warrants the calling of parties to address on it, the Respondents’ learned Counsel stated that the lower Court did not raise any issue suo motu that would have warranted the calling of Counsel to the parties to address the trial Court. That the issue of amending statements of claim many times by Appellants pervaded the entire gamut of the proceedings and as such the lower Court did not need to call the parties to address it while reviewing and evaluating the evidence on record so as to arrive at just conclusion in the case.

That what the trial Court did, did not amount to raising an issue suo motu. He relied on the cases of IKEANYI V ACB LTD (1991) 7 NWLR (PART 205) P. 625 and FCMB PLC V N.I.M.R (2009) NWLR (PART 1147) 526H. ​That Appellants are bound by the ways and manners the learned Counsel to them conducted their case at the lower Court. He urged the Court to disallow the appeal. The learned Counsel to the Appellants filed Appellants’ Reply Brief of Argument which is littered with a reharsh of the argument contained in the Appellants’ Brief of Argument.

An Appellant’s Reply Brief of Argument is not an avenue to readjust the Appellant’s case or submissions already made in the main Appellant’s Brief of Argument. The purpose of a Reply Brief by an Appellant pursuant to Order 19 Rule 5(1) of the Court of Appeal Rules 2021 is to reply to all new points and points of preliminary objection or any challenge to the appeal raised and argued in a Respondent’s Brief of Argument.

See NATIONAL UNITY PARTY (NUP) V INEC (2021) 17 NWLR (PART 1805) 305 AT 337 A-B per JAURO, JSC who said:- “The essence of a reply brief is not to reopen argument already canvassed in the appellant’s brief. It is to reply to new issues that have arisen in the respondent’s brief of argument. See Adekanye Komolafe v. Federal Republic of Nigeria (2018) LPELR-44496 (SC); (2018) 15 NWLR (Pt. 1643) 507; Egbele Austin Eromosele v. Federal Republic of Nigeria (2018) LPELR-43851 (SC); (2018) 11 NWLR (Pt. 1629) 60; Adeyemo Abiodun v.

Federal Republic of Nigeria (2018) LPELR-43838 (SC); (2018) 11 NWLR (Pt. 1629) 86.” The major contention of the learned Counsel to the Appellant under issue 1 is that the lower Court fell into serious error in discountenancing and expunging documents tendered through PW1 on the ground that the Further and Better Amended Statement of Claim filed on 9th March, 2018 has displaced the Statement of Claim filed on 8th May, 2017 in support of which PW1 tailored his Witness Statement on Oath and tendered Exhibit Pw1 to PW1A to PW1D.

Appellant strongly submitted that inasmuch as those Exhibits were admitted in evidence without objection the lower Court was wrong to have discountenanced the said exhibits since they form part of proceedings in this appeal. The ground for discountenancing of the said Exhibit tendered through PW1 can be found on pages 277-278 and 279-280 of the record where the lower Court captured the reasons for rejecting the documents. At pages 277-278 the trial Court found:- “Before proceeding further, it seems to me that there is a procedural error that needs to be cleared.

The Claimants’ counsel in the course of trial relied on two different Statements of Claim; one dated and filed on 8th May, 2017 and a Further and Better Statement of Claim dated and filed on 9th March, 2018. The PW1 Joseph Ondoma gave evidence solely on the Statement of Claim of 8th May, 2017 and tendered Exhs PW1A-D. The PW2 gave evidence first on 7th December, 2017 and after the amendment to Further and Better Statement of Claim of 9th March, 2018, the PW2 concluded his testimony on 28th May, 2018 relying on the only witness statement on oath filed by PW2, Salihu Saidu Makama.

The question that needs an answer is whether the Claimant can sustain more than one Statement of Claim in a single suit. It is my opinion that amendment of a Statement of Claim is for the purpose of curing a defect in the Statement of Claim and replacing it with a brand new statement. The latter comes to cure the defect on the former and therefore the former is adjudged defective. The follow-up question is whether evidence led on a defective Statement of Claim can be considered? The case of Alhaji Taiudeen Babatunde Hamzat Anor v.

Alsaliu Ireyemi Sanni (2015) LPELR 24302 SC held thus: “The Statement of Claim upon which the evidence of the Plaintiff is based is not a valid document and no evidence could be considered on a defective Statement of Claim. The said statement and evidence are liable to be expunged from the record.” It is trite that you cannot put something on nothing and expect it to stand. See Skenconsult (NIG) Ltd v. Ukey (1981) 1 SC 16. No issues could be joined on the pleadings unless the statement of claim was valid.

Further amendment was made to the Statement of Claim filed on 8th May, 2017 bringing in the Further and Better amendment of Statement of Claim filed on 9th March, 2018.” And on pages 279-280 the learned trial Judge said:- “This suit is on all fours with the case of Anambra State Environmental Sanitation Authority & Anor (supra).

It is therefore my conclusion that Statement of Claim dated and filed on 8th May, 2017 and the Witness Statement on Oath of PW1 are automatically expunged having been replaced by the Further and Better Amended Statement of Claim with the Witness Statement on Oath on Salihu Siadu Makama as the only witness. The law is settled that in civil cases, the burden of proof rests on the party who asserts the affirmative of the issue in question, that is the party who will fail if no evidence is given on either side.

See Yusuf v Adegoke (2007) ALL FWLR (PT. 385) 384 AT 405.” I have examined the Amended Statement of Claim filed on 8th May 2017 contained on pages 41-46 of the record of appeal. This was the Amended Statement of Claim relied upon when the Appellants as Plaintiffs opened their case on 10th October, 2017. The Plaintiff’s Witness Statement on Oath was filed along the said Amended Statement of Claim by one Joseph Ondoma. Paragraphs 23-27 of the said Amended Statement of Claim read:- “23.

The Plaintiffs aver that the Plaintiffs engaged the services of Salbodi construction Limited for landscaping. electrical and plumbing works on the plots of land where the Plaintiffs spent the sum of N6,450,000.00 Six Million Four Hundred and Fifty Thousand Naira only to develop the park and recreation centre as follows: i. Soft landscaping – preparation earthwork, planting trees, flowers and grasses. ii. Hard landscaping- excavation. kerbs and kerbs works. iii. Electrical works, excavation, piping, wiring fittings and and materials. iv.

Plumbing works- excavation, piping, fittings and materials The Plaintiffs shall rely on the invoice dated 4th April. 2016 issued by Salbodi Construction Limited. 24. The Plaintiffs purchased inflatable devices (made of Giant sides water slide, two bouncing castles and water pod with six canoes) for children recreation in the park which were also destroyed by the action of the Defendants in the sum of N6,100,000.00 (Six Million One Hundred Thousand Naira) the Plaintiffs hereby plead and shall rely on an invoice from FOREVER FURNITURE LIMITED dated 6th September, 2016. 25.

The Plaintiffs spent a total sum of N3,040,000.00 (Three Million and Forty Thousand Naira only) for tiling which includes materials and labour and were destroyed by the action of the Defendants. The plaintiffs hereby plead and shall rely on an invoice in the sum of N3,040.000.00 (Three Million and Forty Thousand Naira only) 19th August, 2016 issued by SUNRAPH GLOBAL CONCEPTS NIG LTD. 26. The Plaintiffs further aver that the Plaintiffs erected 20 (twenty) car Ports which were destroyed by. the action of the Defendants.

The Plaintiffs plead and shall rely on an invoice in the sum of N3,740,000.00 (three Million Seven Hundred and Forty Thousand Naira only) issued by TIM BEST COOL SHADE dated 1st April, 2016. 27. Aggrieved by conduct of the Defendant, the Plaintiffs claim the following reliefs against the Defendant:- i. A DECLARATION that the demolition and destruction of the Plaintiffs’ recreational facilities on its premises located at Gimbiya Street, Garki Abuja by the defendants is unlawful and illegal and a violation of the Plaintiffs’ right. ii.

A DECLARATION that the Plaintiffs are entitled to damages from the Defendants for the loss incurred by the Plaintiffs as a result of the conduct of the Defendants. iii. N19,330,000.00 (Nineteen Million Three Hundred and Thirty-Four Thousand Naira) being special damages for the cost of landscaping, plumbing work, electrical work, inflatable devices and carports destroyed by the defendants on the Plaintiffs’ park and recreational facility. iv. N10,000,000.00 (Ten Million Naira) being general damages for the pains and trouble caused the Plaintiff by the Defendant. v.

The cost of this action.” As can be seen above the quoted paragraphs relate to the claim of the Appellants for Special Damages. The Appellants pleaded documents it sought to rely upon to establish the Special Damages. The said Plaintiff’s witness Statement on Oath filed along with the Amended Statement of Claim filed on 8/5/2017 reads in paragraphs 11-14 as follows:- “11.

That the Plaintiffs engaged the services of Salbodi Construction Limited for landscaping. electrical and plumbing works on the plots of land where the Plaintiffs spent the sum of N6.450.000.00 (Six Million Four Hundred and Fifty Thousand Naira only to develop the park and recreation centre as follows: i. Soft landscaping – preparation earthwork planting trees, flowers and grasses. ii. Hard landscaping- excavation, kerbs and kerbs works. iii. Electrical works, excavation, piping, wiring fittings and materials. iv.

Plumbing works- excavation, piping, fittings and materials The Plaintiffs shall rely on the invoice dated 4th April, 2016 issued by Salbodi Construction Limited. 12. That the Plaintiffs purchased inflatable devices (made of Giant sides water slide, two bouncing castles and water pod with six canoes) for children recreation in the park which were also destroyed by the action of the Defendants in the sum of N6,100,000.00 (Six Million One Hundred Thousand Naira). 13.

That the Plaintiffs spent a total sum of N3,040,000.00 Three Million and Forty Thousand Naira only for tiling which includes materials and labour also destroyed by the action of the Defendants. 14. That the Plaintiffs erected 20 (twenty) car Ports which were destroyed by the action of the Defendants. The Plaintiffs plead and shall rely on an invoice in the sum of N3,740,000.00 (three Million Seven Hundred and Forty Thousand Naira only) issued by TIM BEST COOL SHADE dated 1st April, 2016. 15. That I pray this Honourable Court to grant the Plaintiffs’ claims. 16.

And I make this solemn declaration conscientiously believing same to be true, correct and in accordance with the provisions of the Oaths Act.” The above paragraphs of PW1’s Witness Statement were in tandem with paragraphs 23-27 of the Amended Statement of Claim filed on 8/5/2017. ​For reasons best known to the Appellants they decided to further amend the Amended Statement of Claim filed on 8/5/2017 and the lower Court allowed them thus culminating into the FURTHER AND BETTER AMENDED STATEMENT OF CLAIM filed on 8/3/2018.

It is noteworthy that the Appellants pleaded the documents tendered through PW1 in the latest Amended Statement of Claim christened “FURTHER AND BETTER AMENDED STATEMENT OF CLAIM” filed on 8/3/2018 paragraphs 26-30 on pages 113-174 of the record of appeal thereof as follows:- “26.

The Plaintiffs aver that the Plaintiffs engaged the services of Salbodi construction Limited for landscaping. electrical and plumbing works on the plots of land where the Plaintiffs spent the sum of N6 450 000.00 Six Million Four Hundred and Fifty Thousand Naira only to develop the park and recreation centre as follows: i. Soft landscaping – preparation earthwork planting trees, flowers and grasses. ii. Hard landscaping- excavation, kerbs and kerbs works. iii. Electrical works, excavation, piping, wiring fittings and materials. iv. Plumbing works- excavation, piping, fittings and materials.

The Plaintiffs shall rely on the invoice dated 4th April, 2016 and 1 Ith May 2016 respectively issued by Salbodi Construction Limited. 27. The Plaintiffs purchased inflatable devices (made of Giant sides water slide, two bouncing castles and water pod with six canoes) for children recreation in the park which were also destroyed by the action of the Defendants in the sum of N6,100,000.00 (Six Million One Hundred Thousand Naira the Plaintiffs hereby plead and shall rely on an invoice from FOREVER FURNITURE LIMITED dated 6th September, 2016. 28.

The Plaintiffs spent a total sum of N3,040,000.00 (Three Million and Forty Thousand Naira only) for tiling which includes materials and labour and were destroyed by the action of the Defendants. The plaintiffs hereby pleads and shall rely on an invoice in the sum of N3,040,000.00 (Three Million and Forty Thousand Naira only) 19th August, 2016 issued by SUNRAPH GLOBAL CONCEPTS NIG LTD. 29. The Plaintiffs further aver that the Plaintiffs erected 20 (twenty) car ports which were destroyed by the action of the Defendants.

The Plaintiffs plead and shall rely on an invoice in the sum of N3,740,000.00 (three Million Seven Hundred and Forty Thousand Naira only) issued by TIM BEST COOL SHADE dated 1st April, 2016. 30. The Plaintiffs plead particulars of special damages as follows: – 1. Soft landscaping – preparation earthwork planting trees, flowers and grasses. N450,000.00 (Four Hundred and Fifty Thousand Naira only. 2. Hard landscaping- excavation. kerbs and kerbs works – N4,000,000.00 (Four Million Naira only). 3.

Electrical works, excavation, piping, wiring fittings and materials- N1,500,000.00 (One Million Five Hundred Thousand Naira only). 4. Plumbing works- excavation, piping. fittings and materials N500,000 (Five Hundred Thousand Naira only). 5. 17 units of carports at the rate of N220, 000.00 each for N3,740,000 (Three Million Seven Hundred and Forty Thousand Naira only). 6. Tiling – materials and labour for N3,040,000.00 (Three Million and Forty Thousand Naira). 7.

Inflatables: Giant sides water slide two bouncing castles and water pod with six canoes for children recreation in the park which were also destroyed by the action of the Defendants in the sum of N6,100,000.00 (Six Million One Hundred Thousand Naira only). 8. The sum of special damages N19, 330,000.00 (Nineteen Million, Three Hundred and Thirty-Four Thousand Naira only. “ I agree with the statement of the law as stated by the lower Court to the effect that an Amendment of Statement of Claim is for the purpose of curing a defect in an existing Statement of Claim and replacing it with a new one.

The same is true of various types of pleadings including affidavit evidence upon an amendment.

I am therefore of the settled view that as at 8th March, 2018 the only legal and relevant Statement of Claim for the trial is the “FURTHER AND BETTER AMENDED STATEMENT OF CLAIM” filed on 8/3/2018. ​The position of the law on amendment of process or processes of Court in a suit or action is very clear and settled to the effect that once an amendment is made or granted by the Court seised of the matter to any process, the earlier processes ceased to be in existence and no longer defines the issues between the parties to the action or suit.

Therefore, the position in the Appellant’s case herein is that upon the filing of the aforesaid Further and Better Amended Statement of Claim by the Appellants on 8/3/2018, the Amended Statement of Claim filed on 8/5/2017 ceased to be the pleading defining the issues in the Appellant’s suit. The Further and Better Amended Statement of Claim filed on 8/3/2018 replaced the Amended Statement of Claim filed on 8/5/2017 and the extant Further and Better Amended Statement of Claim related back to the date the action was first filed in Court. See: 1.JOHN OFORISHE V.

NIGERIAN GAS COMPANY LTD (2018) 2 NWLR (PART 1602) 35 at 56 G-H to 57 A per RHODES- VIVOUR JSC said: “After amendment of pleadings by both sides, the final pleadings were the amended statement of claim filed on 3rd May 1995 and the further amended statement of defence filed on 7th June, 1995. The purpose of amending pleadings is to prevent the Court from giving judgment in ignorance of facts that should be known before rights are finally decided. Put in another way amendments to pleadings are ultimately to enable the Court decide the real issues in controversy between the parties.

The position of the law is that the amendment relates to the original pleadings and all amendments before the final amendments seize to be pleadings to be relied on in the trial. They remain worthless. See Rotimi Ors v. Mc Gregor (1974) II SC p. 133; C.G.D.G. (Nig) Ltd Idorenyin (2015) 5-6 SC (Pt. II) p. 1; (2015) 8 NWLR (Pt.1475) 149.” 2. ALHAJI FATAI O. YUSUF V.

MOBIL OIL NIGERIA PLC (2019) 13 NWLR (PART 1689) 374 at 392 C-H per OKORO, JSC who said: “One other issue is that the appellant/applicant admitted in paragraph 3(J) of his supporting affidavit that the judgment of the trial Court in this matter was based on the incompetent 4th amended statement of claim.

It could not have been otherwise because the principle of law governing the amendment is that an amendment duly made takes effect from the date of the original document sought to be amended and this applies to every successive further amendment of whichever nature and at whatever stage it is made. Therefore, when a writ of summons or statement of claim as in this case is amended it dates back to the date of the original issue of such writ or filing of the statement of claim. Consequently, the action will continue as if the amendment has been inserted from the beginning.

See Victor Adegoke Adewumi & Anor v. The Attorney General of Ekiti State (2002) 2 NWLR (Pt. 751) 47; (2002) 1 SC page 47: Oguma v. IBWA (1988) 1 NWLR (Pt. 73) 658: Sneade v. Wotherton (1904) 1 KB 297: Brittania-U (Nig.) Ltd. v. Seplat Petroleum Dev. Company Limited Ors (2016) LPELR-40007 (SC). (2016) 4 NWLR (Pt. 1503) 541: UBA Plc v. Abdullahi(2003) 3 NWLR (Pt. 8(7) 359 at 378 paragraphs C- F. The law is quite clear that once an amendment is ordered what stood before amendment is no longer material before the Court and no longer defines the issues to be tried.

It takes effect from the commencement of the action. See Vulcan Gases Ltd. v. Gesellschaft Fur Industries. Gasvenvertung (GIV) (2001) 5 SC (Pt.1) 1 . (2001) 9 NWLR (Pt. 719) 610: Col. Rotimi v. MacGregor (1974) 11 SC 133 at 152: Osita Nwosu v.

Imo State Environmental Authority (1990) 2 NWLR (Pt. 135) 688. (Underline mine) The decision of the lower Court on the state of pleadings is no doubt based on wrong premises or pedestal. ​The fact that an amendment was made to the Statement of Claim to which PW 1 testified about by adoption of his Witness Statement of 8/5/2017 will not automatically wipe off his oral and documentary evidence particularly Exhibits P W1A, PW1B, PW1C and PW 1D-D1 because the said documents were also pleaded in the Further and Better Amended Statement of Claim which is deemed to be the Statement of Claim upon which PW1 testified, on 10/10/2017 because the extant Further and Better Amended Statement of Claim is deemed in law to be the statement of claim originally filed on the date the action was initiated and it covered the evidence of PW1 contained in the Witness Statement on Oath.

The probative value or otherwise of the oral and documentary evidence aforesaid is another matter. To that extent, the Appellants’ learned Counsel is on a strong wicket. Now to the probative value of evidence of PW1 and PW2. The documents in question which are Exhibits PW1A, PW1B, PW1C and PW1D-D1 were admitted during trial through PW1. It is on record that Exhibit PW1A was issued to the 1st Appellant by a company called Forever Furniture Limited while Exhibit PW1B was also issued by Sunaph Global Concepts Nigeria Ltd to the 1st Appellant.

Exhibit PW1C was issued to the 1st Appellants by TIM BEST COOL SHADE. Exhibit PW1-D-D1 were issued to the 1st Appellant by SALBODI CONSTRUCTION LIMITED, KUBWA BLOCK INDUSTRY on 4/4/2016, while Exhibit PW1-D2 was also issued by the maker of Exhibit PW1-D1. These are the exhibits principally relied upon by the Appellants for the claim or relief in the sum of N19,330,000.00 (Nineteen Million Three Hundred and Thirty Thousand Naira) as special damages against the Respondents.

The law is settled that a claim or relief for special damages must be clearly or succinctly pleaded by the Claimant and it must be strictly proved by credible and believable evidence as such relief will not be granted on the fact that the facts or documents relied upon were not contradicted, see VITAL INVESTMENT LTD VS CHEMICAL AND ALLIED PRODUCTS PLC (2022) 4 NWLR (PART 1820) 205 AT 247 B-H to 248 A-C per ABOKI, JSC who said:- “The above dictum of the Court below notwithstanding, learned counsel for the Respondent was on terra firma when he submitted that even if the sum paid did not include the profit that Appellant was to make, the loss contemplated, if at all, ought not to have been awarded as it was neither specifically pleaded nor strictly proved at the trial in accordance to the specifications laid down in numerous authorities, and I shall make reference to a few of them.

In Akinkugbe v. Ewulum Holdings (Nig.) Ltd & Anor. (2008) LPELR 346 (SC), (2008) 11 NWLR (Pt. 1098) 375 this Court held that: “The rule with regard to the award of special damages is that the burden of proof is on anyone claiming it to prove strictly that he did suffer such special damages claimed. What is required is that the person claiming it should plead its particulars and lead credible and admissible evidence of such character as would establish that he is indeed entitled to an award under that head.

The evidence of particulars of the losses must be known exactly and accurately measured before the trial Court. “ Similarly, in AJigbotosho v. RCC (2018) LPELR 44774 (SC), (2019) 3 NWLR (Pt. 1659) 287 this Court held that: “…Special damages are such damages as the law will not infer from the nature of the act as they do not follow in the ordinary course but exceptional in their character and therefore must be claimed specially and proved strictly.

For a claim in the nature of special damages to succeed, it must be proved strictly and the Court is not entitled to make its own estimate on such a claim. It should be noted that special damages should be specifically pleaded in a manner clear enough to enable the defendant know the origin or nature of the special damages being claimed against him to enable him prepare his defence. Special damages must be specifically pleaded and strictly proved. In this respect, a plaintiff claiming special damages has an obligation to plead and particularise any item of damage.

The obligation to particularise arises not because the nature of the loss is necessarily unusual, but because the plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible…” See also Onyiorah v. Onyiorah & Anor (2019) LPELR 49096 (SC); (2019) 15 NWLR (Pt. 1695) 227. The summary of all I have been saying is that the loss of profit being an item of special damages ought to have particularized in the pleading and specifically proved at the trial.

The pleading and evidence tendered on behalf of the appellant fell far short of the stipulated requirements.” At page 257 C-H my Lord OGUNWUMIJU, JSC had this to say: “Special damages must be properly pleaded and strictly proved to the satisfaction of the Court. See G.K.F Investment Nigeria Limited v. Nigeria Telecommunications Plc (2009) 7 S.C.N.J. Pg. 92; (2009) 15 NWLR (Pt. 1164) 344. In the award of damages, there is need for the Court to take into consideration all minute aspects of the case, the custom of the trade, the law applicable to do the contract, the vagaries of life, e.t.c.

Courts are not just to accept evidence placed before it in prove of the award in toto. See Alhaji Jimoh Ajagbe v. Layiwola Idowu (2011) 6 S.C.N.J. Pg. 506; (2011) 17 NWLR (Pt. 1276) 422. My Lords, the 1st and 2nd heads of claim are one for special damages. It is for penalty incurred on borrowed funds. A claim for special damages are particular damages which results from the particular circumstances of the case. They are usually not inferred from the nature of the act and they do not follow in the ordinary course, therefore, they must be claimed specially and proved. See British Airways v. Mr.

P.D. Atoyebi 120141 6 S.C.N.J. Pg. 634; (2014) 13 NWLR (Pt. 1424) 253. The basis of the claim for special damages as stated earlier is that the Respondent knew of the loan particulars between the Appellant and Summit Finance and was therefore liable to pay penalty as special damages. The Appellant was not able at trial to produce any documentary evidence to show that the penalty charges were known to and undertaken by the Respondent. There is nothing on the face of the LPO- exhibit 1 & 2 to show this.

There is therefore no credible evidence to substantiate proof of entitlement to special damages, that claim was rightly rejected by the lower Court. The Court will not award special damages based on incomplete and inconclusive or uncontradicted oral evidence without documentary evidence of same. See Mr. Felix Nwoye Adim v. Nigerian Bottling Company Ltd. and Another (2010) 9 NWLR (Pt. 1200) Pg. 558.” I have calmly examined the exhibits tendered.

In this case, PW1 and PW2 were not the makers of the documentary evidence tendered by them particularly Exhibits PW1-A, PW1-B, PW1-C and PW1D-D2 tendered by the 1st PW who merely tendered the documents without any evidence on the contents of the document.

For example, Exhibit PW1A stated more than one item and put the price at N6,100,000.00 (Six Million, One Hundred Thousand Naira) without stating the costs of each items while Exhibit PW1B talked of tiling and stating that materials and labour for 640m2 amounted to N30,040,000 without any evidence of the value of the items or materials purchased. Exhibit PW1C talked of car ports of 7.5m by 5m at rate of N220, 000 each totaling N3, 740, 000 yet in the body of the Exhibit it is written “one item only”.

In Exhibit PW 1D, it is stated that landscaping – preparation, earthwork, planting trees, flowers and grasses cost N450, 000 (Four Hundred and Fifty Thousand Naira) without any details of how much each of the items listed costs. The same is true of hard-landscaping which was listed to include excavation, kerbs, and kerbs works put at total cost of N4,000,000 (Four Million Naira) without stating how much each head of items costs.

The same is true of Exhibit PW D2 dealing with Electrical works, excavation, piping, wiring fittings and materials- costing N1,500, 000.00 (One Million Five Hundred Thousand Naira) without evidence of how much went into each of the items listed. On the same Exhibit PW1D2 is plumbing works which is also stated to include – excavation, piping, fittings and materials N500,000 (Five Hundred Thousand Naira) without stating also how much each of the items listed costs. To my mind, it cannot be said that the Appellants proved any of the items of special damages with any clarity at all.

To compound the problems of the Appellants, they failed to call any person from the companies that issued invoices and sold materials to them. They also failed to call any worker or group of workers or contractors that carried out all the works and supplied all materials listed in Exhibits PW1A, PW1B, PW1C and PW1D- D1. The exhibits tendered have no probative value because they were not tendered by the makers or persons who had knowledge of their contents. The oral testimonies of the PW1 did not support the contents of the aforesaid exhibits which they did not make, see; 1. IKPEAZU V.

OTTI (2016) 8 NWLR (PT. 1513) 38 AT 93 B per GALADIMA, JSC who said:- “It is settled law that a party who did not make a document is not competent to give any evidence on it. This is the situation here. PW19 did not make Exhibit PWC2, she cannot competently tender it. The maker must be called to testify to credibility and veracity. “ 2. WIKE EZENWO NYESOM VS HON. (DR) DAKUKU ADOL PETERSIDE & ORS(2016) 7 NWLR (PART 1512) 452 AT 522 where KEKERE-EKUN, J SC, who said:- “In Belgore v.

Ahmed (supra) this Court emphasised the fact that where the maker of a document is not called to testify, the document would not be accorded probative value, notwithstanding its status as a certified public document. Furthermore, in Buhari v. NEC (supra) at 391 it was held that in estimating the value to be attached to a statement rendered admissible by the Evidence Act, regard must be had, inter alia, to all the circumstances from which any inference can reasonably be drawn to the accuracy or otherwise of the statement.” 3. E. N.

OKEREKE VS NWEZE DAVID UMAHI & ORS (2016) 1 NWLR (PART 1524) 438 AT 472 A-H per NWEZE, JSC who said:- “Surely, since the witness (PW 1), was not “in any polling unit in Ebonyi State on the day of election”; “had never worked at INEC office”; “did not participate in the off-loading of information from the Card Reader Machine to the INEC Data base” and “was not part of the team that came to Abakaliki for the exercise”, the lower Court, rightly, affirmed the position of the trial Tribunal that no weight could be attached to his evidence for he was “ignorant of (their) content”.

As this Court explained in Buhari v. I.N.E.C (2008) 18 NWLR (Pt. 1120) 246, 391-392, paras H-A. “Weight can hardly be attached to a document tendered in evidence by a witness who cannot or is not in a position to answer questions on the document. One such person the law identifies is the one who did not make the document. Such a person is adjudged in the eyes of the law as ignorant of the content of the document.” 4. BASHIRU POPOOLA V THE STATE (2018) 10 NWLR (PART 1628) 485 AT 496 H TO 497 A-B per RHODES-VIVOUR, JSC.

In the result, the Appellants failed to give cogent or credible evidence to support their claim for Special Damages. The finding of the lower Court cannot be faulted. In any event, looking at the contents of the documents tendered they are of no probative value. ​Issue 1 is resolved against the Appellants.

The central focus of issue two (2) is that the lower Court raised an issue suo motu without affording the parties opportunity of addressing the Court on it. What the Appellants considered to be an issue raised suo motu can be found on pages 277-278 where the learned trial Judge said:- “Before proceeding further, it seems to me that there is a procedural error that needs to be cleared. The Claimants’ counsel in the course of trial relied on two different Statement of Claim; one dated and filed on 8th May, 2017 and a Further and Better Statement of Claim dated and filed on 9th March, 2018.

The PW1 Joseph Ondoma gave evidence solely on the Statement of Claim of 8th May, 2017 and tendered Exhs PW1A-D. The PW2 gave evidence first on 7th December, 2017 and after the amendment to Further and Better Statement of Claim of 9th March, 2018, the PW2 concluded his testimony on 28th May, 2018 relying on the only witness statement on oath filed by PW2, Salihu Saidu Makama. The question that needs an answer is whether the Claimant can sustain more than one Statement of Claim in a single suit.

It is my opinion that amendment of a Statement of Claim is for the purpose of curing a defect in the Statement of Claim and replacing it with a brand new statement. The latter comes to cure the defect on the former and therefore the former is adjudged defective. The follow-up question is whether evidence led on a defective Statement of Claim can be considered?” One of the principles of law that is settled and inviolate is that parties as well as the Court are severely bound by the pleadings of the parties in a cause or matter.

The Court cannot raise an issue suo motu and use the point so raised in the absence of the parties against anyone of the parties without affording the parties to the dispute opportunity to address the Court on the issue so raised suo motu. See: LEADERS & CO LTD VS.

BAMAIYI (2010) 18 NWLR (PART 1225) 329 AT 338 D- G per GALADIMA, JSC who said:- “Indeed, with the consensus of the parties that the Court below erred in law to have raised the issue as to the competence of the notice of appeal suo motu, without affording the parties an opportunity to address it on the point, this has resolved the first issue.

This Court in KATTO’S case (supra) held thus: “On no account should a Court of law raise a point suo motu, no matter how clear it may appear to be, and proceed to resolve the case between the patties thereon without inviting them or counsel on their behalf to address the Court on the point. If it does so, it will be in breach of a patty’s fundamental right to fair hearing.

In the instant case, the Court of Appeal was wrong in raising the issue of jurisdiction suo motu and proceeding to decide the appeal thereon without inviting Counsel to address it thereupon.” The appellants were denied fair hearing at the Court below. This Court has held in a plethora of cases that where a party has been denied fair hearing the entire proceeding no matter how well conducted will amount to a nullity. See Adigun v. A.G. of Oyo State (No. 2) (1987) 2 NWLR (Pt.56) P.197 Okafor v. A.G.

Anambra State (1991) 6 NWLR (Pt. 200) 659.” ​However notwithstanding that a Court should avoid raising an issue suo motu or initiating controversy in a matter lest there is a breach of right to fair hearing, a Court is nevertheless entitled within some settled exceptions to raise an issue suo motu in the interest of justice in deserving cases, especially where the facts in support of the issue allegedly raised suo motu exists in the litigation. See; 1. ENGR. CHINE-DUM O. ANYA VS BARR. ONWUCHEKWA O.

ANYA & ORS (2020) 8 SCM 16 at 25 D- H to 26 A per ABBA AJI, JSC who said: “The facts in this case do not show that this was the case. The Appellant’s case before the trial Court was founded on the fact that the Will left by the deceased was forged wherein in proof or otherwise, a handwriting expert testified, which was in favour of the Respondents. How then did the issue of forgery become fresh on appeal?

The lower Court being confronted with the whole facts and as reflected in the record, discovered that the issue of forgery was well founded and cannot be a new issue calling for address of parties. I think the Appellant is lost as to the distinction between raising an issue suo motu and looking into the case file by the Court to determine a matter. This was touched by Per OKORO, JSC in Akeredolu v.

Abraham & Ors (2018) LPELR-44067 (SC), when he inter alia proposed that: “I agree with the Court below that the fact of the appellant carrying on part of his law business in Abuja was not introduced into the litigation by the learned trial Judge. Rather, it was exposed to the Court by the learned Senior Counsel for the Appellant via a letter to the Deputy Chief Registrar of the Court where one of the offices of the Appellant’s Law office is shown to be located in Abuja.

A distinction must be drawn between a Court raising an issue suo motu, and the Court looking into its records suo motu to resolve an issue raised by the parties. In respect of the former, a Court raising an issue suo motu, must invite the parties to address it before using the issue in the judgment. But on the latter situation where the Court looks into the record of appeal to enable it resolve issues already raised by the parties, a Court is not bound to invite the parties to address it.

A Court can only be accused of raising an issue, matter or fact suo motu if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exists in the litigation. A Judge, by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inferences; the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct.” 2. KERIAN IKPARA OBASI VS.

MIKSON ESTABLISHMENT INDUSTRIES LTD (2016) LPELR-40704 (SC) per OKORO, JSC. It was the Appellants’ learned Counsel in this case that drew the attention of the learned trial Judge to the existence of two of the pleadings filed by the Appellants and the fact that PW1 testified on one while the PW2 testified on the other.

For case of reference it is pertinent to refer to page 232 of the record where the Appellants’ learned Counsel in the course of his Final Written Address before the lower Court referred the said Court to the Appellants’ pleadings as follows:- “1.2 The Claimants opened their case on the 10th of October, 2017 with Mr. Joseph Oudorna, PW1 (now deceased). The matter was then adjourned to the 1st of November, 2017 for cross-examination.

However, the Defendants were neither in Court nor represented by Counsel on the 1st of November, 2017 and upon an application by the Claimants’ Counsel, the Defendants were foreclosed from cross-examining the PW1 by an order of this Honourable Court. 1. 3. The point must be made that the testimony of PW1 is contained in the Amended Statement of Claim dated and filed on the 8th of May, 2017. PW2 commenced his testimony on the 7th of December, 2017 on the basis of the Further Amended Statement of Claim dated and filed on the 6th of November, 2017.

Midway into the testimony of PW2, Claimants sought an adjournment to again amend their Claim. This necessitated the filing of the Further and Better Amended Statement of Claim on the 9th of March, 2018 earlier mentioned. The testimony of PW2 is therefore the one contained in the Further and Better Amended Statement of Claim. At the proceedings of 28th May, 2018 the Claimant’s Counsel informed this Honourable Court of the demise of the PW1. 1.4.

The relevant processes to be considered in the determination of this suit are therefore the Amended Statement of Claim dated and filed on the 8th of May, 2017 which contains the testimony of PW1 and the Further and Better Amended Statement of Claim which captures the testimony of PW2. The Defendants who were represented by counsel in the proceedings did not file any process but availed themselves of the opportunity to cross-examine the PW2.

On the 10th of October, 2018 when this matter was adjourned for defence, the Defendants and counsel were not in Court consequent upon which this Honourable Court made an order foreclosing the defendants from entering a defence.” The learned trial Judge duly dealt with issues and matters to which his attention was drawn in the course of trial. Therefore, there is already in existence before the lower Court the two Amended Statement of Claims which the Appellants claimed they were relying upon.

It has been decided under issue one based on the trite position of the law that once there is an amendment to an existing process like Statement of Claim, Statement of Defence, such earlier process ceases to be in existence and no longer define the issues in controversy between the parties.

It is the latest amended process that will govern and define the issues the trial Court is called upon to adjudicate upon. ​The facts before the lower Court with respect to the pleadings of the Appellants and decision of the trial Judge on it cannot be said to be a matter raised or taken suo motu in the absence of the parties.

And in any event, the issue as to which of the Amended Statement of Claim the Appellants can rely upon and upon which the lower Court could render its decision is a matter of law and within the lower Court’s jurisdiction to decide without any recourse to the parties or their learned Counsel. See; 1. ADEBAYO SEGUN ONI V. JOHN KAYODE FAYEMI & ORS (2019) LPELR – 49299 SC 1 AT 18-20 per SANUSI, JSC. 2. MR. MICHAEL IDACHABA & ORS VS.

THE UNIVERSITY OF AGRICULTURE MAKURDI & ORS (2021) 1 SCM 53 at 68 C-H per MUSA ABBA AJI, JSC who said: “Furthermore, a Judge can only be accused of raising an issue suo motu if the issue was never brought up by any of the parties or both parties in the litigation. A Court is not a Zombie or robot to go along with the cliché “garbage in, garbage out”. The Court exists to determine and examine with due diligence and sense, matters before it in its pursuit of Justice.

Therefore, where it would enthrone injustice, the Court will not close its eyes to any irregularity however shown on the record without suo motu dealing with it. See Per PETER-ODILI, JSC in Ogar & Ors v. Igbe & Ors (2019) LPELR-48998(SC) (PP. 42-44, Paras. C-A), (2019) 7 SCM, 170. Finally, I must strongly warn here that it is not an irrevocable principle that a Court cannot raise an issue suo motu. The issue the Appellants’ learned Counsel allegedly contends that the lower Court raised suo motu was an issue of jurisdiction of the trial Court to entertain the claims of the Appellants.

The issue having been pleaded and jurisdictional, the lower Court was free and right to so raise it suo motu. In fact, this matter was laid to rest, Per OLABODE RHODES-VIVOUR, JSC in Omokuwajo V. FRN (2013) LPELR-20184 (SC) (PP. 37-38, Paras. F- D), (2013) 6 SCM, 193 when he held that: The need to give the parties a hearing when a Judge raises an issue on his own motion or suo motu would not be necessary if: (a) the issue relates to the Court’s own jurisdiction. (b) both parties are/were not aware or ignored a statute which may have bearing on the case.

That is to say where by virtue of statutory provision, the Judge is expected to take judicial notice. See Section 73 of the Evidence Act. (c) when on the face of the record, serious questions of the fairness of the proceedings is evident.” It was within the jurisdiction of the lower Court to hold that it was the Further and Better Amended Statement of Claim filed on 9th March, 2018 that defined the issues before the lower Court between the parties to this appeal. No miscarriage of justice has been occasioned.

The contention of the Appellants’ learned Counsel that the lower Court raised the issue suo motu is misconceived and cannot be sustained. Issue 2 is hereby resolved against the Appellants. In the result, the Appellants’ appeal is profusely lacking in merit, as the two (2) issues raised by the Appellants for the determination of the appeal have been resolved against them. Consequently, the judgment of the High Court of Justice, Federal Capital Territory delivered on 2nd day of July, 2019 (Coram: HON. JUSTICE A. O. OTALUKA) IS HEREBY AFFIRMED. There will be no Order as to costs. MONICA BOLNA’AN

DONGBAN-MENSEM, J.C.A.: I agree with the lead judgment prepared by my learned brother, PETER OLABISI IGE, JCA, dismissing the appeal. ​The submission of the learned Counsel to the Appellants that the trial Court ought not to have discountenanced the documents tendered through PW1 because it was based on a Statement of Claim which was later amended is not misguided. This is based on the principle that an amendment dates back to the original date of filing, the amended process takes effect from the date of original pleading and not the date the amendment was made.

See the decision in REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIG V. NAMA (2014) LPELR – 22372 (SC) that; “…There is no modicum of doubt that the Appellant herein commenced this action at the High Court with the Name “Airline Operators of Nigeria” Both parties attest to this as the facts are sacrosanct on it. The matter was prosecuted with that name until the Appellant woke up from slumber and realized that such a name was unknown to law, It then filed a motion to have the name corrected which the learned trial Judge obliged on the date judgment in the matter was delivered.

That amendment, with all intents and purpose took effect from the date of the originating process filed. This is so because an amendment duly made takes effect from the date of the original document sought to be amended and this applies to every successive further amendment of whichever nature and at whatever stage it is made. Therefore, when the learned trial Judge granted the amendment, it dated back to when the Originating Summons was issued and the action would continue as if the amendment was inserted from the beginning. (Emphasis mine). ” Per OKORO, J.S.C. (See also ADEWUMI V.

ATTORNEY-GENERAL, EKITI STATE, (2002) 2 NWLR (pt.751) 474, IMONIKHE V. ATTORNEY- GENERAL, BENDEL STATE (1992) NWLR (pt. 248) 396, OJAH V. OGBONI (1976) 1 NMLR 95, OKOLO V. UNION BANK OF NIGERIA LTD (1999) 10 NWLR (pt. 623), SHELL PETROLEUM DEVELOPMENT CO. NIG. LTD V. AMBAH (1999) 3 NWLR (pt. 593) 1). The evidence and testimony of PW1 remains valid because the amendment made to the Statement of Claim does not affect the evidence adduced through PW1.

The trial Court wrongly discountenanced Exhibits PW1A, PW1B, PW1C and PW1D-D1 because the said Exhibits which were pleaded and tendered based on the original Statement of Claim were still pleaded in the Further and Better Statement of Claim. ​The law is that evaluation of evidence is primarily the function of the trial Court. Interference by an appellate Court can only occur where and when the trial Court fails to evaluate such evidence at all or fails to do so properly. See MAINAGGE V. GWAMMA (2004) LPELR-1822 (SC), ABISI V. EKWEALOR (1993) 6 NWLR (PT. 302) 643, ATOLAGBE V.

SHORUN (1985) 1 NWLR (PT. 2) 360; and OBODO V. OGBA (1987) 2 NWLR (PT. 54) 1. ​The evaluation of documentary evidence on the other hand is not within the exclusive preserve of the trial Court. The appellate Court just like the trial Court is also competent and has the power to evaluate documentary evidence. This is because documents speak for themselves so the demeanour of the witness tendering the document is irrelevant.

Where the issue before the appellate Court centres on the assessment or consideration of documentary evidence tendered in the proceedings as distinct from the credibility of witnesses as in the instant case, the appellate Court is not foreclosed by the views of the learned trial Judge on the said documentary evidence from evaluating and making its own findings thereon.

Since documentary evidence form part of the Records transmitted to the appellate Court, it is well within the purview of the appellate Court to evaluate such evidence where the trial Court failed to do so or failed to evaluate the said evidence properly. By a plethora of decisions, this Court is in as good a position as the trial Court to evaluate and ascribe probative value to documentary evidence. In the case of IWUOHA v. NIPOST (2003) 4 S.C. (PT. 11) 37, the Apex Court held thus; “I should say that evaluation of a document is not within the exclusive preserve of the trial Judge.

Both the trial Judge and the appellate Judge have equal right to evaluate a documentary evidence. This is because, unlike oral evidence which an appellate Judge does not see, he sees like the trial Judge, the document as exhibit. Therefore, where the finding of a trial Judge on a documentary evidence is perverse, an appellate Judge will easily see the perversion, and employ his appellate power to correct it “Per TOBI, J.S.C. (See also ARIJE V. ARIJE & ORS. (2018) LPELR-44193 (SC), MAFIMISEBI & ANOR. V. EHUWA & ORS. (2007) LPELR-1812 (SC). UNION BEVERAGES LTD V.

PEPSICOLA INT’L LTD & ORS. (1994) LPELR- 3397 (SC), GONZEE (NIG) LTD V. NIGERIAN EDUCATIONAL RESEARCH & DEVELOPMENT COUNCIL & ORS. (2005) LPELR-1332 (SC), CHITRA KNITTING & WEAVING MANUFACTURING CO. LTD V. AKINGBADE (2016) LPELR-40437 (SC), SALISU & ORS. V. ODUMADE & ANOR. (2010) LPELR-2995 (SC), OGUNDALU V. MACJOB (2015) LPELR-24458 (SC). FSB INTERNATIONAL BANK LTD V. IMANO (NIG.) LTD. (2000) 11 NWLR (Pt.679) 620, AGBAREH & ANOR- V. MIMRA & ORS. (2008) LPELR-43211 (SC), OGBEE V. OGAH & ORS. (2019) LPELR-48864 (CA), DIKIBO V. IBULUYA (2006) LPELR-9811 (CA), LEAD MERCHANT BANK LTD V.

SALAMI & ORS. (2007) LPELR-8600 (CA) and NWOSU V. ONWUKA & ANOR. (2020) LPELR-50639 (CA). Having found that the trial Court wrongly discountenanced the abovementioned documentary evidence tendered by the Appellants, this Court is empowered by Section 15 of the Court of Appeal Act, 2004 to step into the shoes of the trial Court and evaluate the evidence. Exhibits PW1A, PW1B, PW1C and PW1D-D1 are documentary evidence which form part of the Records before this Court. The said Exhibits have been duly and succinctly evaluated in the lead judgment and were found to be lacking in probative value.

For this reason and fuller reasons expounded in the lead judgment, I too hereby dismiss this appeal as lacking in merit.

MOHAMMED MUSTAPHA, J.C.A.: I read the draft judgment just delivered by my learned brother, PETER OLABISI IGE, JCA. I agree with the reasoning and adopt the conclusion therein as mine.

Judgment

RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of the High Court of Rivers State Port Harcourt Division delivered on 8th November, 2018 by Hon. C. Nwogu, J. in Suit No. PHC/1006/2017.

The Appellants/Applicants by a Motion on Notice dated and filed on 26th day of October, 2018 at the Court below, brought pursuant to Order 24 Rules 1 & 2 of the High Court (Civil Procedure) Rules 2010 and under the inherent jurisdiction of the honourable Court prayed for: 1) AN ORDER of this honourable Court granting the Defendants/Applicants leave to amend its Statement of Defence in terms of the proposed Amended Statement of Defence herein attached and marked as Exhibit A. 2) AN ORDER deeming the Amended Statement of Defence filed simultaneously with this application as duly filed and served, all filing fees having been paid. 3) Leave of this Court to file additional list of witnesses, witness deposition on oath of Defendants’ new witnesses; Elder Douglas Tekena, Surv.

Needam Yiinu and Samuel Abel Jumbo, Esq., and additional list of documents. ​4) Deeming the said additional list of witnesses, list of documents, and witness deposition filed along with this application as duly filed and served, appropriate filing fees have been paid. The Application was supported by an affidavit of Eight (8) paragraphs deposed to by one Anthony Nwankwor, a legal practitioner in the law firm of Thompson Okpoko & Partners, the solicitor to the Defendant/Applicant.

In response to the motion, the Claimant/Respondent filed a counter affidavit of Seven (7) Paragraphs deposed by one Mr. Fabian Maduakolam Iheanacho, a Claimant/Respondent on record on the 2nd day of November, 2018. The Appellants/Applicants filed a further affidavit of Eight (8) Paragraphs on the 7th day of November, 2018 together with a Reply on point of law dated on the 7th day of November, 2018.

The Appellants who are aggrieved with the ruling of 08/11/2022 dismissing the Appellants’ Motion on Notice for an order to amend Statement of Defence appealed to this Court via Notice of Appeal filed on the 19th day of November, 2018. It is anchored on two Grounds of Appeal with their particulars and reliefs sought. ​ The Record of Appeal was compiled and transmitted to the Court of Appeal on the 3rd day of December, 2018 in compliance with the Rules of Court.

The Appellants’ Brief was dated and filed on the 5th day of December, 2018 while the Respondent’s Brief of Argument was filed on the 14th day of December, 2018 together with the Notice of Preliminary Objection and the Written Address but all were deemed as properly filed and served on the 9th day of June, 2022. The Appellant filed written address in opposition to the Respondent’s Notice of Preliminary Objection and the Appellant’s Reply Brief of Argument filed on the 24th day of December, 2018.

A Preliminary Objection must be resolved first so that the Court does not embark on a futile adjudication where it does not have jurisdiction or where the matter before the Court is already dead. See Akere vs. Governor of Oyo State (2012) 12 NWLR (Pt. 1314) 240. PRELIMINARY OBJECTION The Respondent greeted the appeal with a Preliminary Objection on the ground that the appeal was filed without the leave of the High Court or the lower Court, contrary to Section 242(1) of the Constitution of the Federal Republic of Nigeria 1999; Section 14 of the Court of Appeal Act. ​

That Record of Appeal contravenes the provisions of Order 8 Rule 7(b) & (c) and Order 10 Rule 1(c) of the Rules of the Court of Appeal Rules, 2016.

Learned counsel for the objector formulated a sole issue for determination of the objection to wit: “Whether this appeal is competent, without the leave of the lower Court or this Court or observation of Order 8 Rules 7(b) and (c) of the Court of Appeal Rules.” In arguing the above objection, the Appellants raised two issues for determination to wit: 1) “Whether the leave of this Court or the High Court is required for this appeal to be filed” 2) “Whether the Records of Appeal was properly compiled and transmitted.” A careful look at the above sets of issues shows that they are identical in substance and I therefore married them together as one issue.

The learned counsel for the Objector, Chief K. A. Mbamara, Esq., submitted that the appeal does not involve question of law alone. That the appeal is a mixture of law and fact. He placed reliance on the case of Anukam vs. Anukam (2008) 33 Nigeria Supreme Court Quarterly Law Report P. 1040 at P. 1069 and Nwadike vs. Ibekwe (1987) 4 NWLR (Pt. 67) p. 718. That it is the law that the Court should look at both the Grounds of Appeal and the Particulars of Error to decipher what is involved.

The learned counsel for the objector further contended that the Ground of Appeal involve a mixture of law and fact and fact will be put beyond doubt, if the Court considers the prayers sought by the Appellants, involves consideration and exercise of the discretionary powers of the Court. He cited the case of Kano Textile vs. Gloede & Hoff Ltd. (2005) 22 Nigeria Supreme Court quarterly Report P. 346 AT 354. He also submitted that the Appellants never sought and obtained the leave of Court before filing the Notice of Appeal. That this appeal is incompetent. He cited the case of Oshatoba vs.

Olujitan (2000) 5 NWLR (Pt. 655) P. 159, P. 172 Paras. B-D. The learned counsel for the objector further submitted on the issue of improper record of appeal that the Appellants did not observe Order 8 Rules 7(b) & (c) of the Court of Appeal Rules in the compilation of the Record of Appeal. That there is no schedule of fee paid, thereby breached the Order 8 Rule 7(c) of the Court of Appeal Rules. In conclusion, he urged the Court to dismiss the appeal based on the grounds in the preliminary objection.

In response to the objector’s submission, the learned counsel for the Appellants submitted that the appeal was filed pursuant to Section 241(1)(b) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and it is an appeal as of right and the Appellant does not require leave of either Court below or Court of Appeal. He cited the case of Enterprise Bank Plc. vs. Dan Dollars Oil (Nig.) Ltd. (2015) LPELR-24510 (CA) Page 17, Para C-D. He further submitted that the two Grounds of Appeal are grounds of law alone.

He referred to Pgs. 87-88 of the Record of Appeal and read as follows that the above ground of appeal qualifies as a ground of law going by the definition of a ground of law by the Supreme Court in the case of Fasuyi vs. PDP (2019) All FWLR (Pt. 972) 219 AT 240, Para E; “A ground of law alone is a complaint against the lower Court’s misunderstanding of the law applicable to the facts which are either proved, admitted or undisputed.” The learned counsel for the Appellants contended that the law is now trite that the application and non-application of undisputed facts is a question of law.

He placed reliance on the case of Arinze vs. Afribank Plc. (2000) FWLR (Pt. 6) 1032 AT 1037, Paras. B-F, Ojemen & Ors. vs. Momodu & Ors. (1983) 3 S.C 173 and U.B.A Ltd. vs. Stahlbau Gmbh (1989) 3 NWLR (Pt. 110) 374 AT 399. On the issue of improper record of appeal, the learned counsel to the Appellants submitted that the instant appeal is an interlocutory appeal and so it is the Court of Appeal Practice Direction, 2013 which should regulate it by virtue of the Provisions of Item 2(c) of the said practice Direction.

That the compilation and transmission of Records of Appeal in respect of interlocutory appeals are guided by item 6(b) and (h) of the Court of Appeal Practice Direction, 2013. He cited the case of Martin Schroeder & Co. vs. Major & Company Nig. Ltd. (1989) All NLR 201 AT 208. RESOLUTION OF PRELIMINARY OBJECTION A preliminary objection is specie of objection which if sustained will render proceedings in the matter unnecessary. See APC vs. INEC (2015) 8 NWLR (Pt. 1462) 531.

The Respondent’s Preliminary Objection seeks to terminate the Appellants’ appeal in limine that the appeal was filed without the leave of the High Court or this Court, contrary to Section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999; Section 14 of the Court of Appeal Act and the Record of Appeal also contravenes the Provisions of Order 8 Rule 7(b) and Order 10 Rule 1(c) of the Court of Appeal Rules, 2016.

I have carefully perused and deeply reflected on the respective submissions of parties on this preliminary objection, I have taken a particular countenance of the submissions made by the learned counsel for the Appellants in paragraph 3.3 of their Written Address in opposition to the Respondent’s Notice of Preliminary Objection that where the grounds of appeal are grounds of law alone, a party can appeal as of right without leave irrespective of the fact that the decision appealed from is interlocutory or final. See Enterprise Bank Plc. vs.

Dan Dollars Oil (Nig.) Ltd. (2015) LPELR-24510 (CA) Page 17, Paras.

C-D where the Court of Appeal held that: “Also by the Provisions of Section 241(b) where the Grounds of Appeal involves questions of law alone, the appeal is also as of right in decisions of the Federal High Court or the High Court of a State no matter whether Courts aforementioned sit as Court of first instance or the decisions are interlocutory or final.” In the instant appeal, I have visited the Grounds of Appeal enumerated in the Notice of Appeal at Pgs. 87-88 of the Record of Appeal and I am of the opinion that the Grounds of Appeal are purely grounds of law alone, which do not require the Appellants to seek leave of either the lower Court or Court of Appeal.

The criteria for distinguishing a ground of law alone from the one of mixed law and facts has been identified and settled by the apex Court for a long time now. The established principles for the purpose were restated by Muhammad, JSC in the case of Akinyemi vs. Odu’a Invest. Co.

Ltd. (2012) 17 NWLR (1329) 209 AT 230-1, as follows: (1) “The first and foremost is for one to examine thoroughly the grounds of appeal in the case concerned to see whether they reveal a misunderstanding by the lower Court of the law, or a misapplication of the law to the facts already proved or admitted. (2) Where a ground complains of a misunderstanding by the lower Court of the law or a misapplication of the law to the facts already proved or admitted, it is a ground of law…” Now, the Grounds of Appeal filed by Mr. O. J.

Irerhime, Esq., learned counsel for the Appellants are as follows: GROUNDS OF APPEAL 1. The learned trial Judge erred in law in holding that the Appellants’ motion for leave to amend did not comply with the provision of Order 24 Rule 3 of the High Court of Rivers State (Civil Procedure) Rule, 2010, when:… PARTICULARS OF ERROR i. The Defendant exhibited to the motion, the proposed amended Statement of Defence as required by the rules. ii.

A list of the additional witnesses, depositions on oath of the additional witness and a list as well as copies of the documents to be relied upon which Defendants filed simultaneously with the motion on 26/10/2018, complied with the provisions of Order 24, Rules 3 of the Rules of Court. 2. The learned trial Judge erred in law and thereby occasion a miscarriage of justice in dismissing the Appellants’ motion to amend for alleged failure to comply with the provisions of the rules, rather than striking it out, when:… PARTICULARS OF ERROR i.

By Order 5 Rule 1 of the Rivers State High Court (Civil Procedure) Rules, 2010, such non-compliance is a mere irregularity which can be corrected. ii. By Order 24 Rule 1 of the High Court (Civil Procedure Rules, 2010, a party can amend its pleading at any time before judgment. iii. The appropriate order to be made where there is a non-compliance with the rules is that of striking out. iv. If at all, there was non-compliance with the rules, the Claimant waived it when he joined issues with the Defendants on the motion to amend without raising the issue of non-compliance. 3.

Further grounds of appeal may be filed upon receipt of the records of appeal. Flowing from the above Grounds of Appeal and Particulars therein, are purely grounds of law alone, it is complain against the error of lower Court where it was held that motion for amendment of statement of defence does not comply with the Order 24 Rule 3 of the High Court Rules, 2010, as it was stated in the ruling of the lower Court as follows: “I have perused the Defendant’s Motion on Notice and the supporting documents; it does not comply with Order 24(3) Rules of High Court, 2010.

Prayers 2, 3, and 4 are most inappropriate.” In the case of Fasuyi vs. PDP (Supra) cited by the Appellants’ counsel where the Supreme Court defined grounds of law alone as: “A ground of law alone is a complaint against the lower Court’s misunderstanding of the law applicable to the facts which are either proved, admitted or undisputed.” I hold that the Appellants’ appeal was filed in total compliance with Section 241(1)(b) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.

Therefore, it is an appeal as of right and the Appellants does not require leave to appeal to this Court. In the light of this, the preliminary objection which the objector raised to terminate the Appellants’ appeal in limine is bereft of any morsel of merit. Accordingly, the preliminary objection is overruled and dismissed. CONSIDERATION OF THE APPEAL During the hearing of the appeal, learned counsel for the Appellants O. J. Irerhime, Esq., adopted the Appellants’ Brief of Argument filed on 05/12/2018 and Appellants’ Reply Brief filed on 24/12/2018.

He urged the Court to allow the appeal and set aside the ruling of the trial High Court. The Respondent’s brief was settled by Chief K. A Mbamara dated 13/12/2018 and filed on 14/12/2018 but deemed argued on 09/06/2022 in the absence of the learned counsel of the Respondent after hearing notice was served on him on 7th of June, 2022 but failed to appear.

In the Appellants’ Brief of Argument, he distilled one issue for determination to wit: “Whether the learned trial Judge is right in holding that Appellants’ application for amendment of the statement of defence did not comply with the provisions of Order 24, Rule 3 of the Rules of Rivers State High Court.” (Based on Grounds 1 and 2 of the Grounds of Appeal) The Respondent in his Brief of Argument crafted two issues for determination to wit: 1) “Whether the learned trial Judge is not right in dismissing the application for amendment. 2) Whether the Appellants have made out any case to warrant grant of the prayers sought herein.” A careful look at the above sets of issues shows that they are identical in substance.

Indeed, the Respondent’s two issues can be subsumed under the Appellants’ issue. I therefore marry them together as one issue framed by the Appellants’ counsel. ISSUE ONE This issue one is predicated on whether the learned trial Judge is right in holding that Appellants’ application for amendment of the statement of defence did not comply with the Provisions of Order 24 Rule 3 of the High Court of Rivers State (Civil Procedure) Rules, 2010.

The Appellants’ counsel submitted that the grant or refusal of an application for leave to amend a party’s pleading is at the discretion of the Court and it is required to be exercised judicially and judiciously. He referred to the case of Mamman vs. Salaudeen (2005) 18 NWLR (Pt. 958) 478 @ 504, Paras.

B-E thus: “Generally speaking the law is that an amendment to pleadings for the purpose of determining the real issues in controversy between the parties ought to be allowed at any stage of the proceedings, including on appeal, unless such amendment will result in injustice or surprise or embarrassment to the other party or the applicant is acting mala fide or by his blunder the applicant has done some injury to the Respondent which cannot be compensated by way of costs or otherwise.

In short, a consideration by way of application for leave to amend pleadings involves the exercise of discretion by the Court and must not only act judicially but also judiciously. The discretion is therefore to be exercised so as to do what justice and fair play may require having regards to the facts and circumstances of the particular case.” and the case of Jessica Trading Company Ltd vs. Bendel Insurance Company Ltd. (1993) 1 NWLR (Pt. 271) 538.

He further submitted that the reason given by the Lordship for the dismissal of Appellants’ motion for amendment of their statement of defence is stated by him at page 85 of the records as follows: “I have perused the Defendants’ Motion on Notice and the supporting documents, it does not comply with Order 24(3) Rules of High Court, 2010. Prayers 2, 3, and 4 are most inappropriate.” That His Lordship went further at page 86 of the records to hold as follows: “The application not been (sic) in compliance with the Rules of Court quoted above lacks merit.

This application is a mere delay tactics to frustrate proceedings in this matter.” The Appellants’ counsel contended that the Appellants’ motion to amend its statement of defence was filed on 26/10/2018. That to comply with the Provisions of Order 24 Rule 3 therefore, applicants need to file along, a list of any additional witness to be called, together with his deposition on oath and a copy of any document to be relied upon as a result of the amendment. That he submitted that the applicant complied fully with the above requirements thus: “a.

At page 55 of the records is an “Additional list of witness”. The stamp of the registry on it shows clearly that it was filed on 26/10/2018, the same date of filing the application to amend. b. At pages 56-62 are the witnesses statements (depositions) of witnesses to be called pursuant to the amendment. They bear the stamp of the lower Court registry date 26/10/2018 as the date they were filed. c. At pages 63-70 of the records is “additional list of documents” with the listed documents attached thereto.

The list and attached documents were also filed on 26/10/2018 as the stamp of the registry on them will testify.” Counsel for the Appellants also submitted that when a Court raises a point suo motu and basis his decision on it, he is duty bound to call on the parties, especially the party who would be adversely affected by the decision to address him on the point, otherwise the decision is a nullity for violation of the party’s right to fair hearing. He cited the case of Shasi & Ors. vs. Smith & Ors (2009) 18 NWLR (Pt. 1173) 330 AT 346, Para. B-C.

He argued further that the Courts have since moved away from technicality to ensure the doing of substantial justice. He placed reliance on the case of P.H.M.B vs. Edosa (2001) FWLR (Pt. 41) 1799 AT 1809 Para. F and Afolabi vs. Adekunle (1983) NSCC, Vol. 14, 398 AT 405, lines 25-29.

In conclusion, Appellants’ counsel urge the Court to allow the appeal, set aside the decision of the Court below dated 8th November, 2018 and grant the application to amend the statement of defence. ​ In response, learned counsel for the Respondent submitted that the application of the Appellants for amendment of statement of defence did not comply with the provisions of Order 24, Rule 3 of the Rules of High Court Rivers State, 2010. He referred to the case of First Bank of Nigeria Plc. vs. Abraham (2008) 12 SC (Pt. 111) 108 AT 126 lines 1-6.

That what the said Order 24(3) require is to attach and file the motion on notice together with the affidavit, proposed amendment, list of any additional witness to be called, his written statement on oath and a copy of any document to be relied upon.

That in this case, the Appellants’ motion was filed separately with an affidavit, with the proposed amended statement of defence as the exhibit, while the Amended Statement of Defence was separately endorsed, initiated and assessed by the process registrar with the other documents such as list of document and witness deposition. ​ He contended that the party must obtain order for amendment first under Order 24 of the High Court (Civil Procedure) Rules before filing the amended process.

That it is not correct for the Appellants to say that the Court raised the issue of Order 24 of the High Court rules and the inappropriateness of prayers 2, 3, and 4 suo motu. He cited the case of Dalek Ltd vs. OMPADEC (2007) 29 Nigeria Supreme Court Quarterly Report 1706 AT 1740 and Ikenta Best Ltd vs. A.G Rives State (2008) 33 Nigeria Supreme Court Quarterly Report P. 1073 AT P. 1106, Ratio 3. On issue two of the Respondent’s Brief which is predicated on whether the Appellants have made out any case to warrant grant of the prayers sought in this Court.

That the Appellant have not shown the Court that they have met the conditions for amendment to warrant asking this Court to grant their application for amendment. He cited the case of Sabrue Motors Nig. Ltd. vs. Rajab Enterprises Nig. Ltd. (2002) 4 SCNJ 270 AT 282. Learned counsel for the Respondent submitted that the Appellants applied all manner of delay to delay and frustrate the trial of the case at the lower Court. That they filed their statement of defence almost one year after they were served with the claims and sought series of adjournment. He cited the case of Okon Udo Akpan vs.

The State (1991) 5 SCNJ 1 AT 13. He urged the Court to discountenance the argument canvassed by the Appellants and resolve the issues in favour of the Respondent. The Appellants’ Reply Brief is unnecessary because the Respondent did not raise any new issue that requires to be responded to. The essence of reply brief is to give the Appellants an opportunity to react to new issues in the Respondent’s Brief of Argument. In the instance case, the circumstance does not arise and therefore it is needless to consider the reply brief. It is discountenanced. See Eromosele vs.

FRN (2018) NWLR (Pt. 1629) 60. RESOLUTION OF ISSUES Having considered the arguments of the parties for and against the issue of whether the trial Judge is right in holding that Appellants’ application for amendment of the statement of defence did not comply with the provisions of Order 24, Rule 3 of the Rules of the Rivers State High Court, 2010, I am inclined towards the argument of the Appellants that the law is trite that a party can validly amend his process before a Court at any time 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 the amendment can even be made at appeal level, even at the Supreme Court. See Abah vs. Jabusco (2008) 3 NWLR (Pt. 1065) 526 AT 545. It is pertinent to note that an amendment of pleadings will be refused where if granting of it will entail injustice to the Respondent or where the Applicant is acting mala fide or whereby his blunder has done some injury to the Respondent that cannot be compensated by costs or otherwise. See Ojah vs.

Ogboni (1976) 1 NMLR 95 AT Pg. 96 Paras. C-D. There is nothing in the instant appeal to suggest that the grant of the application of the Appellants for amendment of statement of defence will entail injustice to the Respondent. There is therefore no basis for the trial Court to refuse the application of the Appellants to amend their pleading.

I have gone through the printed Record of Appeal transmitted to this Court that the only sole reason given by the learned trial Court in his ruling delivered on 18/11/2018 for the refusal and dismissal of the Appellants’ application for the amendment of their statement of defence, as can be seen at Pages 85-86 of the record as follows: “I have perused the Defendants motion on notice and the supporting documents; it does not comply with Order 24(3) Rules of the High Court 2010.

Prayers 2, 3 and 4 are most inappropriate.” From the foregoing therefore, I am of the opinion that the refusal and dismissal of the application of the Appellants by the trial Court was not right just because of mere irregularity. See P.H.M.B vs. Edosa (2001) FWLR (Pt. 41) 1799 AT 1809, Para F.

For the avoidance of doubt, below are the words of the Supreme Court on this issue: “…this Court is replete with multiplicity of decided authorities to the effect that a Court is entitled to grant an application brought under a wrong rule of Court or statute provided there is legal basis for it.” See Maja vs. Samouris (2002) FWLR (Pt. 98) 818 (2002) 9 NSQR 546 AT 567. In fact, this Court had this to say in Uchendu vs.

Ogboni (1999) 5 NWLR (Pt. 603) 337 AT 351 (1999) SCNJ 64 thus: “It is trite that a particular rule of Court or law under which a motion is brought is generally stated in the motion paper but failure to do this will not make the motion incompetent nor the order upon which the motion is granted invalid, so long as there exist a rule of law which can back up the motion.” Per Okoro JSC (Pp. 21-25, Para. F) in the case of Bode Thomas vs.

Federal Judicial Service Commission (2016) LPELR-48124 (SC) has this to say: “…where a Court has jurisdiction to make an order, the fact the power of the Court is involved under a wrong law or rule of Court is no reason for not making the order or where it is made, it is no reason for setting it aside. See also the cases of Salawu Oke & Ors. vs. Musilim Aiyedun & Anor (1986) 2 NWLR (Pt. 23) 548, Dr. Maja vs. Mr. Costa Samouris (Supra) and Witt & Busch Ltd. vs. Dale Power Systems Plc. (2007) LPELR-3499 (SC).” Generally, Orders and Rules of Courts are made to be obeyed.

However, a Court has the power to bend its rules, where such rules will cause injustice. Denying the case/application of a party over an issue that the Court has powers brought under a wrong order or Rules of the Court will do injustice. After all, clients should not be allowed to suffer due to mistakes of their lawyers. Justice should be above mere legal jargons and technicalities. This is part of the reasons why the effect of an application brought under a wrong order or rule of Court is that the application is valid and as good as one brought under a correct order of rules of Court.

Flowing from the above, I therefore hold that this appeal is meritorious and is accordingly allowed. Appellants had prayed for the grant of the motion for amendment of the Statement of Defence dated and filed on 26th day of October, 2018. In keeping with the provisions of Section 15 of the Court of Appeal Act, 2004 and Order 4 Rules 3 & 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 the 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 26/10/2018 is hereby granted.

Defendants/Applicants shall file the said Amended Statement of Defence, forthwith, at the lower Court and serve same on the Respondent 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.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Abdullahi, JCA. with nothing extra to add.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I had the opportunity of reading in draft the judgment just delivered by my learned brother, RIDWAN MAIWADA ABDULLAHI, J.C.A. His Lordship has exhaustively analyzed the two issues involved in the appeal. I completely agree with his reasoning and conclusion. ​ The appeal is meritorious and is allowed. I abide by the consequential orders made therein.

Judgment

PETER OYINKENIMIEMI AFFEN, J.C.A. (Delivering the Leading Judgment) : Introduction This interlocutory appeal is an offshoot of two consolidated suits pending before the High Court of Lagos State which granted leave to the Respondents (qua defendants) to amend their joint statements of defence in a considered ruling delivered by Kasali, J. on 31/5/17. The purpose of the amendment was to enable the Respondents subjoin a counterclaim to their statement of defence after the Appellant (qua claimant) had closed his case.

The Appellant could not see his way clear that the lower Court properly exercised its discretion in granting leave to amend in the manner and at the time it did. He consequently lodged the present appeal vide a Notice of Appeal filed out of time on 23/11/17, albeit with the leave of Court granted on 22/11/17. The ruling appealed against lies at pp. 359 – 369 of the records, whilst the Notice of Appeal is copied at pp. 406 – 409 thereof.

Issues for determination The three (3) issues distilled for determination in the Amended Appellant’s Brief of Argument filed on 22/2/18 (which were adopted without modification in the Respondent’s Brief filed on 28/8/18) are: (i) Whether the Defendants/Respondents can amend their Joint Statement of Defence by incorporating a Counter-Claim after the Claimant/Appellant has closed his case? (ii) Whether the Defendants/Respondents can by an amendment to their Joint Statement of Defence incorporate a Counter-Claim which raises issues based on facts that arose after the issue of the Writ of Summons in these Consolidate suits? (iii) Whether the Defendants/Respondents in these consolidated suits have a competent Statement of Defence in these suits?

Appellant’s submission The Appellant referred to Order 24 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2012 (in force at all material times) and recited the principles governing the grant or refusal of amendment as enunciated in a litany of decided cases (notably: OKEOWO v MIGLIORE (1979) 11 SC 139, STATE v GWONTO (1983) SCNLR 142, OJOGBORO v KUKU [1986] 3 NWLR (PT 31) 697 and MAERSK LINES v ADDIDE INVESTMENTS LTD [2002] NWLR (PT 778) 317, AMADI v THOMAS APLIN & CO LTD (1970) 1 ALL NLR 409 and AKANINWO v NSIRIM [2008] 9 NWLR (PT 1093) 439) and contended that the implication of granting leave to amend after the close of the claimant’s case on 18/6/15 is that “pleadings in the consolidated suit would have to be reopened for the claimant to file a defence to the defendant’s counterclaim, and the claimant will have to reopen his case to accommodate his evidence in defence of the counterclaim”.

The Appellant insisted that he would be overreached thereby, placing reliance on UNION BANK NIGERIA PLC v LAWAL [2012] 6 NWLR (PT. 1295) 186, OGIDI v EGBA [1999] 10 NWLR (PT 621) 42 as well as AKANINWO v NSIRIM [2008] 9 NWLR (PT 1093) 439 (on the judicial definition of ‘overreaching’ and mala fide).

He pointed out that the grant or refusal of amendment is not automatic but subject to the discretion of the trial Judge exercised judicially and judicially, as well as taking into consideration the peculiar facts of each case, calling in aid the cases of MONOPRIS NIG LTD v OKENWA [1995] 3 NWLR (PT 383) 375, SAFFIEDINE v COMMISSIONER OF POLICE (1965) 1 ALL NLR 54 at 56, UGBOMA v OLISE (1971) 1 ALL NLR 8, UNIVERSITY OF LAGOS v AIGORO (1985) 1 SC 265 at 272 and UNIVERSITY OF LAGOS v OLANIYAN (1985) 1 SC 295 at 345; and argued that the reason put forward by the Respondent for seeking amendment was to bring in facts that arose after the commencement of the suit, and no facts showing any formal slip or inadvertence of counsel was placed before the lower Court which exercised its discretion without being guided by the evidence adduced.

The case of MENAKAYA v MENAKAYA [2001] 16 NWLR (PT 738) 203 at 253 (on the proposition that discretion cannot be exercised in vacuo) was cited. The Appellant maintained that granting leave to amend statement of defence by incorporating a counterclaim after the close of claimant’s case distorts the natural order of trial as provided in S. 210 of the Evidence Act, 2011 and Order 30 Rules 7, 8, 11(1) and 13 of the High Court of Lagos State (Civil Procedure) Rules 2012.

On Issue 2, it was contended that the lower Court erred in granting leave to amend when the Respondents “stated and admitted” that the amendment introduced new facts that occurred since the institution of the suit, citing BIODE PHARMACEUTICAL INDUSTRIES LTD v ADSELL (NIG) LTD [1986] 5 NWLR (PT 46) 1070 at 1076 SAMSON SALAKO & ORS v BABATUNDE WILLIAMS & ANOR (1998) 11 NWLR (PT 574) 505 (CA), ADETUTU v ADEROHUNMU [1984] 15 NSCC 389 at 396, ALHAJI FOLORUNSHO LYANDA KANUBI & ANOR v CHIEF SUNDAY OLAGUNJU & ANOR (2012) LPELR-9823(CA) as well as GOWON v IKE-OKONGWU [2003] 6 NWLR (PT. 815) 38 (2003) 1 SC (PT III) 57 on the proposition that “a defendant will not be allowed to raise by way of an amendment to statement of defence a counter-claim in respect of a cause of action that arose subsequent to the issue of the writ”;

and that the lower Court held that “evidence in support of the amendment is already on record before the Court” whereas the Respondents have not offered any evidence in the consolidated suits, and this Court ought to disregard a finding of fact which is not supported by the evidence, placing reliance on R v OGODO (1961) ALL NLR 700, and UZUEGBU v PROGRESS BANK OF NIGERIA LTD [1985 – 1989] 4 NBLR 400 at 412.

The Appellant’s contention in respect of Issue 3 is that the lower Court did not consider the competence of the statement of defence dated 19/7/11 which the Respondents sought to amend as well as whether the Respondent (qua defendants) can adduce any evidence in the consolidated suits, insisting that a Court must always give a full and dispassionate consideration to all issues raised or canvassed before it, calling in aid EZEMONYE OKWARA v DOMINIC OKWARA & ANOR (1997) LPELR-6291(CA), OYEDIRAN v AMOO (1970) 1 ALL NLR 313 at 317 and OJOGBUE v NNUBIA (1972) 6 SC 227.

This Court was urged to exercise its wide inherent powers under S. 15, Court of Appeal Act, 2004 and Order 4 Rule 3 Court of Appeal Rules 2016, citing OBI NWANZE OKONJI & 4 ORS v GEORGE NJOKANMA & 2 ORS [1991] 7 NWLR (PT. 202) 131 at 146 –per Olatawura JSC, EBBA v OGODO (1984) 1 SCNLR 372 and EZEMONYE OKWARA v DOMINIC OKWARA & ANOR (1997) LPELR-6291(CA).

The Appellant insisted that the statements of defence in the consolidated suits constitute a nullity for having been filed outside the period of 42 days prescribed in Order 15 Rule 1(2) of the High Court of Lagos State (Civil Procedure) Rules 2012 without obtaining leave to do so out of time, calling in aid IFEZUE v MBADUGHA (1984) 5 SC 79 at 118, OGAR v JAMES (2001) FWLR (PT 67) 930 and ICHU v IBEZUE [1999] 2 NWLR (PT 591) 437 (1998) LPELR-6418(CA); and that they cannot be amended for being fundamentally defective ab initio, incompetent and/or non-existent in law, citing NEW NIGERIA BANK PLC v DENCLAG LTD [2005] 4 NWLR (PT 916) 549 and UNION BANK NIGERIA PLC v LAWAL [2012] 6 NWLR (PT 1295) 186.

The Court was urged to resolve all three issues for determination in favour of the Appellant. Respondents’ submission On behalf of the Respondents, it is contended that the rules of Court permit parties to amend their pleadings twice during trial to reflect the real issues in controversy and achieve substantial justice in the matter, and the lower Court rightly granted leave to amend the statements of defence in the consolidated suits having regard to the affidavit evidence placed before it.

Order 24 Rules 1 and 2 of High Court of Lagos State (Civil Procedure) Rules, 2012 and the cases of BARODA v IYALABANI [2002] 13 NWLR (PT. 785) 551 at 593 – per Ogundare JSC, CELTEL (NIG) LTD v ECONET WIRELESS LTD (2011) 3 NWLR (PT 1233) 156 at 167 –per Agbo JCA, YUSUF v ADEGOKE [2007] 11 NWLR (Pt.1045) 332 as well as KHALIFA v. ONOTU & ANOR (2016) LPELR-41163, OKOLI v AJOSE [1994] 8 NWLR (Pt. 362) 300 at 312, ETA v DAZIE [2013] NWLR (PT. 1359) 248 at 267 – 268 and ALSTHOM S. A. v SARAKI [2000] 14 NWLR (PT 687) 415 at 424 (on the object of amendment of pleadings) are cited.

The Respondent’s maintained that the Appellant was not overreached in any way as the amendment did not introduce facts of a different complexion; that contrary to the Appellant’s assertions, the facts constituting the counterclaim arose out of the same cause of action and are neither independent of the main claim nor alien to the Appellants; that the amendment merely clarified facts surrounding the dealings between the Appellant and the initial management of the Respondent which revealed underhand conduct and impropriety;

and that the lower Court made it clear that the Appellant remains at liberty to file a defence to counterclaim and apply to reopen his case and lead evidence in support thereof since a counterclaim is a separate action tried along with the main claim for purposes of convenience and to avoid multiplicity of action, citing USMAN v GARKE [2003] 14 NWLR (Pt. 840) 261 and NSEFIK (SINCE DEAD) & ORS v MUNA & ORS ​(2013) LPELR21862;

and that the Courts have always been inclined to grant an application for the recall of a witness as the circumstances of the case warrant in the interest of justice, citing ADEKANYE ELEKO v AKINRINIOLA WILLIAM OLOKUNBORO (1978) LPELR-FCA/B/9/78, insisting that the Applicant’s grouse is not that he was denied the opportunity to reopen his case to enable him lead evidence in defence of the counterclaim.

On Issue 2, the Respondents queried, rhetorically, whether a claimant or defendant should sit back and do nothing when facts dependent on a cause of action occur after the institution of a case, and maintained that they are not foreclosed from amending their statements of defence to raise facts contained in their counter-claim which arose out of the same subject matter after the institution of the consolidated suits for the wholesome consideration of all the facts in dispute as well as avoid a multiplicity of suits, placing reliance on OGBONNA v ATTORNEY-GENERAL, IMO STATE [1992] 1 NWLR (PT 220) 647, JERIC (NIG) LTD v UBN PLC [2000] 15 NWLR (PT 691) 447 and CONOIL PLC v DUTSE (2016) LPELR- 40236(CA).

The Court was urged to hold that the objective of the counterclaim is to ensure that justice is done between the parties and there is ample opportunity for the Appellant to file a defence to counterclaim and recall his witness.

On Issue 3, the Respondents relied on EGBO v AGBARA (1997) 1 NWLR (PT 481) and SAUDE v ABDULLAHI (1989) NWLR (PT. 116) 387 in contending that non-compliance relating to time for doing a thing under the Rules of the Court is treated as an irregularity that will not vitiate the proceedings, and that the Appellant did not raise the issue of irregularity of the statement of defence until he sought to oppose the application for amendment. Reference is made to Order 5 Rule 1 (2) and 2 (1) of the Lagos High Court (Civil Procedure) Rules, 2012.

The Respondents maintained that even if arguendo the Joint Statement of Defence dated 19/7/11 was filed out of time, the irregularity has been overtaken, negatived and swept away by the subsequent filing of an Amended Joint Statement of Claim by the Appellant (qua claimant) on 29/1/16 to which the Respondents have not yet had the benefit of consequential amendment; that in order for a procedural irregularity of the nature complained of by the Appellant to be sustained, the objection must not only be raised timeously, but must equally be shown to have occasioned a miscarriage of justice, which is not the scenario in the case at hand, calling in aid the cases of KHALID v ISMAIL & ANOR (2013) LPELR-22325(CA), BAJOGA v GOVT., F.R.N [2008] 1 NWLR (PT 1067) 85 at 115 as well as NOIBI v FIKOLATI [1987] NWLR (PT 52) 619 in support of the proposition that a party cannot take advantage of an irregularity to which he has acquiesced.

The Respondents insisted that our Courts have since moved away from technical justice to substantial justice and will not shut their eyes to a Court process before it albeit irregular in the interest of justice, placing reliance on DAVID & ANOR v. AKINRUNTAN & ORS (2015) LPELR- 25643(CA) at 23 – 24 and MOBIL PRODUCING NIG UNLIMITED v MONOKPO [2003] 18 NWLR (PT 852) 346 at 411 and 412. This Court has been urged to affirm the ruling of the lower Court and dismiss the instant appeal in the interest of justice.

Resolution of appeal In determining this appeal, let us take bearing from Issue 3 which is a challenge to the competence or validity of the statements of defence in the consolidated suits in respect of which leave to amend was granted in the ruling appealed against. The Appellant’s contention is that there were no valid statements of defence in the consolidated suits before the lower Court that could have been amended because they were filed out of time without seeking and obtaining leave of Court so to do.

The affidavits of service (copied at pp. 40 – 44 of the records) reveal that the writs of summons, statements of claim and accompanying processes in the consolidated suits were served on 11/5/11 whilst the statements of defence were filed on 19/7/11.

The prescription of Order 15 Rule 1(2) High Court of Lagos State (Civil Procedure) Rules 2012 is that “[a] defendant shall file his statement of defence, set off or counterclaim, if any, not later than 42 days after service on him of the claimant’s originating process and accompanying documents…” The statements of defence were filed outside the stipulated 42 days, and there is no indication anywhere in the records that the Respondents sought and obtained leave of Court to file defence out of time.

But the relevant enquiry is as to the legal effect of a statement of defence filed out time without leave of Court. Does failure to comply with the timeline for delivering a statement of defence go to the roots of the competence of the defence so filed as forcefully contended by the Appellant? I would hate to think so.

Even without the necessity of seeking any external aid, Order 5 Rule 1 (2) of the Lagos High Court (Civil Procedure) Rules, 2012 makes it clear beyond peradventure that “Where at any stage in the course of or in connection with any proceedings there has by anything done or left undone been a failure to comply with the requirements as to time, place, manner, or form, the failure shall be treated as an irregularity and may not nullify such steps taken in the proceedings. The Judge may give any direction as he thinks fit to regularize such steps”.

Quite clearly, this provision of the rules of the lower Court defeats the Appellant’s contention without further assurance, even as the steps taken by him subsequent to the filing of the statements of defence point compellingly to waiver of whatever irregularity arising from the Respondents’ failure to file their defence within time.

By Order 5 Rule 2(1), “An application to set aside for irregularity any steps taken in the course of any proceedings may be allowed where it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity”, whilst subrule 2 provides that: “An application under this rule may be by summons or motion and the grounds of objection shall be stated in the summons or notice of motion”. The Applicant did not raise any objection by way of summons or motion as enjoined by the rules of Court.

He merely alleged irregularity by way of opposition to the Respondent’s application for amendment. This runs afoul of Order 5 Rule 2(1); and it seems to me ironic that a party seeking to enforce the provisions of the rules of Court against his adversary would equally fail to comply with the dictates of the same rules of Court. What is more, it cannot escape notice that the Appellant had taken several steps in the proceedings before alleging that the statements of defence were plagued by irregularity.

The statements of defence being objected to were filed on 19/7/11 albeit out of time, but the records reveal that the Appellant (qua claimant) filed amended statements of claim in the consolidated suits on 29/1/16, and proceeded to open and close his case before he subsequently raised the alleged irregularity in opposition to the Respondent’s application to amend their statements of defence.

This being so, whatever irregularity that attended the statements of defence was effectively acquiesced in and condoned by the Appellant, and it is too late in the day to rake up the fact that they were filed out of time. The law is fairly well settled that a party is not at liberty to take advantage of an irregularity to which he has acquiesced: NOIBI v FIKOLATI [1987] NWLR (PT 52) 619, AKHIWU v THE PRINCIPAL LOTTERIES OFFICER, MID-WESTERN STATE & ANOR (1972) 1 All NLR (PT 1) 229 at 234 and ADEBAYO & ORS v SHONOWO & ORS (1969) 1 All NLR 176.

Indeed, matters procedural must be raised at the earliest opportunity (upon being served with the Court process) before taking any further steps in the proceedings, otherwise, the party alleging it will be foreclosed. See KHALID v ISMAIL & ANOR (2013) LPELR-22325(CA). That is the scenario we are confronted with in the instant appeal. In any event, the law, as I have always understood it, is that a defence irregularly introduced (whether a statement of defence or counter affidavit to originating summons) is not void but merely voidable, and the Court cannot shut its eyes to it.

See UNITED BANK FOR AFRICA v DIKE NWORA [1978] 11 – 12 SC 1 and UNITED TECHNICAL COMPANY v PAMOTEI [1989] 2 NWLR (PT 103) 244 (1989) 3 SC (PT. 1) 79. The Respondents’ failure or neglect to file the statements of defence (that were subsequently amended) within the 42-day period stipulated in the Rules of the lower Court is a mere procedural irregularity that lacks the potency to vitiate the entire proceedings or even the ruling appealed against. This sounds like a death knell on Issue 3, which is hereby resolved against the Appellant.

Let us shift attention to Issues 1 and 2, which border on the propriety of the amendment granted by the lower Court.

Specifically, Issue 1 interrogates whether the Respondents (defendants) can amend their joint statements of defence in the consolidated suits by incorporating a counterclaim after the close of the Appellant’s (claimant’s) case; whilst Issue 2 focuses on whether the Respondents are at liberty to incorporate a counterclaim which raises issues of fact that arose after the issuance of the writ of summons in the consolidate suits by way of an amendment to their joint statements of defence.

It is obvious that these two issues are intricately intertwined and can conveniently be considered together in order to conserve scarce judicial time and resource. A cardinal principle of our jurisprudence is that Courts of law exist to decide the rights of parties before it and not to punish them for errors or mistakes they may make in the conduct of their cases by deciding otherwise than in accordance with their rights.

The necessary corollary of the above principle is that a party may at any stage of the proceedings before judgment alter or amend his pleadings or endorsements as may be necessary for the purpose of determining the real question(s) in controversy in a case.

There is no kind of mistake or error which, if not fraudulent or intended to overreach, the Courts cannot correct if this can be done without injustice to the other party; and even though blunders occur nowadays with disturbing regularity, a Court of law (which is also a Court of equity) imbued with a sense of justice should not suffer itself to be stampeded into chasing the shadows of these blunders rather than facing the substance of the justice of the case. See ADEKEYE v AKIN-OLUGBADE [1987] 3 NWLR (PT. 60) 214.

The aim of an amendment is to prevent the manifest justice of a cause from being defeated or delayed by formal slips which arise from the inadvertence of counsel, and the Courts have through the years taken a stance that however negligent or careless the slip may have been or however late the proposed amendment, it ought to be allowed if this can be done without injustice to the other side, for a step taken to ensure justice cannot at the same time and in the same breath be used to perpetuate injustice on the adverse party. See ADEKEYE v AKIN-OLUGBADE supra.

A conspectus of decided cases reveals a general inclination or leaning by the Courts to grant an amendment save in situations where: (i) the amendment sought will occasion injustice to the other party; (ii) the applicant is acting mala fide; or (iii) the applicant has by his blunder done some injury to the respondent which cannot be compensated by costs or otherwise.

See OJAH & ORS v OGBONI & ORS (1976) 4 SC 69, (1976) 1 NMLR 95 at 99, OKAFOR v IKEANYI (1979) 3 – 4 SC 99 at 106, OKEOWO v MIGLIORE (1979) 11 SC 138 at 197 & 199 – 200, ADETUTU v ADEROHUNMU (1984) 1 SCNLR 515, [1984] NSCC 389, KODE v YESUFU [2001] 4 NWLR (PT 703) 392, AJAKAIYE v ADEDEJI [1990] 7 NWLR (PT 161) 192 and ADELAJA v ALADE [1994] 7 NWLR (PT. 358) 537.

Crucially, an amendment may be sought and granted at the close of the plaintiff’s case [see OKOLO v NWAMU (1973) 2 SC 59 at 68], and even if it is in consequence of an objection raised by the adverse party. See ITA v DADZIE [2000] 4 NWLR (PT 652) 168 at 181 (CA).

In an application for amendment of pleadings, the Court will take into consideration 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(s) in controversy; and (d) the time when the amendment is sought.

See ALSTHOM S. A. v SARAKI [2000] 14 NWLR (PT 687) 415. ​A party may substitute an entirely new pleading for an earlier one insofar as no injustice is occasioned to the adverse party, but an amendment that will enable the applicant plead a fact that was not in existence at the time of commencement of the action will not be allowed. See MOBIL OIL v COKER (1971) 1 NMLR 56 at 58.

And just as a claimant will not be allowed to bring into his case an entirely fresh cause of action which arose after the action had commenced, a defendant will also not be allowed to raise by way of an amendment to the statement of defence a counter-claim in respect of a cause of action that arose subsequent to the issue of the writ: GOWON v IKE-OKONGWU [2003] 6 NWLR (PT 815) 38, (2003) LPELR-1336(SC) 1 at 9 and ESHELBY v FED. EUROPEAN BANK (1931) ALL ER 840.

But an amendment, whenever granted by the Court, relates back to the date of the original process amended; and notwithstanding that the original process does not become otiose and the Court cannot shut its eyes against such old process because it still forms part of the Court processes which the Court is entitled to look at [see OWONYIN v OMOTOSHO (1961) 2 SCNLR 57, SALAMI v OKE [1987] 4 NWLR (PT. 63) 1 at 9, AGBAISI v EBIKOREFE [1997] 4 NWLR (PT. 502) 630 at 648, AGBAHOMOVO v EDUYEGBE [1999] 3 NWLR (PT 594) 170 at 182 – 183 and BALONWU v OBI [2007] 3 NWLR (PT 1028) 488 at 536], what stood before the amendment is no longer material before the Court and ceases to define the issues to be tried.

See COL. ROTIMI v MACGREGOR (1974) 11 SC 133 at 152, OSITA NWOSU v IMO STATE ENVIRONMENTAL SANITATION AUTHORITY [1990] 2 NWLR (PT 135) 688, VULCAN GASES LTD v GESELLSCHAFT [2001] 9 NWLR (PT. 719) 610 and TSOKWA OIL MARKETING CO v BANK OF THE NORTH LTD (2002) 1 NSCQR 738 at 753. The point to vigorously underscore is that even though the Courts are liberal in allowing amendments at any stage of the proceedings before judgment, the Courts have evolved different principles to govern applications for amendment made at different stages of the litigation.

See DIAMOND BANK PLC v AMOBI UGOCHUKWU [2008] 1 NWLR (PT. 1067) 1 at 36. Whilst an amendment sought at the incipient stages of the litigation may readily be granted almost as a matter of course, the attitude of the Court is markedly different where an amendment is sought after either party has closed his case or both parties have closed their cases. But irrespective of the stage at which it is sought, the grant or refusal of an amendment is always guided by the imperative to dispense justice to the parties, having regard to the peculiar facts and circumstances of each case.

Thus, whilst the defendants were allowed to amend their statement of defence after the plaintiffs had closed their case in OJAH & ORS v OGBONI & ORS supra, it was held in ADETUTU v ADEROHUNMU [1984] NSCC 389 at 396 that the trial Court was right in refusing an amendment that would allow the defendant set up fresh facts after the case went on trial and up to the time the plaintiffs closed their case.

See also GEORGE v DOMINION FLOUR MILLS LTD (1963) 1 All NLR 71 (where an amendment that would change the nature of the case sought after the close of the claimant’s case was refused owing to the injustice or surprise it will occasion), as well as DIAMOND BANK PLC v AMOBI UGOCHUKWU supra at 37 wherein this Court (per Rhodes-Vivour, JCA as he then was) held that an application for amendment brought after the claimant had closed his case was rightly refused by the trial Court since the claimant would have been unable to call evidence on the new issues raised, thereby denying him fair hearing.

As there is undoubtedly a high tendency that an amendment sought very late in the day could overreach, or occasion injustice to, the adverse party, the Courts have evolved the principle that the only purpose for which an amendment could be allowed after the close of evidence by both parties is to bring the pleadings in conformity with the evidence led. See TAIWO v AKINWUNMI (1975) 4 SC 143, IBANGA v USANGA (1982) 5 SC 138, IMONIKHE v ATTORNEY GENERAL OF BENDEL STATE [1992] 7 SCNJ 197 at 207 at 208 and BAMISHEBI v OTE [1995] 8 NWLR (PT. 411) 1 at 9 – 11].

And even at that, the Courts act rather slowly and with utmost circumspection in order to avoid occasioning injustice to the adverse party. Indeed, in order for an application to amend pleadings at the close of evidence to succeed, the applicant must point at any piece of evidence on record which is capable of supporting the proposed amendment. See ADEAGBO v YUSUF [1990] 6 NWLR (PT 158) 588 at 591. Also, an amendment to bring pleadings in line with evidence should not be granted where the evidence led is already discordant with the pleadings.

See OBINYIRUKA v ALICHE [1991] 4 NWLR (PT. 183) 87 at 99. In the matter at hand, the trial Court granted leave to the Respondents (defendants) to amend their statement of defence to incorporate or subjoin a counterclaim after the close of the claimant’s case. At pp. 367 – 368 of the records, the lower Court held thusly: “Having read all the processes for and against this application very carefully, it is my view that the aim of amendment is to prevent the manifest justice of a case from being defeated or delayed by formal slips which arise from the inadvertence of Counsel.

An amendment of pleadings can be granted at any stage of the pleadings provided it does not introduce a new cause of action or will overreach or is prejudicial to the other party. See THE SHELL PET. DEV. (NIG) LTD v AMBAH (supra). If by an amendment a, the statement of claim will disclose a cause of action, the Court will grant an amendment sought, but the suit will be if an amendment cannot make the statement of claim, disclose a cause of action. I have checked the amendment sought by the Defendant. It is to incorporate a counter claim to the defence of the Defendant.

A counter claim to all intent and purposes is a separate action, for convenience and speed joins it with his defence. The counter claim filed by the Defendant in the instance case which is a cross-action which is in the same position as an action, and it is subject to the rules of Court as pleadings. See DABUP v KOLO (1993) 9 NWLR (PT 317) 254 AT 270. I HAVE CHECKED THE COUNTER CLAIM IT DISCLOSES CAUSE OF ACTION Against the Claimant, the Court will grant the amendment. Whether or not it will fly is another thing entirely.

I have find (sic) that the amendment sought by the Defendant will not create a new case, and will not cause injury to the Claimant that cannot be compensated by cost. Evidence in support of this amendment is already on record before the Court. See IMONIKHE v A-G BENDEL (1992) 6 NWLR (PT 248) 396 AT 409 The Claimant is at liberty to file a defence to the counter claim and recall his witnesses if need be.” Now, there is no general rule against the grant of an amendment to incorporate a counterclaim after the close of the claimant’s case.

As stated hereinbefore, the grant or refusal of an amendment is always guided by the imperative to dispense justice to the parties, having regard to the peculiar facts and circumstances of each case. Thus, leave to amend statement of defence to incorporate a counterclaim after the close of the claimant’s case was granted in FAYEMI v OLORUNFUNMI [1998] 1 NWLR (PT 534) 523.

I reckon however that leave to amend would be refused where it seeks to incorporate a counterclaim that raises an entirely fresh cause of action that accrued after the issuance of the writ [see GOWON v IKE-OKONGWU supra]; or the amendment introduces matters that inflict surprise on a claimant who had closed his case and can no longer reply thereto [see BIODE PHARMACEUTICAL INDUSTRIES LTD v ADSELL (NIG) LTD supra, ADETUTU v ADEROHUNMU supra and GEORGE v DOMINION FLOUR MILLS LTD supra].

Against this backdrop, a careful and insightful examination of the records reveals that the amendment sought was to enable the Respondents subjoin a counterclaim against the Appellant for refund of payments made to him for survey work alleged to have been negligently done, which fact came to light after the institution of the suit. The main claim itself arose from services rendered by the Appellant to the Respondents in surveying their land, and the alleged negligence on the part of the Appellant are not fresh facts or issues per se.

The counterclaim cannot therefore be said to entail fresh facts or raise a course of action that was not in existence at the time writ was issued.

The payments the Respondents seek to recover by way of counterclaim were made long before the Applicant filed the consolidated suits, and the case of GOWON v IKE-OKONGWU supra upon which the Appellant has relied is patently inapposite and inapplicable The law is well settled that a counterclaim, for all intents and purposes, is a cross-action, fresh and completely independent, separate and distinct from the one commenced by the original claimant, but triable with the main claim for reasons of convenience. See PETERSIDE v I. M.

B. (NIG) LTD [1993] 2 NWLR (PT. 278) 712 at 731-732 and IGE v FARINDE [1994] 7 NWLR (PT. 354) 42. A counter-claim connotes “a claim for relief asserted against an opposing party after an original claim has been made, that is a defendant’s claim in opposition to or as a set-off against the plaintiff’s claim”: MAOBISON INTER-LINK LTD v U.T.C. (NIG.) PLC (2013) 9 NWLR (PT 1359) 197 at 209 –per Ariwoola, JSC (now Acting CJN).

Quite unlike a set-off which is only considered as a shield, a counterclaim is both a shield and a sword available to a defendant who has “any claim” against the claimant whether or not arising from the same transaction or series of transactions. See Order 19 Rule 6, High Court of Lagos State (Civil Procedure Rules) 2019. A counterclaimant is therefore a claimant in his own right [see UNION BANK PLC v ISHOLA [2001] FWLR (PT. 81) 1868 at 1892], and like any other claimant in an action, he must prove his case in order for him to obtain judgment.

See OBMIAMI BRICK & STONE LTD v ACB LIMITED [1992] 3 NWLR (PT 229) 260 at 298- 299, JERIC NIGERIA LIMITED v UNION BANK OF NIGERIA PLC [2001] 7 WRN 1 at 18, PRIME MERCHANT BANK v MANMOUNTAIN COMPANY [2000] 6 WRN 130 at 134, WALTER v SKYLL NIG. LIMITED [2000] 13 WRN 60 at 98, OGBONNA v ATTORNEY-GENERAL, IMO STATE [1992] 1 NWLR (PT 220) 647, NSEFIK & ORS v MUNA & ORS [2013] VOL. 12 MJSC (PT 1) 116, BILANTE INT’L LTD v NDIC [2011] 15 NWLR (PT 1270) 407, KOLADE v OGUNDOKUN [2017] 18 NWLR (PT 1596) 152 and ATIBA IYALAMU SAVINGS & LOANS LTD v SUBERU [2018] 13 NWLR (PT 1639) 387.

Taking cognisance of the fact that the counterclaim arose from the same course of action as the main claim and the Respondents did not seek to set up any fresh course of action that can be said to take the Appellant by surprise, the lower Court cannot be faulted for granting the amendment sought, notwithstanding that the Appellant had closed his case before the amendment was sought and granted.

I take the considered view that the decision of the lower Court is consistent with the interest of justice and the principle that an amendment to enable matters in controversy between the parties to be completely adjudicated upon and all issues settled once and for all ought to be allowed. Especially is this so as the Appellant (claimant) is not foreclosed in any way from defending the counterclaim. As the lower Court pointed out in the ruling appealed against, “the Claimant is at liberty to file a defence to the counter claim and recall his witnesses if need be”.

This Court (per Uwaifo, JCA as he then was) held in FAYEMI v OLORUNFUNMI supra at 529 – 530 that a plaintiff in an action where a counterclaim is put by a defendant is also a defendant for the purposes of the counter-claim, and it is only after the counterclaimant (defendant) had closed his case that the claimant (as defendant to the counter-claim) is entitled to defend the counterclaim by putting in evidence in rebuttal notwithstanding the fact that he has closed his case as ‘plaintiff’. This aptly captures the scenario in this matter.

Since it is only after the close of Respondents’ case on the counter-claim that the Appellant would be allowed to put in his defence to the counter-claim, I fail to see what injustice the amendment granted by the lower Court would occasion to the Appellant. It would have been a different thing entirely if the lower Court had refused an application by the Appellant (claimant) to put up a defence to the counterclaim or to reopen his case to enable him call evidence in rebuttal of the counterclaim raised by the Respondents (defence) after he had closed his case.

Issues 1 and 2 ought to be resolved against the Appellant, and I so resolve them. Conclusion The resolution of all three issues for determination against the Appellant signposts the failure of this appeal, and I hereby record an order dismissing it for being bereft of merit. The ruling of the High Court of Lagos State delivered on 31/5/17 is affirmed. The parties shall bear and discharge their respective costs in this ill-fated appeal.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in advance, the leading judgment delivered by my learned brother: Peter Oyinkenimiemi Affen, JCA. I endorse in toto the judicial reasoning and conclusion in it. I, too, penalise the appeal with a deserved dismissal. I abide by the consequential orders decreed in the leading judgment.

ONYEKACHI AJA OTISI, J.C.A.: My learned brother, Peter Oyinkenimiemi Affen, JCA, made available to me a copy of the judgment, in draft form, in which this appeal was dismissed. ​I agree with, and adopt as mine the comprehensive resolution of the issues as done by my learned brother. I see no merit in this appeal. It is also dismissed by me. I abide by the orders made in the leading judgment.

Judgment

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment) : This is an appeal against the ruling and final decision of the High Court of the Federal Capital Territory, Abuja, delivered on 7th February, 2013 and 21st July, 2015, respectively, in Suit No: FCT/HC/CV/207/2010. This case was originated by the 1st Respondent who as a Plaintiff took out a Writ of Summons against the Appellant, 2nd and 3rd Respondents as Defendants at the lower Court. The Amended Writ of Summons was taken out on 22nd July, 2010 and sought the following reliefs in the Statement of claim, thus:- 1.

A Declaration that the plaintiff is the rightful allottee and owner of all that property known as plot No. 613 with Old file Number AB 302, New File Number AB 10328 of about 2,100 Square Metres with Cadastral Zone B11 of Kaura District, Abuja. 2. A Declaration that the plaintiff is entitled to peaceful possession and occupation of all that property known as plot No. 613 with Old File Number AB 302, New Number AB 10328 of about 2,100 Square Metres within Cadastral Zone B11 of Kaura District, Abuja ​3.

A Declaration that the purported double allocation and or reallocation of plot No. 613 with Old File Number AB 302, New File Number AB 10328 of about 2,100 Square Metres within Cadastral Zone B11 of Kaura District. Abuja by the 1st Defendant to the 3rd Defendant is illegal, a breach of due process of law, null, void and of no effect. 4.

An Order of this Honorable Court, restraining perpetually the Defendants, their agencies, department, allies, agents, officers, workman and all those deriving or claiming through them from further interference, obstruction and disturbance of plaintiff’s rights over the property known as plot 613 with Old File Number AB 302, New File Number AB 10438 of Kaura District, Abuja. 5. Any Order or Orders as this Honourable Court may make in the circumstances.

The 1st and 2nd Defendants, now 2nd and 3rd Respondents denied the claim of the 1st Respondent vide a Joint Statement of Defence on the 29th March, 2011. ​The parties joined issues on the Writ and the matter proceeded to trial. The 1st Respondent testified on her behalf as PW1 and tendered several documents in evidence which were marked as Exhibits.

The 2nd and 3rd Respondents called a lone witness and tendered several documents in evidence which were admitted and marked as Exhibits On the 5th October, 2012 the 1st Respondent moved an application which was similar to an earlier application that was heard on the merit and dismissed by the trial court, the Court granted the second application which was seeking for reliefs praying the court for amendment of pleadings. At the close of trial, learned counsel at the trial Court adopted their respective final written addresses filed on behalf of the parties.

In a reserved judgment delivered by the trial Court on the 21st July, 2015, the trial Court entered judgment for the 1st Respondent, granting the relief sought in the Writ. Aggrieved by this decision, the Appellant filed the instant appeal vide an Amended Notice of Appeal filed on the 31st day of May, 2018. There are twelve grounds of appeal listed in the notice of appeal.

The Record of Appeal was compiled and transmitted to this Court on the 20th April, 2016, Briefs of Argument were filed and exchanged in the following manner: Appellant’s Brief of Argument dated 30th May, 2018, but filed 31st May, 2018.1st Respondent’s Brief of Argument dated 12th February, 2021 and filed the same date. While Appellant’s Reply Brief of Argument was dated 18th February, 2021 and filed on 22nd February, 2021.

However, before we proceed to the issues in the substantive appeal, let us treat the issues raised by the Appellant from the Interlocutory ruling of the trial Court, following the motion granted to argue fresh issues. The Appellant raised three issues which are: 1. Whether or not the learned trial Judge was right to grant the 1st Respondent reliefs contained in motion (M/513/2012) of 5/10/2012 when the reliefs sought are substantially similar with the reliefs sought in Motion (M/10688/2012) previously dismissed by the trial Court. (Distilled from Grounds 1 and 2) 2.

Whether the learned trial Judge was right having regard to the circumstance of the case to allow the 1st Respondent further amend her pleadings when indeed, the amendment sought introduced new issues which completely changed the case of the 1st Respondent against the Appellant. (Distilled from Grounds 3 and 4) 3.

Whether the learned trial Judge was right to have premised his grant of the reliefs sought by the 1st Respondent in Motion M/513/2012 of 01/10/2012 particularly as it relates to the reliefs seeking leave of Court to amend her pleadings and to reopen her case for the purpose of tendering relevant documents earlier omitted “to mistake or inadvertence of counsel” when no such excuse or indeed any reason was canvassed in the affidavit in support of the application. (Distilled from Grounds 5 and 6).

I will proceed to consider and resolve the three issues together in one fell swoop, as the issues are connected one way or the other. ISSUES ON RULING OF MOTION M/513/2012: Learned counsel for the Appellant while arguing this issue cited the case of Omeika v. Omeika (2013) 13 NWLR (Pt. 1371) 423 AT 432 and argued that where a trial Court has given a decision in a case on the merit, the Court is functus officio in relation to the case and it cannot ordinarily reopen it for fresh hearing and that the only option available to a dissatisfied party is to appeal against it. Counsel cited A.D.H Ltd v.

Min., FCT (2013) 8 NWLR (Pt. 1357) 493 AT 521 and submitted that the learned trial Judge having heard and determine the former application on merit cannot hear the latter application substantially similar to the one previously heard on merit without offending the doctrine of functus officio. Counsel relied on the cases of TSA Industries Ltd v. FBN Plc (No. 1) (2012) 13 NWLR (Pt. 1320) 326 AT 345; African Re-Insurance Corp. v. J.D.P Construction (Nig.) Ltd. (2003) 13 NWLR (Pt. 838) 609; Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156; Kode v. Yusuf (2001) 4 NWLR (Pt. 703) 392.

Learned counsel for the Appellant submitted that an appellate Court is loath to interfere with the way a lower Court exercised its discretion but will be compelled to interfere if the discretion was wrongly exercised, or was tainted with some irregularity or was in breach of law, or where the Court finds that it is in the interest of justice to interfere. Counsel relied on the case of Ajuwa v. S.P.D.C.N Ltd (2011) 18 NWLR (Pt. 1279); University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143; Imonikhe v. Attorney General, Bendel State (1992) 7 SCNJ 197 George & Ors v.

Dominium Flour Mills Limited (1963) 1 All NLR 71; Mrs. C. I. Adetutu v. Mrs. W. O. Aderohunmu & Ors (1984) 6 SC 92; Willoughby v. I.MB Limited (1987) 1 NWLR (Pt. 48); Tiwani Limited v. Citi Trust Merchant Bank Limited (1997) 8 NWLR (Pt. 515); Bamishebi v. Ote (1995) 9 SCNJ 220 AT 228; Lawrence v. Lord Norreys (1888) 39 Chd. 213.

Learned counsel for the Appellant further submitted that where a trial Court takes into consideration extraneous matter or where it shuts its eyes to cogent facts presented to it or hazard a guess as was in the instant case, to arrive at a finding or decision; such finding or decision will be taken to be perverse and will be set aside on appeal. Counsel cited Sapo v. Sunmonu (2010) 11 NWLR (Pt. 1205) 374; Christaleb Plc v. Majekodunmi (2011) 5 NWLR (Pt. 1240) 294 AT 308; Shofolahan v. State (2013) 17 NWLR (Pt. 1383) 281 AT 312.

In response, learned counsel for the 1st Respondent argued that all issues raised by a party in an appeal must derive from the grounds of appeal and the only exception is where a Respondent wish to challenge the jurisdiction of the Court by way of Preliminary Objection. Counsel relied on Yadis Nigeria Limited v. Great Nigeria Insurance Company Limited (2007) LPELR-3507 (SC); Tiza & Anor v. Begha (2005) LPELR-3251 (SC); Ohikhuare v. Malami & Ors (2013) LPELR-22348 (CA); Uboh v. FRN (2019) LPELR 48739 (CA).

Learned counsel for the 1st Respondent submitted that the Appellant is not the party that is entitled to bring such a complaint. She is not a party covered by the Public Officers Protection Act. She is a private party and nowhere in the suit was it indicated that she performed any act in the capacity as to be covered by the Public Officers Protection Act. Counsel relied on Airtel Networks v. George & Ors (2014) LPELR-22951 (CA); Mobil Producing Nigeria Unltd. v. Lasepa & Ors (2002) LPELR- 1887 (SC).

Learned counsel for the Appellant in his reply brief argued that the issue of jurisdiction is so fundamental that it can be raised by any of the parties to the matter or suo motu by the Court and anyhow by either of the litigating parties at any stage of the proceedings even for the first time on appeal at the Supreme Court for the reason that, parties cannot by themselves by consent, confer jurisdiction on a Court. Counsel relied onAccor (Societe Anonyme) v. H.I.R Ltd (2019) 18 NWLR (Pt. 1703) 44 AT 55; Anyanwu v. Ogunewe (2014) 8 NWLR (Pt. 1410) 417; Kuranga v.

Benge (2015) LPELR-25977; UBA & Anor v. Ezekiel (2018) LPELR-43779; Tukur v. Govt, of Gongola State (1989) 9 SC AT 34; Adu v. Lagos State Taskforce on Environmental and Special Offences Unit (2017) 11 NWLR (Pt. 1575) 32. ​In the instant appeal, the grievances of the Appellant against the interlocutory ruling and consideration were well placed before this Court. The trial Court had dismissed Motion reference no: M/10688/2012, before considering the later Motion reference no: 5/10/2012. The handling of the latter Motion is what is being challenged in the appeal.

Let me bring to light the Motions as captured in the Record of Appeal. The first Motion No: M/10688/2012. The Motion prayed for: 1. An Order of this Honourable Court granting leave to the Plaintiff to recall the plaintiff’s sole witness. 2. An Order of this Honourable Court granting leave to the Plaintiff to file additional witness statement on oath. 3. An Order of this Honourable Court recalling the 1st and 2nd Defendants’ sole witness. 4. And for such further order or orders as this Honourable Court may deem fit to make in the circumstances. ​It was heard on 17/6/2012 at pages 254-255.

Then it was ruled upon on 11/7/2012 at pages 256-265. The Motion was refused for lacking in merit. The second Motion was heard on 12/11/2012. It was ruled upon at pages 266 to 274. The Motion had the following reliefs: 1. An Order of this Honourable Court granting leave to the Plaintiff/Applicant to further amend her statement of claim. 2. An Order of this Honourable Court granting leave to the Plaintiff/Applicant to file additional witness statement on oath. 3.

An Order of this Honourable Court granting leave to the Plaintiff/Applicant to reopen her case for the purpose of tendering relevant documents earlier omitted. 4. An Order of this Honourable Court deeming the Plaintiff’s Further Amended Statement of Claim and the Additional Witness Statement on Oath filed separately but along with this Motion as properly filed and served, all requisite fees having been paid.

This Motion was ruled upon and the trial Court in allowing the Motion said at pages 273 to 274, as follows: In the instant application, I hold the firm view that the amendment sought is for the purpose of determining the real issue in controversy between the parties and it will not overreach or prejudice the defendant. The Supreme Court in a recent decision in the case of Ologun v. Fatayo (2013) 1 NWLR Pt. 1325 pg. 303 at 316-317 para.

E-B, held thus “The aim of amendment is usually to prevent the manifest justice of the cause from being defeated or delayed by formal slips which arise from the inadvertence of counsel. It will certainly be wrong to visit the inadvertence or mistake of counsel on a litigant.

The Courts have therefore through the years taken a stand that however negligent or careless may have been the slip, however late the proposed amendment, it ought to be allowed if this can be done without injustice to the other side, for a step taken to ensure justice cannot at the same time be used to perpetuate an injustice on the opposite party.

The test as to whether a proposed amendment should be allowed is therefore whether or not the party applied to amend can do so without placing the opposite party in such a position which cannot be redressed by that panacea which heals every sore in litigation namely costs”. In the light of what is stated above, I am of the considered view that this application ought to be granted since it has not introduced a new issue and it has not overreached or prejudiced the Defendants. This application is accordingly granted as prayed for in the interest of doing substantial justice.

The grievances of the Appellant are that the trial Court had in the Motion refused the request of the 1st Respondent for filing additional witness statement on oath. That having once refused the application, the Court cannot revisit it. This issue as raised cannot be raised in vacuo without a consideration of its impact on the course of justice. The purpose of every Court in adjudication is to ensure that justice is delivered to the parties in the case. In carrying out this task, it is required of the Court to ensure that the interest of justice and no more is the primary consideration.

Justice, it is well known also demands that the interest of the opponent or respondent is factored into the consideration of the Court. A quick look at the two Motions in contention in this case will show that the two are similar but not the same. The earlier Motion had no contemplation of amending the statement of claim as the second Motion did. The request for amendment of statement of claim was made based on the desire of the 1st Respondent/Applicant to amend her claim. The grant of such a request is discretionary.

The law is sacrosanct that such exercise must be carried out judicially and judiciously having regards to the facts and circumstances of the case. A clear view of the decision of the trial Court in respect of the said Motion shows that the trial Court was justified in granting the Motion in the interest of justice. The Appellant has not in the appeal placed any justifiable reason to show that the amendment has caused him any injustice.

The law is well settled that upon amendment of the statement of claim, the defendant is at liberty to amend his statement of defence in so far as is necessary to meet the facts introduced by the amendment. Failure to amend will leave the Respondent with his original statement of defence. See the case of Mobil Oil (Nig.) Plc v. IAL 36 INC (2000) 6 NWLR (Pt. 659) 146. In the instant case, the 1st Respondent amended his claim after the Court allowed the leave sought for the amendment. The amendment then gave the Court the opportunity to determine the real controversy between the parties.

There are no flaws in the trial Court’s decision to allow the 1st Respondent the leave to amend his statement of claim. The issues raised in the appeal are therefore, in this wise hereby resolved against the Appellant.

On the substantive issue in the instant appeal, counsel for the Appellant distilled a lone issue in the Appellant’s Brief of Argument dated 3rd day of May, 2018, thus: Whether the learned trial Judge was right to hold that the allegations of fraud and forgery made against the appellant and the 2nd and 3rd Respondents by the 1st Respondent further amended statement of claim were proved beyond reasonable doubt just for the reason that no reply was filed or that the 1st Respondent was not cross-examined. (Distilled from Grounds 7, 8, 9, 10, 11 and 12). ​While arguing this issue, learned counsel for the Appellant cited Section 138 (1) and 138 (2) of the Evidence Act, 2011 and submitted that in any proceeding, whether criminal or civil where allegation of the commission of a crime is in issue, the allegation must be proved beyond reasonable doubt and the burden of proving that any person had been guilty of a crime or wrongful act is, subject to the provision of Section 141 of the Act, on the person who assert it, whether the commission of such act is or is not directly in issue in the action.

Counsel relied on Otukpo v. John (2013) 7 NWLR (Pt. 1299) 357 AT 382-383; M.M.A Inc v. N.M.A (2012) 18 NWLR (Pt. 1333) 506 AT 547; Adewale v. Olaifa (2012) 17 NWLR (Pt. 1330) 478 AT 521; Nnachi v. Ibom (2004) 16 NWLR (Pt. 900) 614; Pam v. Mohammed (2008) 16 NWLR (Pt. 1112) 1 AT 91; Azenabor v. Bayero University, Kano (2009) 17 NWLR (Pt. 1169) 96 AT 115-116; Agienoji v. C.O.P Edo State (2007) 4 NWLR (Pt. 1023)23.

Learned counsel for the Appellant submitted that in an action for declaration of title, the onus is on the claimant who must succeed on his own case and not rely or take advantage of the defendant’s weakness or mistake to succeed. Counsel relied onIroagbara v. Ufomadu (Supra) AT 59-600; Orji v. D.T.M (Nig.) Ltd (2009) 18 NWLR (Pt. 1173) 467; Odogwu v. State  (2013) 14 NWLR (Pt. 1373) 74 AT 103; Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941); Okpara v.

FRN (1977) 4 SC. ​In response, learned counsel for the 1st Respondent submitted that the Appellant and the 2nd and 3rd Respondents argued that in the face of various allegations of impropriety and forgery, failed to show that the certificate of occupancy so produced was obtained following due process as was done by the 1st Respondent. Counsel relied on Ilona v. Idakwo & Anor (2003) LPELR-1496 SC; Afolalu v. The State (2010) LPELR-197 (SC); Samuel Theophilus v. The State (1996) LPELR-3236 (SC); Idundun v. Okumagba (1976) 9-10 S.C 227.

Learned counsel for the 1st Respondent submitted that a Court will only allow an amendment of pleadings after the close of evidence if it is only to bring the pleadings in line with the evidence and no new evidence will be required. Counsel relied on the cases of Taiwo & Ors v. Akinwunmi & Ors (1975) LPELR-3132 (SC); Dike v. The A.G. & Commissioner for Justice, Imo State & Ors (2012) LPELR-15383 (CA); Ojah v. Ogboni (1976) 10 NSCC Pg. 244 AT 247; Okafor v. Ikeanyi (1979) 12 NSCC Pg. 42 AT 47; Adetutu v. Aderohunmu (1984) 15 NSCC Pg. 389; Omaye & Anor v. Omagu & Ors (2007) LPELR-3558 (CA).

Counsel urged the Court to dismiss the appeal with substantial cost. Learned counsel for the Appellant in his Reply Brief, cited the case of NNADIKE & ANOR v. NWACHUKWU​ (2019) LPELR-48131 (SC) and argued that where there is a subsisting title over land in favor of one party, that title cannot be extinguished by the mere issuance of a C of O to another party without valid revocation of the earlier title. Counsel relied on the cases of Dzungwe v. Gbishe (1985) 2 NWLR (Pt 8) 528; Omiyale v. Macaulay (2009) 7 NWLR (Pt. 1141) 597; Eperokun & Ors v. UNILAG (1986) SC; Pate v.

Muhammad (2016) LPELR-41175 (CA); Ugbo v. Aburime (1994) 8 NWLR (pt. 160) PT. 1019; Ashiru v. Olukoya (2006) 11 NWLR (Pt 990) Pt. 1 AT 23; Section 131 (1) (2), 132 and 133 (1) of the Evidence Act. Learned counsel for the Appellant further submitted that the fact that the identity of the Appellant became known to the 1st Respondent after parties had closed their case was not a justification to change the entire cause of action vide an amendment which to all intent and purpose should have been limited to name of parties. Counsel relied on Persons, Names Unknown v.

Sahris International Limited (2019) LPELR-49006 SC. Counsel urged the Court to resolve all issues in favour of the appellant and allow the appeal. Our law is settled that the standard of proof in civil cases is based on the balance of probabilities or the preponderance of evidence. The application of this principle is the responsibility of the trial Court to do a proper evaluation of evidence to enable it arrive at settling in for the party who asserts the affirmative or determine the relative strength of the cases of the two contending parties before the Court. SeeEyo v.

Onuoha & Anor., (2011) LPELR-1873 (SC), Wachukwu & Anor v. Owunwanne & Anor., (2011) LPELR-3466 (SC). In the instant case, the trial Court in its judgment took time to analyze and make findings on the position of the parties as to their entitlement to the plot of land in issue. It was the finding of the Court that the plaintiff (1st Respondent) adduced credible evidence to show that she indeed applied and was offered the disputed plot of land. The Court further found correctly that application for statutory right of occupancy is a condition precedent for the allocation of plot of land.

That the defendants (Appellant, the 2nd and 3rd Respondents in this appeal), did not give any reliable evidence to show that the Appellant even applied for a grant of the plot of land. The trial Court at pages 307 to 310 of the Record of Appeal, examined the evidence placed before it and concluded that the plaintiff had proved her claims against the defendants. It is from the facts before us clear that the 1st Respondent is truly the one who was granted the plot in contention. The findings of the trial Court are unassailable.

There is nothing found in this case that requires this Court to interfere with valid and valuable findings of the trial Court. From the foregoing therefore, I am of the firm view that the issue raised here is resolved against the Appellant. There is no iota of merit in this appeal. The appeal is therefore, dismissed. The judgment of the trial Court in Suit No: FCT/HC/CV/2071/2010, delivered on 4th May, 2015, is hereby affirmed. Parties are to bear their respective costs.

BIOBELE ABRAHAM GEORGEWILL J.C.A.: I was privileged to read in advance, a draft copy of the leading judgment just delivered by my noble lord, Stephen Jonah Adah JCA, and I am in complete agreement with the impeccable reasoning as marshalled out therein as well as the inescapable conclusion reached to the effect that the appeal, in relation to both the Interlocutory ruling and judgment of the lower Court, lacks merit and is liable to be dismissed.

My lords, the two pertinent questions in the appeal against the Interlocutory ruling of the lower Court delivered on 7/2/2013, are namely: whether in the light of the earlier ruling of the lower Court delivered on 11/7/2012, dismissing the first application of the 1st Respondent, the lower Court had become functus officio to deliver the ruling on 7/2/201 on the second application of the 1st Respondent, now appealed against by the Appellant, and if no, then whether the lower Court was right to have granted the latter Application of the 1st Respondent for amendment? ​Now, in law, the Latin phrase “functus officio” ordinarily means a task performed, having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority.

However, in practice the idea is that the specific duties and functions that an officer was legally empowered and charged to perform have now been wholly accomplished and thus, the officer has no further authority or legal competence based on the original commission. This is because the thing which originally had life had become dead or moribund after the performance of the duty or function by the authority.

Thus, a Judge or Court, who has decided a question brought before him becomes “functus officio” and therefore, cannot review his own decision except on grounds of want of jurisdiction, fraud, illegality etc. See Peter James Asifo Egbe V. Mrs. Adebisi George & Anor (2021) LPELR-53503(CA) AT pp. 53-55, per Sir Biobele Abraham Georgewill JCA.

Thus, once a Court of competent jurisdiction delivers its ruling or judgment on a matter, it cannot revisit or review or set aside the said judgment except under certain conditions and more importantly, a Court lack the jurisdiction to determine an issue it is “functus officio” in respect of the issue or where the proceedings relating to the issue is an abuse of Court process. See Buhari V. INEC & Ors (2008) LPELR-814 (SC). See also Dingyadi & Anor V. INEC & Ors (2011) LPELR-950(SC); Alhaji Idris Alaya V. Engr. Adewumi Ademola Isaac (2019) LPELR- 46881 (CA).

So, looking at the principal relief in the first application, which was principally for the recalling of the 1st Respondent’s witness and to file additional witness statement on oath and the principal relief in the second application, which was principally for further amendment of the 1st Respondent’s amended statement of claim, was the lower Court functus officio as vehemently contended for the Appellant in this appeal?

In the leading judgment it has been most admirably resolved that the lower Court was not function officio going by the principal reliefs claimed in the two distinct applications. I agree! It was within the vires of the lower Court to consider the second application on its own merit and if meritorious to grant it as it was under no legal impediment or inhibition to do so by reason of its earlier ruling on completely different and distinct reliefs claimed by the 1st Respondent.

The next pertinent question, which has also been admirably resolved in favour of the 1st Respondent in the leading judgment, is whether the application for amendment by the 1st Respondent has merit and. was thus, rightly granted by the lower Court? I agree that the application for amendment, going by the materials furnished by the 1st Respondent before the lower Court as in the Record of Appeal, was highly meritorious and was therefore, rightly granted by the lower Court.

My lords, in law as soon as it appears that the way in which a party has framed his case will not lead to a decision on the real matters in controversy, it is as much a matter of right of the party to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right and therefore an amendment will be allowed if it is intended to bring the pleadings in line with evidence already led.

However, it must be pointed out at once that notwithstanding the utilitarian role of amendment in bringing into focus the real issue in controversy, yet the Court will not grant amendment to set up a different cause of action or change the character of the case of a party without an amendment of the writ of summons. It is also the law that where an amendment is sought purposely for either the reason of derailment it is certainly done in bad faith. There must in all circumstances be good faith and reason for an amendment to be obliged.

The question of amendment, although open-ended as it may sound, is not however, a free for all match overreaching the cause of justice. It is rather for the just determination of a cause, which makes litigation effectual and meaningful. ​What then can be said to be an amendment within the broader context of the litigation process in our Courts?

An amendment simply put in the correction of an error committed in any process, pleading or proceedings at law or in equity and thus an amendment can be made either as a matter of course or by consent of the parties upon notice to the Court in which the proceedings is pending.

As earlier observed, because the Courts are more concerned with deciding the rights of the parties than in their errors or mistakes, which can be corrected at any stage, an amendment which will not cause injustice to the other party and can at worst be ameliorated by cost will be granted at any stage if it is in the interest of justice. The aim of an amendment, as is commonly agreed is usually to prevent the manifest justice of a case from being defeated or delayed by formal slips which may arise in the prosecution of the case. See Alhaji Abdullahi Adamu V.

Mallam Mumkaiia Isa (2014) LPELR -24169 (CA), per Sir Biobele Abraham Gcorgewill JCA. See also Akoko Edo Traditional Council V. Jafaru Odamah & Ors (2020) LPELR-49664(CA) AT pp. (Pp. 32-34). See also; Okafor V. Ikeanyi (1979) 3-4 SC 99; Chief Eyo Eta V. Chief Okon Dazie (2013) LPELR 20136 (SC); Adekeye V. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214.

Now, in the appeal against the final judgment of the lower Court delivered on 21/7/2015, it has been shown, and quite brilliantly too, in the leading judgment, and with which I am in complete agreement, that the 1st Respondent proved, by the credible oral and documentary evidence led by her, fair and square her entitlement to the relief sought by her to a declaration of tile to the land in dispute, known as Plot No. 613 with Old File Number AB 302, New File Number AB 10328 and situate at Cadastral Zone Bl 1 of Kaura District Abuja.

It is the law that in a claim for declaration of title to land, such as the claim of the 1st Respondent, a party claiming title to land must do so by proving with credible evidence one or more of the five methods of proving title to land, namely: Evidence of traditional history of title, Production of genuine and valid documents of title. Acts of Ownership numerous enough, Acts of possession over a long period of time, and Act of possession of adjacent land long enough to make it probable that the owner of the adjacent land is also the owner of the land in dispute.

The 1st Respondent proved her title fair and square by production of title document and was therefore, entitled to the judgment of the lower Court, as affirmed by the leading judgment. See Idundun V. Okumagba (1976) 6-10 SC 48. See also John Nyomi & Anor V. Engr. Callistus N. Njoku & Anor (2021) LPELR-55558(CA) per Sir Biobclc Abraham Gcorgcwill JCA; Mr. Frank Anyi & Ors V. Chief Harry Ayoade Akande & Ors. (2017) LPELR- 41973(CA) per Sir Biobele Abraham Georgewill JCA; Arum V. Nwobodo (2013) All FWLR (Pt. 688) 870 AT p. 893; Nruamah V. Ebuzoeme (2013) All FWLR (Pt. 681) 1426; Morenikeji V.

Adegbosin (2003) 8 NWLR (Pt. 825) 612; Ani V. Ewo (2004) 1 SC (Pt. 11) 115 AT p. 133; Romaine V. Romaine (1992) NWLR (Pt. 238) 650. ​It is for the above few words of mine, by way of contribution to the fuller reasoning marshalled out in the leading judgment, that I too dismiss this appeal for lacking in merit. I shall abide by the consequential orders made in the leading judgment, including the order as to no cost.

ISAH BATURE GAFAI, J.C.A.: I have read in advance, the judgment delivered by my learned brother Adah, JCA. My lord has painstakingly resolved all the significant Issues in this appeal. I agree with the judgment in its entirety. I will however add my voice in stressing a few points in the lead Judgment. ​Firstly, the grant or refusal of the Orders sought from the trial Court in both Motions of the 1st Respondent (supra) is discretionary.

This Court is not known to interfere with an exercise of discretion by a trial Court save in situations where it is shown that the discretionary exercise is manifestly neither judicial nor judicious; in other words, it evokes a patent view of injustice or perversity. The 1st Respondent’s latter Motion in particular, seeking essentially for amendment of the Statement of Claim undoubtedly lies at the discretion of the trial Court.

The power of a trial Court to allow amendment of pleadings is discretionary and except where the exercise of such discretion is applied wrongly, this Court will not interfere. See Adamaraja vs. Adaramaja (1992) LPELR-25011 (SC); Tabba vs. Lababedi & Anor. (1974) LPELR-3130 (SC), Awoyale vs. Ogunbiyi (1985) LPELR-661 (SC). Furthermore, the provisions of Order 26 Rule 2 of the FCT High Court (Civil Procedure) Rules 2014 under which the Suit ensued provided that: “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 for the purpose of determining the real questions in controversy between the parties.” These provisions also clearly make the grant or refusal of the said Motion discretionary.

Secondly, as alluded to in the lead judgment, there is nothing showing a departure by the trial Court in identifying and applying the correct principles in the grant of the Order sought in the latter Motion. The trial Court properly considered the facts placed before it and formed the correct view that it was just to grant the Orders sought.

Thirdly, although the Orders granted in the latter Motion may appear to be similar to those refused in the earlier Motion, the thrust and effect of the two are entirely different because the latter Motion seeks specifically for amendment of Statement of Claim which is different from the main Order sought in the earlier Motion to recall the Plaintiff’s sole witness. Fourthly, the amendment sought was clearly for the purpose of determining the real question in controversy as can be gleaned from the 1st Respondent’s Further Amended Statement of Claim found at pages 146-152 of the Record.

What is more, nothing prevented the Appellant from amending her Statement of Defence to meet any new facts in the Amended Statement of Claim. In my humble view, the Appellant is merely crying wolf. There is no merit whatsoever in the appeal. In consequence, I too join my learned brother in the lead judgment in dismissing this appeal as one without merit and affirming the judgment of the trial Court.

Judgment

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This appeal is against the final decision of the High Court of Justice, Anambra State sitting at Onitsha Judicial Division (hereinafter referred to as: “the Court below”) Coram: P. C. OBIORA, J. in Suit No: O/390/2004 delivered on the 26th day of February, 2014 wherein the Respondent sued the Appellant for recovery of debt, storage fee and interest on judgment sum. The learned trial Court after considering the evidence of both parties granted the Respondent’s reliefs.

ISSUES FOR DETERMINATION: The Appellant has formulated three (3) issues for determination of this appeal. Thus: 1. Whether the learned trial Court was right when he granted Relief 16(1) & (2) of the Statement of Claim of the Respondent where there are no facts in the Respondent’s pleadings nor was there any evidence adduced in support or proved of that relief. See grounds 3 and 4 of the Appellant’s Notice and Ground of Appeal. ​2.

Whether the learned trial Court was right when he held that the Appellant is the only necessary party before him in the determination of the dispute that arose in the transaction leading to this suit at the Court below. See ground 2 of the Appellant’s Notice and Grounds of Appeal. 3. Whether the action instituted by the Respondent at the Court below is competent wherein the Respondent sued a non-legal person ‘Emeka Madona’ instead of Emeka Ikueze or Remss Global Ltd. See ground 1 of the Appellant’s Notice and Grounds of Appeal.

The Respondent formulated four (4) issues by adopting issues Numbers 1 and 3, as formulated by the Appellant with modifications as issues Numbers 1 and 4 respectively and thereafter formulated fresh issues as issues Numbers 2 and 3, thus: 1. Whether the learned trial Judge was right when he granted Reliefs 16(1) and (2) of the Amended statement of claim in favour of the Respondent? 2. Whether EMEKA MADONA is a business name or natural person who has capacity to sue and be sued in that name? 3. Whether REMS GLOBAL CO. a non-juristic person has legal capacity to transact business in Nigeria? 4.

Whether the action instituted by the Respondent at the Court below is competent wherein the Respondent sued EMEKA MADONA, instead of EMEKA IKUEZE or Rems Global Co. or REMESS GLOBAL LTD? A careful perusal of the issues nominated by the parties across board is clearly identical except for minor issues of semantics. This appeal shall therefore be determined based on the issues nominated by the Appellant. Learned Counsel addressed this Court extensively, citing plethora of decided cases in support of their submissions.

SUBMISSIONS OF COUNSEL: APPELLANT: ISSUE ONE: Whether the learned trial Court was right when he granted Relief 16(1) & (2) of the Statement of Claim of the Respondent where there is no fact in the Respondent’s pleadings nor was there any evidence adduced in support or proof of that relief? In arguing this issue, Counsel submitted that it is one thing to claim a relief and it is another to prove it. See SKYE BANK PLC vs. AKINPELU (2010) 9 NWLR (PT. 1198) 179, 197, PARA. G, ADIGHIJE vs. NWAOGU (2010) 12 NWLR (PT. 1209) 419, 459, PARA. A.

He drew attention to the fact that the Respondent’s claim against the Appellant under the undefended list at all material time in this suit was for the payment of the sum of N1,250,300.00 being the outstanding balance owed to him. The Respondent asserted that the basis for the claim was the services rendered by the Respondent to the Appellant as per Invoice No. 0053 of 15/11/2002 (Exhibit B2). See Pages 3 and 5 of the Records.

It is the further submission of Counsel that Exhibit B2, which is the basis under which the trial Court awarded payment of the sum of N1,563,974.00 to the Respondent clearly stated the balance to be N1,250,300.00. Counsel submitted that this documentary evidence corroborated the initial affidavit evidence of one Ben Okafor (Administrative Officer in the Plaintiff’s company). Counsel argued that there is no other evidence adduced to show that what the Appellant owed the Respondent is N1,563,974.00 as found by the trial Court.

To Counsel, it is the law that witnesses are not permitted to give oral evidence as to the content of a document except in special circumstance; that documents themselves are the best evidence. Counsel cited the case of NEPA vs. EI-FANDI (1986) 3 NWLR (Pt. 32) P 884 Ratios 1 & 2. Counsel stated that the Appellant in his Statement of Defence and Counter-Claim, particularly at paragraph 24 of his Statement of Defence stated that the Respondent sold the balance of his (Appellant’s) goods in his possession. And thus, there are no goods being stored by the Respondent.

See page 35 of the Records of Appeal. Counsel argued that Paragraph 16(2) of the Respondent’s pleading is incompetent. There is no place in all the pleadings of the Respondent either their Statement of Claim or Reply to Statement of Defence and Counter-Claim where the Respondent pleaded either the fact that they stored the goods in a warehouse, which is being paid for neither was there a place they plead or produce a receipt showing the amount they paid for the purported storage.

Counsel stated that it was only at paragraph 15(3) of the reliefs sought by the Respondent in their Statement of Claim that they prayed the Court for storage fee of N1,000.00 per day. Counsel cited the case of ISHOLA vs. U.B.N. LTD. [2005] 6 NWLR (PT. 922) 422, 38-439, PARAS. E-H It is the contention of Counsel that the Respondent did not lead any evidence to show how he arrived at the sum of N396,000:00 which he claimed from the Appellant.

Counsel therefore contended that it is not the duty of the trial Court to grant any relief where no cogent and concrete evidence was led in proof of the claim and that a judgment not predicated on a fair assessment or evaluation of all the evidence in Court is perverse. See the case of NWOSU vs. MBADUGHA (2000) 1 NWLR (PT. 641) 459 AT PARAGRAPH H.

According to Counsel, a thorough perusal of the trial Court’s judgment will disclose that there was nowhere in the entire judgment where the Court evaluated the evidence of the Respondent that led to the conclusion that the Respondent is entitled to the grant of relief 16(2) of the amended statement of claim.

Counsel contended that a Judge before whom evidence is adduced by the parties in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale of justice and see which one between the evidence adduced by the plaintiff and the defendant to see which one outweighs the other. Finally, after invoking the law, if any, that is applicable to the case, the trial Judge will then come to his final conclusion based on the evidence which he has accepted.

See the cases of ABISI vs. EKWEALOR (1993) NWLR (PT. 302) AT 64, EIGBE vs. EIGBE (2012) LPELR 19690 (CA).

Counsel argued that in the instant case, the trial Court never considered any evidence on the issue of relief 2 of the Respondents’ claim because there was no evidence adduced before the Court which the Court will place on the imaginary scale yet the Court in his final judgment held that the defendant shall pay to the plaintiff the sum of N396,000.00 being storage fee paid for the storage of the defendant’s goods at the rate of N1000.00 per day from 24th June, 2003 to 23rd July, 2004. ​ Again, Counsel argued that it is the law that evaluation of evidence by a trial Court cannot be said to have been properly done by mere statements of “belief’ without the record of actual assessment and reasons supporting or which form the basis for the belief or most honest view of any of the sides in the case.

Such blank and unsupported statements do not amount to any evaluation of the evidence at all and so does not relieve a trial Court of its primary duty to evaluate evidence adduced before it before arriving at its decision one way or another for reasons that should clearly appear on its record. See the case of KWAJAFFA vs. BANK OF THE NORTH (2004) 5 SC (PT.1) 103, HASSOM NIG. LTD vs. TRADE BANK LTD (2006) ALL FWLR (PT. 310) 1730.

In addition, Counsel submitted that it is a well-established principle of law that fact not pleaded goes to no issue since it is only evidence adduced in proof of the pleadings that needs to be relied upon by Courts during trial. Counsel referred this Court to the case of AGBOOLA vs. UNITED BANK FOR AFRICA PIC. [2011] 11 NWLR (PT. 1258) 375, 397- 398.

In summary and considering the above argument canvassed, Counsel urged this Court to resolve issue one in favour of the Appellant by setting aside paragraphs 1 & 2 of the judgment order of the Court below with respect to the fact that the Defendant shall pay to the plaintiff the sum of N1,563,974.00 being the balance of debt and N396,000.00 being storage fee paid for the storage of the defendant’s goods at the rate of N1,000.00 per day from 24th June, 2003 to 23rd July, 2004.

ISSUES TWO & THREE: Whether the learned trial Court was right when he held that the Appellant is the only necessary party before him till the determination of the dispute that arose ill the transaction leading to this suit at the Court below? Whether the action instituted by the Respondent at the Court below is competent wherein the Respondent sued a non-legal person ‘Eureka Madona’ instead of Emeka Ikueze (trading under the name and style of Emeka Madona); and/or Remss Global Co.; and/or Remss Global Ltd?

It is the submission of Counsel that in a letter dated 23/05/2003 (Exhibit C), written before the institution of this suit at the Court and written by the Respondent’s solicitor, one Ifeanyi Ojibah, he addressed the Appellant as ‘Mr. Emeka Ikueze, Alias Emeka Madona’. See pages 23 and 174 (lines 27) of the Records. In a reply letter dated 30/05/2003 addressed to the Managing Director of the Respondent the Appellant’s Counsel stated the name of the Appellant as “Mr. Emeka lkueze, M/D Remss Global Ltd”. See page 24 of the Records.

Counsel argued that however, the Respondent in his Application for issuance of writ of summons in respect of Undefended List and his claim filed on 23/07/2004, sued the Appellant as “Emeka Madona” and not “Emeka Ikueze” (Trading under the name and style of Emeka Madona); and/or ‘Remss Global Co.; and/or ‘Remss Global Ltd.’ See pages 2-4 of the Records.

Counsel further submitted that the Appellant in his Affidavit in Support showing his intention to defend, particularly at paragraphs 1 to 8 protested and stated his name as “Emeka Ikueze,” and that his company name is Remss Global Ltd., that as a partner with Madona International he transacted business with the Respondent under the name and style of ‘Emeka Madona’. Meanwhile, after the breakup of the partnership, he incorporated a company called Remss Global Ltd with which he dealt with the Respondent resulting in the present dispute. And it was Emeka Ikueze that deposed to the said affidavit.

See pages 10 -14 of the Records. ​ According to Counsel, upon transferring the matter to the general cause list, the Respondent particularly at paragraphs 4 and 7 of her Statement of Claim averred that the Respondent has transacted business with the Appellant in the name of Rems Global Co., and also signed letters as ‘Rems Global (Emeka Madona)’. See pages 25 – 26 of the Records.

Counsel stated that the Respondent before the institution of this case at the Court below as highlighted above, knew that the name (‘Emeka Madona’ which is a business name) he sued is a nonlegal person and is defective and the proper party or parties he ought to sue is: ‘Emeka Ikueze (trading under the name and Style of Emeka Madona); and/or ‘Remss Global Co.; and/or ‘Remss Global Ltd.’ But, the Respondent went headlong and insisted on suing the said Emeka Madona instead of bringing an application to join the necessary party/parties or application to amend the name of the defendant to reflect the proper name of the defendant as disclosed in the pleading for a complete and final adjudication and determination of all the issues involved in this case. ​ It is the contention of Counsel that the Appellant upon receipt of the Respondent’s writ of summons and claim, statement of claim and written deposition bearing “Emeka Madona” promptly raised the issue of proper party and further challenged the Respondent’s suit.

See pages 10 and 11 of the Records. The Respondent by his own showing admitted that the real name of the Defendant is Emeka Ikueze. At paragraph 7, Line 13 of the statement on oath of Chief Edwin Nwizu (Respondent’s sole witness). See pages 50, 84, 89, 130 (paragraph 4 of amended statement of claim) and 137 of the Records.

Counsel argued that notwithstanding the obvious admission of the Respondent in his pleadings that the real name of the Appellant is Emeka Ukueze, the trial Court still went ahead to hold thus: “Again, the attempt by the defence to say that the plaintiff knew the real name of the defendant is neither here nor there. The Exhibit C which is a letter from plaintiff’s Counsel carries both names of “Emeka Ikueze” and “Emeka Madona. Furthermore, the defendant who pleaded that Emeka Madona was his business name failed to prove the fact”.

It is the further submission of Counsel that the Appellant having ab initio challenged the propriety of the Respondent’s action and in view of the Respondent’s admission that the Appellant’s real name is Emeka Ukueze, the Appellant need not prove that Emeka Madona is a business name same having been admitted by the Respondent. It is a trite law that fact admitted need no further proof. Counsel cited the case of AYOKE vs. BELLO (1992) 10 NWLR (PT. 218) P. 380, RATIO 2.

Counsel contended that the Appellant having joined issues with the Respondent with respect to the non-legal personality which the Respondent sued, it was incumbent on the Respondent to either withdraw his action or apply to amend his pleadings to reflect the proper parties; instead, he threw caution to the wind and continued to prosecute the action in the name of Emeka Madona in spite of the issues joined.

From the above, Counsel submitted that it is a trite law that a business name cannot sue or defend an action in a Court of law since in law, a business name is not recognized as a legal person. Counsel referred this Court to the Supreme Court decision in the case of NIGERIAN ARMY vs. SAMUEL [2013] 14 NWLR (PT. 1375) 466, 482, PARAS. E-F.

Furthermore, Counsel submitted that it is a trite law that it is the duty of a plaintiff (in the instant appeal, the Respondent) to bring to Court, a party whose presence is crucial to the resolution of the case and where he fails to do so as in the instant appeal, his action will be struck out because the proper defendant was not made party. Counsel referred this Court to the case of EKPERE vs. AFORIJE [1972] ALL NLR (PT. 1) 220.

In addition, Counsel stated that it is a correct principle of law that necessary party must be joined in a suit for effectual and complete adjudication of all the questions involved in the case so that parties will be bound by the outcome of the case. In the case of G. & T. INVESTMENT LTD vs. WITT & BUSH LTD. [2011] 8 NWLR (PT. 1250) 500, 538, PARAS. F-H, the proper parties were not sued even when parties have joined issued as to the proper parties before the Court. See also the case of EHIDIMHEN vs. MUSA [2000] 8 NWLR (PT. 669) 540, 569, PARAS.

C-D. ​ It is the further submission of Counsel that the trial Court misconstrued the essence of proof when he held thus: “From every indication the defendant held himself out as “Emeka Madona” and answered that name in the documents he signed as per Exhibits B, B1, B2, F and G.

The issue of a person’s name is a personal fact known to him and where he has related with people under a particular name, he cannot be heard to say that such name is not his real name because of a Court case against him … I hold from the actions of the defendant as shown from Exhibits 8-82, F and G that he called himself “Emeka Madona” and cannot be allowed in this proceeding to deny the truth of that name.

I therefore conclude that the defendant was rightly sued as the person who transacted the business that gave rise to the cause of action with the plaintiff.” Counsel argued that the Appellant has never denied the name Emeka Madona. What the Appellant said is that Emeka Madona is a business name and not his real name. The Respondent equally admitted knowing the name Emeka Madona as a business name and not the real name of the Appellant.

Despite the admission by the Respondent as per paragraph 4 of his amended statement of claim (Page 130 of Records) and paragraphs 5 and 7 of the Statement on Oath of Chief Edwin Nwizu (Director of the Respondent Company) at pages 49 and 50 of the Records. Counsel contended that in view of the admission of the Plaintiff/Respondent, the onus of proof that the Emeka Madona is a business name is completely discharged. Counsel urged this Court to hold same as the correct position of the law.

In summary, considering the issues canvassed above, Counsel urged upon this Court to resolve issues two and three in favour of the Appellant.

RESPONDENT: ISSUE ONE: Whether the learned trial Judge was right when he granted Relief 16(1) and (2) of the Amended statement of claim in favour of the Respondent? In arguing this issue, learned Respondent Counsel answered this question in the affirmative submitting that the trial Court was right in granting the Reliefs in paragraph 16(1) and (2) of the amended statement of claim in favour of the Respondent. Counsel argued that the law is that amendments date back to the date of inception or institution of the action in the Court. See the cases of AGBABIAKA vs.

SAIBU (1998)10 NWLR (PT. 571) 534 AT 548 PARAS “E – F, NWOKORO vs. ONUMA (1990) 3 NWLR (PT. 136) 22, where the Courts stated that: “Once an amendment of Court process has been ordered, the effect is that what stood before amendment is no longer material before the Court and no longer defines the issue in contention”. Counsel contended that the claim of N1,250,300.00 in the undefended list as canvassed by the Appellants’ Counsel in page 3 and 5 is of no moment since amendment of the statement of claim ordered by the trial Court on 18/11/2008 supersedes the aforesaid undefended list.

See page 172 of Records. It is the argument of Counsel that the Court should look at the plaintiff’s claim in order to determine whether it has jurisdiction to entertain a matter. See the case of EGBUONU vs. B.R.T.C. (1997) 12 NWLR (PT. 531) 29, TYONZUGHUL vs. A.G. BENUE STATE (2005) 5 NWLR (PT. 918) 226. Counsel stated that the statement of defence is not one of the relevant materials for that purpose. See the case of USMAN vs. BABA (2005) 5 NWLR (PT. 917) 113.

Counsel urged upon this Court to discountenance the argument of Appellant’s Counsel in paragraph 4.3, 4.4 and 4.5 of his brief of argument and look at the Respondent’s claim as per paragraph 16(1) of the Amended statement of claim, which the Appellant and his Counsel never opposed. Also, Counsel disclosed to this Court that no counter-affidavit was filed in opposition to the motion for the Amendment of the statement of Claim.

See page 172 of Records. ​ Counsel submitted that the trial Court was right when he granted Reliefs 16(1) and (2) of the said Amended statement of claim in favour of the Respondent. The facts relating to the claim of N1,563,974.000, stipulated in paragraph 16(1) above was pleaded by the Plaintiff and receipt No-00053 dated 15/11/2002, Exhibits B and G, was issued and signed by the defendant without complaint. See pages 70 and 100 of the Records.

By paragraph 9 of the said Amended statement of claim at page 131 of Records, the plaintiff averred the payment of N2,000,000.00, on 15/11/2002 by the defendant thereby reducing their outstanding debts to $2,273.00 and N1,250,300.00. The sum N313,674.00 (Naira equivalent of $2,273.00 at exchange rate of W138.00 per $1.00), added to (+) plus N1,250,300.00 will amount to N1,563,974.00, claimed by the plaintiff in paragraph 16(1) of the said Amended statement of claim.

According to Counsel, even paragraph 21 (page 34 of the Records of Appeal), of the statement of defence and counter-claim filed by the defendant on 9/9/2015 and statement on Oath of EMEKA MADONA filed 13/03/2003 (paragraph 15 at page 104 of the Records of Appeal), the defendant acknowledged and corroborated the indebtedness of whopping sum of N3,563,974.00 (Three million, five hundred and sixty-three thousand, nine hundred and seventy four Naira).

However, he said that by subtracting the sum of N2,000,000.00 paid by the defendant to the plaintiff on 15/11/2002, from the total debt of N3,563,974.00, agreed by both parties, the remainder sum/balance/debt/unpaid money is N1,563,974.00 claimed by the plaintiff, which is the said Amended statement of claim paragraph 16(1). Again, Counsel contended that the sum of N396,000.00 as per Judgment of the trial Court as in paragraph 16(2) was right.

The periods/time the plaintiff stored the defendant’s goods in the rented warehouse from 24th June, 2003 to the 23rd day of July, 2004 is 396days, multiplied/times(x) by N1000.00per day is N396,000.00. The said N1000.00 per day was pleaded by the plaintiff at paragraph 8 page 135 of the Records of Appeal in the Amended Reply to counter-claim and statement of defence dated 7/11/2008 and filed on 13-11-2008.

Counsel drew the attention of this Court to the fact that the evidences of payment of N1000.00 per day and N30,000.00 per month for the rented warehouse was given by Chief Edwin Nwizu in his further statement of oath filed on 13/11/2008, at paragraph 16, on page 139 and page 178 of the Records of Appeal and under cross-examination on Tuesday, 21/4/2009.

Learned Counsel urged this Court to discountenance paragraph 4.4 of the Appellant’s Counsel’s brief as same is incorrect. Counsel stated that the Appellant’s Counsel with respect should not alter or purposefully omit the content of a document, which speaks for itself. Apart from the sum of N1,250,300.00 contained in Exhibit B2 dated 15/11/2002. See page 70 of the Records. He said that a Careful perusal of the column written balance will disclose two columns of balance of $2,273, written on left hand side and another balance of N1,250,300.00, written on right hand side of Exhibit B2.

The $2,273 equivalent to Naira at the then prevailing exchange rate of N138.00 for $1.00; is N3,674.00 (Three hundred and thirteen thousand, six hundred and seventy-four Naira); By addition of N1,250,300.00 plus (+) N313,674.00 is One million, five hundred and sixty-three thousand, Nine hundred and seventy-four naira (N1,563,934) as per paragraph 16(1) of the said Amended Statement of Claim. Counsel further submitted that the Court was indeed right when judgment was given to the Respondent as per paragraph 16(1) and (2) of the Amended statement of claim.

Counsel urged upon this Court to resolve issue one in favour of the Respondent and uphold the judgment of the lower Court. Counsel contended that the case of ISHOLA vs. U.B.N LTD (2005) 6 NWLR (PT. 922) 422, 438-439, PARAGRAPH E-H cited by the Appellant’s Counsel in paragraph 4-6 of his Brief of Argument did not apply to the present Appeal.

Contrary to the argument canvassed by the Appellant’s Counsel, paragraph 16(2) of the Amended statement of claim was not just a relief, but its facts were pleaded in paragraph 12 of the said amended statement of claim (page 132 of the Records of Appeal), And also paragraph 8, page 135 of the Records in the Amended Reply to Counter-Claim and Statement of defence filed on 13/11/2008, where the Plaintiff pleaded inter alia “The plaintiff relies on the invoice of 15/11/2002, the plaintiff denied that he sold defendant’s goods.

The said goods are still in the warehouse and storage fee for their safe keeping still being paid by the Plaintiff being N1000.00 per day since 24th June, 2003. Furthermore, “The plaintiff had stored the defendant’s goods in a rented warehouse”, as pleaded by the plaintiff on paragraph 12 of Amended statement of claim. See page 132 of the Records. Counsel urged this Court to disregard the Appellant’s Counsel’s brief of argument in paragraphs 4.4; 4.5; 4.6; 4.7; 4.8; 4.9; 4.10 and 4.11, as same are frivolous, incorrect and does not apply to the present appeal.

The trial Court recorded, evaluated, examined and put into consideration, the pleadings and evidence of the plaintiff and the defendant placed before him, and thereafter arrived at an impeccable judgment in favour of the Respondent as per paragraph 16(1) and (2) of the Amended Statement of Claim.

See pages 174 to 179; 130 to 133; 134 to 135; 137 to 140; 61, 62, 63, 64, 65, 66, 67, 68, 69; 70 to 80; 95; 100 and 118 and also pages 30 to 36; 103 to 106; 183 to 188 of the Records. ​ Also, Counsel submitted that the trial Judge put into consideration the balance of $2,273.00, which is unpaid balance/debts, in Exhibit B2 dated 15-11-2002.

The sum of N313, 674.00, (which is Naira equivalent of $2,273.00) plus another balance/debt of N1,250,300.00, their total sum is N1,563,974.00 as claimed by the Respondent in paragraph 16(1) of the Amended statement of claim. (See pages 70, 63 and 95 of Records of Appeal, dated 18/7/2002, for conversion of $2,273X 138 = N313, 674.00). In specific reaction to paragraph 4.7 of the Appellant’s Brief of Argument, Counsel further submitted that the Respondent lead evidence to show how she arrived at the sum of N396,000.00, when the Respondent’s witness, Mr.

Edwin Nwizu, stated that the cost of the rented warehouse is N30,000.00 per month (page 178 of the Records of Appeal). And also N1000.00 per day; at paragraph 16 (page 139 of the Records of Appeal. The PERIODS/NUMBER OF DAYS involved from the 24th day of June, 2003 to 23rd day of July, 2004, is Three Hundred and Ninety six days (396 days). The 396 days multiplied (X) N1000.00 is Three hundred and Ninety-six thousand Naira (N396,000.00).

Therefore, the Respondent having stated the number of periods/days involved (396 days) from 24th June, 2003 to 23rd July, 2004 in the rented warehouse at the rate of N1000.00 per day. Again, Counsel submitted that the trial Court was right, when he awarded the sum of N396,000.00 in favour of the Plaintiff as per paragraph 16(2) of the Amended statement of claim. Counsel argued that the Respondent does not require further evidence to prove scientific computation/calculation of 396 days at the rate of N1000.00 per day from 24th day of June, 2003 to 23rd day of July, 2004.

Counsel contended that contrary to the Appellant’s brief of argument in paragraph 4.7, the trial Court recorded and evaluated the evidence of Respondent’s witness on page 178 of the Records where the sum of N30, 000.00 per month was stated by the said witness as the cost of the rented warehouse and also in paragraph 16 at page 139 of the Records where the Plaintiff’s witness Chief Edwin Nwizu in his additional statement on Oath filed on 13/11/2008 said that the defendant’s goods are packed at rented warehouse at the cost of N1000.00 everyday from 24th June, 2003 till date.

In summary, Counsel urged this Court to resolve issue number one in favour of the Respondent who have proved its claim in paragraph 16(1) and (2) of the Amended statement of claim, on balance of probability. Furthermore, Counsel urged upon this Court to uphold the judgment of the trial Court and order the Appellant to pay the sum of N1,563,974.00 to the Respondent as balance/debt unpaid and N396,000.00 for the storage of the Appellant’s remaining goods at the rate of N1,000.00 per day from 24th June, 2003 to 23rd July, 2004.

ISSUE TWO: Whether “EMEKA MADONA” is a business name or Natural person, who has capacity to sue and be sued in that name? Learned Counsel in arguing this issue, submitted that in the ordinary course of business between the parties the Respondent (as the plaintiff) knew the Appellant (the then defendant) as “EMEKA MADONA”.

On June 23rd, 2001 EMEKA MADONA with a PACKING LIST containing more than (14) items in a container No: SCMU 2052386, handed over the said PACKING LIST to the plaintiff, captioned EDDYCLEMS by EMEKA MADONA, to forward and clear the goods thereto after shipping same into Nigeria through PT. FRIEND SHIPPRIMA ABADI. See pages 64 and 130 of Records. According to Counsel, after clearing the said goods, in container No: SCMU 2052386, on the 13th day August, 2001 the Respondent issued EMEKA MADONA with receipt invoice Number 000409 (Exhibit B) which he signed without compliant.

Furthermore the Appellant, brought another PACKING LIST with Container No: BENU 2317486, with EMEKA MADONA as item 8 in the group pairing of goods transported by a shipping company known as PT. BINTANG PRIBUMI KARSAUDARA and also another PACKING LIST with more than 8 items belonging to EMEKA MADONA and handed over same to the plaintiff, the aforesaid goods was shipped by PT. FRIEND SHIPPRIMA ABADI and thereafter receipts No: 000972 dated 14/12/2001 (Exhibit B1) was issued to EMEKA MADONA, which he signed without complaint, leaving a balance of N1,13,900.00, as unpaid debt.

See pages 65, 66, and 72 of the Records. ​ Also, Counsel stated that the Defendant in the course of his business with the plaintiff handed over another PACKING LIST of Phinisi cargo, dated 14-05-02 with more than 10 items, in container No: TTNU 4968312, to the plaintiff, captioned: “To EDDY CLEMS BY REMS GLOBAL CO”.

On the basis of the said Phinisi Cargo’s PACKING LIST, the plaintiff cleared the said goods thereto and paid for the cost of freight, loading and security of the said goods with total cost of N3,563,974.00 (for old debts of N1,139,000.0 as in Exhibits B1 and new debt of N2,136,400.00 (cost of clearing the disputed goods in container No TTNU: 4968312) and later issued receipts No: 00053 dated 15/11/2002 to the defendant who signed same as EMEKA MADONA (Exhibits 132 and G).

Counsel further submitted that, prior to the issuance of the said receipts No: 00053, the defendant wrote and signed a letter dated 31-07-2002, (Exhibit F) which he signed as EMEKA MODONA in connection with the dispute business transaction which led to suit no: O/390/2004. The Appellant also signed documents in pages 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80 and 100, of the Records. EMEKA MADONA, in all these documents/receipt evidencing transaction between him and the Respondent (EDDY-CLEMS (WA) LTD), yet the Appellant denies EMEKA MADONA as his Name.

See pages 70, 71, 95 and 100 of the Records. Counsel drew attention of this Court to Order 13 Rule 28 of the Anambra State High Court (civil procedure) Rules 2006, which has come into effect as at 18/11/2008, when the Amended Statement of Claim filed by the Plaintiff on 13/11/2008 was ordered by the presiding Judge, Hon. Justice P. C. Obiorah, states that: “Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in such name or style.” See also the case of IYKE MED MERCHANDISE vs.

PFIZER INC. (2001) 10 NWLR (PT. 722) 540, where the Court said that partners may sue or be sued in the name of the partnership or in their individual names. Assuming without conceding that if EMEKA MADONA is a business name in partnership with MADONA INTERNATIONAL as averred by the defendant in paragraph 2 page 30 of the records is correct, then the suit No: O/390/2004, is instituted against the right person EMEKA MADONA in view of Iyke Med Merchandise case (supra).

It is the contention of Counsel that the Appellant who held himself out and represented himself as EMEKA MADONA in writing and by conduct through signing of Exhibits B, B1, B2 and G which misrepresentation, misled the Respondent in carrying out business with him in that name (EMEKA MADONA) since the year 2000, could not turn around to deny that name. Counsel cited the cases of ROURAFRIC & FAR EASTERN LTD vs. CHIEF JOHN AVBENAKE (1958) WRNLR 92, IGA vs. AMAKIRI (1976) 11 SCI, pages 304-305. See SECTION 169 OF EVIDENCE ACT, 2011.

Counsel disclosed that throughout business transaction with the Appellant since the year 2000, the Respondent knew him as EMEKA MADONA and he has executed and signed all the receipts aforesaid in that name or capacity; and as such, the Appellant is estopped from asserting the contrary, he cannot renege. Counsel urged this Court to resolve the Appellant’s issue two in favour of the Respondent. The Appellant EMEKA MADONA is the only necessary person and material witness in the disputed transaction at the trial Court.

In reaction to paragraph 5.1, 5.2, 5.3, 5.4, in the Appellant’s Brief of Argument Counsel submitted that the letter dated 23/05/2003, (Exhibit C) addressed to the Appellant as: “Mr. EMAKA IKUEZE, Alias EMEKA MADONA”, does not portray EMEKA MADONA as a business name. “Alias EMEKA MADONA” does not in any way suggest that it is a business name rather it shows him as a Natural person with multiple names vis-a-vis EMEKA IKUEZE OR EMEKA MADONA, same is one and refers to one person in multi-dimension.

He further argued that the word: “Alias EMEKA MADONA” shows that the Appellant is a Natural person with flesh and blood; who can sue and be sued in that name. ​ Counsel argued that the Appellant by paragraph 2 of the statement of defence filed on 9/9/2005 stated that EMEKA MADONA was a business name but throughout the proceedings in the lower Court, no certificate of registration of a business name: “EMEKA MADONA” was either pleaded exhibited, tendered or presented to the trial Court. No evidence of such name “EMEKA MADONA” with Corporate Affairs Commission was given.

Counsel further argued that the burden of proof that EMEKA MADONA is a business name lies with the Appellant who has not discharged same. By the provision of SECTION 132 OF EVIDENCE ACT, 2011; “the burden of proof in a suit or proceeding lies on that person who will fail if no evidence at all were given on either side. Counsel submitted that the Appellant has failed to prove that EMEKA MADONA is a business name.

Counsel submitted that it is pertinent to point out that SECTION 656(1) OF COMPANIES AND ALLIED MATTERS ACT (CAMA) 2004, made it mandatory that: “Every individual firm or corporation having a place of business in Nigeria and carrying on business under business name shall be registered. Yet the Appellant has not exhibited the certificate of registration of business name with “EMEKA MADONA”. Furthermore, Counsel picked holes in the submissions of the Appellant Counsel in paragraph 5-9 of the Brief of Argument and the cases thereto cited. AYOKE vs.

BELLO (1992) 10 NWLR (PT. 218) 380 ratio 2, does not apply, there are exceptions to the rule in the aforesaid case, especially where the party is bound to prove his Claim (as in the instant case) even if the facts alleged are admitted by the opponent party. See VINCENT BELLO vs. MAGNUM EWEKA (1981) 1 S.C 101. Counsel contended that “HE WHO ASSERTS MUST PROVE”.

If EMEKA MADONA is a business name, the Appellant ought to tender certificate of registration of that business name, which he has failed to do: “Alias EMEKA MADONA” suggests more of a Natural person with multiple names, such as EMEKA IKUEZE, it is not artificial name or business name.

Finally on this issue, Counsel argued that if EMEKA IKUEZE or Rems Global CO or Remess Global Ltd, transacted the disputed business now on Appeal, receipts, letters, and necessary documents would have been issued to the Appellant in that name or capacity but no receipts was tendered to show that the Respondent transacts business with defendant in the name of EMEKA IKUEZE or Remss Global Co, unlike the receipt/Exhibits in B, B1, B2; F and G, in the Court’s record.

Counsel urged this Court to resolve Appellant’s issue two against the Appellant and affirm the judgment of the trial Court that EMEKA MADONA is the only necessary party before the trial Court. ISSUE THREE: Whether REMS GLOBAL CO. a non-juristic person has legal capacity to transact business in Nigeria? In arguing this issue, Counsel answered this issue number three, in the Negative (NO).

The Appellant in paragraph 2 of the statement of defence and counterclaim stated that the name with which he transacted business with the plaintiff is REMESS Global Ltd, which is contrary to the contents of the Phinisi Cargo’s PACKING LIST Exhibit D. In container No: TTNU 4968312 where the defendant handed over the PACKING LIST to the plaintiff captioned “TO EDDY CLEMS BY REMS GLOBAL CO. See 67 of the Records. Counsel submitted that REMS GLOBAL CO. is not a juristic person and as such cannot legally transact business in Nigeria. It lacks the requisite legal capacity or status to do so.

See the case of NKPORNWI vs. EJIRE (2009) 9 NWLR (PT. 1145)131. Furthermore, REMESS Global Ltd is not the same thing as REMS GLOBAL CO in the PACKING LIST. See page 67 of the Record. By SECTION 133(1) OF EVIDENCE ACT 2011 (AS AMENDED), He who asserts has the burden to prove his assertion.

Now that issue of who carries out the present business in dispute arose between the parties right from the trial Court; common sense, should make the Appellant to show that REMESS GLOBAL LTD (In whose name he claimed that packing list Exhibit D was made as averred in paragraph 2 of the aforesaid page 30 is a body corporate and has the capacity to transact business in Nigeria by his pleadings or tendering or presenting the certificate of incorporation as EXHIBIT before the trial Court to show that REMESS GLOBAL LTD is an existing company and is a juristic person clothed with ability to do transactions in Nigeria.

Counsel argued that the Appellant did not take step to show or establish that REMESSO GLOBAL LTD is a juristic person with capacity to sue or be sued in its registered/incorporated name. Counsel stated that the burden of proof placed on the Appellant to show that REMESS GLOBAL LTD is a corporate soul or juristic person; who has legal capacity to transact business in Nigeria has not been discharged.

By Section 133(1) E.A. 2011(as amended) the burden of first proving existence or non-existence of a fact lies on the party against whom judgment of the Court would be given if no evidence were produced on either side. It is submission of Counsel that REMESS GLOBAL LTD did not transact any business with the Plaintiff. Counsel further contended that REMS GLOBAL CO; in the said PACKING LIST is not a juristic person in the eyes of the law; No certificate of incorporation was pleaded or tendered in the trial Court.

The assertion by the Appellant that he transacts business with the Respondent in the name of REMESS GLOBAL LTD is of no moment. The failure of the Appellant to produce the company’s certificate of incorporation of REMESS GLOBAL LTD, or REMS GLOBAL CO, is fatal to his case. Counsel cited the cases of SPASCO VEHICLE AND PLANT HIRE CO. LTD vs. ALRAINE (NIGERIA) LTD (1995) 8 NWLR (PT. 416) 655, ISHOLA vs.

SOCIETE GENERALE (NIGERIA) LTD (1997) 2 NWLR (PT. 488) 405. ​ Again, Counsel submitted that the issue of who transacted the business now in dispute, clearly indicated that EMEKA MADONA who signed Exhibits B, B1, B2, F and G for himself without denying his signature’s and writing’s as it appeared on page 184 of the Records where the Appellant signed it as EMEKA MADONA. Counsel urged this Court to so hold that REMESS GLOBAL LTD is not the same person as REMS GLOBAL CO., A non- juristic person and it lacks the legal capacity to transact business in Nigeria.

Counsel urged upon this Court to resolve this issue three in favour of the Respondent.

ISSUE FOUR: Whether the action instituted by the Respondent at the Court below is competent wherein the Respondent sued a non-legal person “Emeka Madona”, instead of Emeka ikueze (trading under the name and style of Emeka Madona); and/or Remss global co; and/or Remss global ltd? ​ In arguing this issue, Counsel affirmatively submitted that the Respondent herein stated that the action instituted by the Respondent against EMEKA MADONA in the Court below is competent; EMEKA MADONA is a Natural person with flesh and blood, who can sue and be sued in that name.

It is the argument of Counsel that the letter of 23/05/2003 (Exhibit C) written by Respondent’s Solicitor, IFEANYI OJIBAH, Esq., addressing the Appellant as Mr. EMEKA KUEZE, Alias EMEKA MADONA solely relied upon by the Appellant’s Counsel in paragraph 5.2 of the Appellant Brief of Argument, is of no moment. Counsel argued that the word: “Alias” EMEKA MADONA did not in any connote that EMEKA MADONA is a non-juristic person; rather it showed that EMEKA KUEZE and EMEKA MADONA is one and the same person, answering multiple names.

Counsel contended that the Appellant’s argument in paragraph 5.3 of his brief is wrong as the Respondent has repeatedly stated that as far as the business of freighting and clearing of goods for the Appellant is concerned, it has been dealing with EMEKA MADONA and issued documents and receipts to him as EMEKA MADONA, and has been transacting business with the Appellant since year 2000 without protest or complaint from the Appellant. See paragraph 4 of Amended statement of claim at page 130 of the Records, Exhibit B, B1, B2 F and G in pages 70, 71, 72, 61, 62, 96, 97 and 100 of the Records.

According to Counsel, this protest over EMEKA MADONA only came up because of Court case, but in the course of ordinary business at pages 70-8, 61, 62, 64, 65, 66, 96, 97 and 100, he never protested.

However, it will look absurd on part of the Respondent whom EMEKA MADONA loaded goods in container Number: SCMU 2052386 on the 23rd day of June, 2001 and container No: BENU 2317486, dated 05/05/01 item 8 of page 64 and 66 of Records of Appeal and invoice receipts Exhibits B1 and B and a debt of N1,113,900.00 on the said Exhibit B 1, to leave such huge sum of money (N1,113,900.00) and institute undefended list action against EMEKA IKUEZE or REMS GLOBAL CO. (non-juristic person) or Remess Global Ltd who are not parties/owners of goods contained in the aforesaid containers.

See pages 64, 65, 66, 71 and 72 of Records. To Counsel, the law is that it is only the parties to a transaction that can sue and be sued in matters/actions related thereto. Counsel cited the case of AKINSULE vs. OGUNYANJU (2011) 12 NWLR (PT. 126) 264. Counsel further argued that the Appellant’s argument in paragraph 5.4, 5.5, 5.6 and 5.7 of his brief respectfully is deceptive.

The same defendant who knew that his name is EMEKA IKUEZE and has a company with the name REMESS GLOBAL LTD on June 23rd, 2001, brought a PACKING LIST with the name EMEKA MADONA, boldly written and handed over to the Plaintiff (EDDYCLEMS); and on 5/5/2001 brought another PACKING LIST as contained in CONTAINER NO: BEND 2317486, with item No: 8 and also another PACKING LIST dated 14-05-02, at page 66 of the Records of Appeal BOLDLY WRITTEN EMAKA MADONA. See pages 64, 65 and 66 of the Records of Appeal.

Counsel drew attention to the fact that receipts viz Exhibit B (page 72) and Exhibit B1 (page 71) of the Records, with CONTAINER NO:2052386, boldly written on top these receipts and same were issued to EMEKA MADONA and he signed same evidencing the transaction in the aforesaid PACKING LIST (supra), WITHOUT PROTEST. In addition Exhibit B1 (page 71 of the Records of Appeal). Clearly shows that the Appellant is indebted to the Respondent to the tune of N1,113,900.00 before importing the goods now in dispute.

Counsel contended that in view of the aforesaid PACKING LIST and the receipts issued thereto in the said transaction, the Appellant in equity is estopped from asserting that he is not EMEKA MADONA. Again, Counsel submitted that the Appellant’s Argument in paragraphs 5.8; 5.9, 5.10 and 5.11 of his Brief is a misconception.

The quotation in paragraph 5.8 is quoted out of context as these cheques were written in his real name EMEKA UKUEZE because according to him, EMAKA MADONA is a business name; without conceding CHIEF EDWIN NWIZU was only stating or quoting what the Appellant told him on 12-1-2001 and 13-2-2001 before the aforesaid First Bank Cheques were issued to him. See pages 81 and 82 of the Records. These cheques respectively were not part of the transactions in dispute. This phrase, EMEKA UKUEZE and EMEKA MADONA is a business name was never pleaded by the Respondent. See page 130 of the Records.

It is the contention of Counsel that the law is that “WHERE evidence is adduced or attempted to be adduced on facts not pleaded such evidence should not be allowed to be given and where it had been given, it should be discountenanced or expunged. Counsel cited the cases of OTARU SONS LTD vs. IDRIS (1999) 6 NWLR (PT. 606) 330, ONAMADE vs. A.C.B. LTD (1997) 1 NWLR (PT. 480) 123 at 145 paragraph C-D. Counsel urged this Court to expunge the aforesaid evidence of Chief EDWIN NWIZU.

Also, Counsel submitted that the disputed transaction was not carried out by EMEKA IKUEZE nor REMESS GLOBAL LTD, rather EMEKA MADONA a known person and customer to the Respondent was the person who handed over packing list, dated 14-05-2002, to the Respondent and not EMEKA IKUEZE. See page 67 of the Records. The said PACKING LIST with REMS GLOBAL Co, is a ploy by the defendant to evade the service of Eddyclems company and dodge the payment of N1,113,900.00 being debt he owed the plaintiff before importation of the goods in July 2002, the subject matter of this litigation.

See page 138 of the Records. Counsel submitted that packing list Exhibit D and other previous packing lists are documents forming part of the same transaction between the parties. The change in name to REMS Global CO. is to evade the payment of old debts of N1,133,900.00. See pages 64-67 and 138 of the Records. Counsel further contended that the Appellant’s Argument in paragraph 5.14 of his brief is bereft of the law.

EMEKA MADONA has been transacting business with the Plaintiff by first submitting packing list as appeared in pages 64, 65, 66 and 67 of the records and invoice receipts were issued to him with regard to the packing lists submitted to the Plaintiff. See pages 70 to 80 and 100 of the Records. See also Exhibit F. It is the further submission of Counsel that the Appellant never submitted packing list bearing the name EMEKA IKUEZE; or REMESS GLOBAL LTD. How can the Plaintiff sue a person who is not a party or owner of these packing lists in (pages 64, 65, 66 and 67 of the Records)?

The Respondent earlier in paragraph 3 of the Amended statement of claim page 130 of the Records, stated that, the Plaintiff will clear goods for a principal in any name appearing on the documents presented to it or in any name given to it by its customer: Perusal of the packing lists shows that the name EMEKA IKUEZE and REMESS GLOBAL LTD, are strangers as far as ownership of these goods in the aforesaid pages are concerned. According to Counsel, the argument of REMS GLOBAL CO (a non-juristic person) as it so appeared on the packing list at page 67 is not feasible.

The law is that both the Plaintiff and the Defendant as at the time of transacting the business or institution of the action before Court must be persons with legal capacity to sue and be sued. See the case of ADMINISTRATORS/EXECUTORS OF ESTATE OF SANI ABACHA vs. EKE SPIFF (2009) 7 NWLR (PT. 1139) 97. Again, Counsel disclosed that throughout the proceedings the Appellant never pleaded, that the REMSS GLOBAL CO., has metamorphosed to REMESS GLOBAL LTD, neither did he present or tender the certificate of incorporation or Registration bearing REMESS GLOBAL LTD in the trial Court.

Learned Counsel argued that EMEKA MADONA who held himself out, answered and signed documents in their capacity/name EMEKA MADONA as per Exhibit B, B1, B2, F and G renege that EMEKA MADONA is not his name even the Phinisi cargo Packing lists dated 14-05-02 has a container Number TTNU 4968312; the same container Number TTNU 4968312 was boldly written on Invoice No: 00053 dated 15/11/2002, Exhibit B2, G denies that he is not EMEKA MADONA. The Appellant is estopped from asserting the contrary see Section 169 of Evidence Act, 2011 (as Amended).

In summary, Counsel urged this Court to resolve issue four (4) (which is issue No 3 of the Appellant) in favour of the Respondent and uphold the judgment of the trial Court in that regard. EMEKA MADONA is a natural person with flesh and blood and can sue and be sued in that name. On the whole, Counsel contended that EMEKA MADONA is not a Business name, no certificate of Registration as a business was tendered before the trial Court. Also REMS GLOBAL CO is a non-juristic person and it lack capacity to sue or be sued in that name.

EMEKA IKUEZE as a name as far as packing list and invoice receipts issued to the Defendant is concerned; he never protested the aforementioned documents, except in the Court’s case. Counsel urged this Court to disregard the argument that EMEKA IKUEZE is the proper party; he is not privy to any of the above transactions.

RESOLUTION OF APPEAL The clear facts of this case are that the Plaintiff, who is the Respondent herein, as a freight forwarding and clearing agent has been transacting business with the Defendant/Appellant since the year 2000 by the name of “EMEKA MADONA” and the defendant never complained to the Plaintiff that the name is not his name and has been signing documents and Invoice receipts evidencing transactions between the parties in the name of “EMEKA MADONA”. While the Appellant all the time was partnering with his master, the said Mr. Madonna, he was commonly called: “Emeka Madonna” by all.

However, after the breakup of the partnership business, the Appellant whose natural name is ‘Emeka Ikueze’, and his company’s name, “Remss Global Ltd” commenced business with the Respondent in the name of his company called Remss Global Ltd. The Respondent knew and dealt with the Appellant as Emeka Ikueze and his company as “Remss Global Ltd” even before the commencement of this action. See pages 15 – 17 of the Records.

However, when dispute arose between the parties over incurred clearing charges and sundry transaction expenses, the Respondent sued ‘Emeka Madona’ who is not a natural person at the Court below instead of suing Emeka Ikueze or Remss Global Ltd. The action was initially commenced under the Undefended List Procedure. See pages 1 – 4 of the Records. The Appellant timeously raised the issue of proper parties but the Respondent ignored it. The Respondent failed to amend his processes to reflect the proper parties and the matter proceeded into trial and subsequently, judgment delivered.

See pages 10, 11 (paragraphs 1 to 11), 30 and 31 of the records. The Respondent’s initial claim as per paragraph 8(i) was for the sum of N1,250,300.00 being the outstanding balance. However, when the Court transferred the case to the general cause list, the Appellant claimed that the Respondent suo motu changed his claim to the sum of N1,563,974.00 as the balance debt and N390,000:00 as storage fee paid. See page 27 of the Records. But the Respondent opined that the Amendments was done by an order of the Court and referred Court to appropriate records to that effect.

However, the matter proceeded to hearing and eventually judgment was entered in favour of the Respondent as Plaintiff. See page 3 of the Records. The first issue nominated for the determination of this appeal deals with the question of whether the learned trial Court was right when he granted Reliefs 16(1) & (2) of the statement of claim of the Respondent where there is no fact in the Respondent’s pleadings nor was there any evidence adduced in support or proof of these reliefs?

The contention of learned Appellant’s Counsel under this issue is that the Respondent’s claim against the Appellant under the undefended list at all material time in this suit was for the payment of the sum of N1,250,300.00 being the outstanding balance owed to him, that the Respondent had all along asserted that the basis for the claim was for the services rendered by the Respondent to the Appellant as per Invoice No. 0053 of 15/11/2002 (Exhibit B2). See Pages 3 and 5 of the Records.

Counsel therefore contended that Exhibit B2, which is the basis under which the trial Court awarded payment of the sum of N1,563,974.00 to the Respondent clearly stated the balance to be N1,250,300.00 and that the documentary evidence corroborated the initial affidavit evidence of one Ben Okafor (Administrative Officer in the Plaintiff’s company) and no other evidence was adduced to show that what the Appellant owed the Respondent is N1,563,974.00 as founded upon by the trial Court. ​ However, at page 119 – 122 of the printed records can be found a motion on notice to have the Appellant’s Statement of Claim amended.

It is equally on record that this motion was heard and granted by the Court below more so when there was no opposition to the grant of that motion. It will be recalled that it was in the process of these amendments that the said Reliefs 16 (1) and (2) were amended on the orders of the Court below. The settled position of the law is that amendments date back to the date of inception or institution of the action in the Court. See the cases of AGBABIAKA vs. SAIBU (Supra); NWOKORO vs. ONUMA (Supra) cited by learned Counsel for the Respondent.

See the case of REGISTERED TRUSTEES OF THE AIRLINES OPERATORS OF NIGERIA vs. NANA (2014) LPELR- 22372 SC, where the apex Court per OKORO, JSC had this to say on the subject; “The law is settled that once an amendment is granted, what stood before the amendment is no longer material before the Court. See Katto Vs CBN (1999) 6 NWLR (Pt.607) 390 AT 412 D – E, Rotimi Vs. MacGregor (1974) 11 SC 133 AT 152. It is also settled law that an amendment takes effect from the date of the original document sought to be amended.

Once the amendment is made, the action will continue as if the amendment had been inserted from the beginning. See A.G. Ekiti State Vs Adewumi & Anor (2002) 1 SC 47 AT 63 lines 31 – 41, Sneade vs. Watherton (1904) 1 K.B. 295 AT 297, Oguma Associated Companies (Nig.) Ltd. vs.

I.B.W.A. (1988) 1 NWLR (Pt. 73) 658 AT 673 C – D.” ​ Based on the foregoing, all the hullaballoo made by learned Counsel to the Appellant about the claim for the sum of N1,250,300.00 in the undefended list later amended by the Respondent is therefore clearly of no moment after all since amendment of the statement of claim ordered by the trial Court on 18/11/2008 supersedes the aforesaid Undefended list. See page 172 of Records.

This Court therefore finds and holds that the Court below was right when the Court granted Reliefs 16(1) and (2) of the said amended statement of claim in favour of the Respondent. The facts relating to the claim of N1,563,974.000, stipulated in paragraph 16(1) above was pleaded by the Plaintiff and receipt No-00053 dated 15/11/2002, Exhibits B and G, was issued and signed by the defendant without complaint. See pages 70 and 100 of the Records.

By paragraph 9 of the said Amended statement of claim at page 131 of Records, the plaintiff averred the payment of N2,000,000.00, on 15/11/2002 by the defendant thereby reducing their outstanding debts to $2,273.00 and N1,250,300.00.

The sum N313,674.00 (Naira equivalent of $2,273.00 at exchange rate of N138.00 per $1.00), added to (+) plus N1,250,300.00 will amount to N1,563,974.00, claimed by the Plaintiff in paragraph 16(1) of the said amended statement of claim. ​ In arguing the issues 2 and 3 of the issues nominated by the Appellant, learned Appellant’s Counsel made a heavy weather of the fact that the Respondent in his Application for issuance of writ of summons in respect of Undefended List and his claim filed on 23/07/2004, sued the Appellant as “Emeka Madona” and not “Emeka Ikueze” (Trading under the name and style of Emeka Madona); and/or ‘Remss Global Co.; and/or ‘Remss Global Ltd.’ See pages 2 – 4 of the Records.

Without having to pore over dusty volumes on this issue, Order 13 Rule 28 of the Anambra State High Court (Civil Procedure) Rules 2006, tends to hold the key to the puzzle under consideration. It would be recalled that when the Amended Statement of Claim filed by the Plaintiff on 13/11/2008 was ordered by the presiding Judge, P. C. OBIORAH, J was of the clear view that: “Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in such name or style.” See also the case of IYKE MED MERCHANDISE vs.

PFIZER INC. (2001) 10 NWLR (PT. 722) 540, where the Apex Court PER UWAIFO, JSC had this to say on the subject: “In the present case, there is some assumption, I suppose, that the appellant is a mere business name or at any rate, the case has not proceeded on the basis that a partnership is involved. In that circumstance, the Federal High Court (Civil Procedure) Rules have not directly provided whether such a business name can be sued eo nomine. But Section 9 of the Federal High Court Act creates a window for looking to other sources by providing that: “9.

The jurisdiction vested in the Court shall, so far as practice and procedure are concerned, be exercised in the manner provided by this Act or any other enactment or by such rules and orders of Court as may be made pursuant to this Act or, in the absence of any such provisions, in substantial conformity with the practice and procedure for the time being in force in the High Court of Lagos State.” See Laibru Ltd. v. Building and Civil Engineering Contractors (1962) 2 SCNLR 118 in which a similar provision made it possible to resort to the English Rules of Court.

There is the provision in Order 13, Rule 42 of the High Court of Lagos (Civil Procedure) Rules, 1972, then applicable when this suit was filed and the trial Court gave its ruling (but now Order 14, Rule 42 of the High Court of Lagos (Civil Procedure) Rules, 1994 and in pari materia) which states: “Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in such name or style as if it were a firm’s name and so far as the nature of the case will permit, all rules relating to proceedings against firms shall apply.” The first point to note is that such a person coming within the said Rule 42 may be sued, but cannot sue in his trade name.

See Mason v. Mogridge (1892) 8 TLR 805. The rule is similar to the Rules of the Supreme Court, 1965 of England (as amended), Order 81 Rule 9. That rule was taken from RSC (Rev.) 1962, Ord. 81 R. 9, formerly Ord. 48A R. 11 which itself is in fact in pari materia with our Rule 42, Order 14. As far as applicable, says Ord. 81 R.9, the rules relating to partnership shall apply to business name as if it were a firm.

That is why I said it was important to note, in the case of partnership, that there is no necessity of ascertaining the names of the individual partners for the purpose of suing the firm. The same applies to business name. I therefore agree with Mr.

Ogunkeye, learned Counsel for the respondents, when in the respondents’ brief of argument, he submits: “If Order 4 Rule 6 (FHC) enables a firm which is a partnership to be sued eo nomine and Order 13 Rule 42 (LHC) enables an individual doing business in a name other than his own to be sued in that name, then the general proposition can be asserted that an unincorporated business enterprise, regardless of the nature of its ownership can be sued eo nomine, because the ownership can only be either sole or plural, which is covered by both rules.

If that proposition is valid, then it means that there is no need to first ascertain the nature of ownership of an unincorporated business enterprise before determining whether it can be sued eo nomine.

The reality is that whether it is a partnership or solely owned it can be so sued.” Apart from the foregoing, it will be recalled that in every turn of events the Appellant as Defendant held himself out and represented himself as EMEKA MADONA in writing and by conduct through signing of Exhibits B; B1; B2 and G which misrepresentation, misled the Respondent in carrying out business with him in that name (EMEKA MADONA) since the year 2000. He cannot at this stage be allowed to turn around to deny that name. See SECTION 169 OF EVIDENCE ACT, 2011.

Throughout a history of business transaction with the Appellant since the year 2000, the Respondent knew the Appellant as EMEKA MADONA and he has executed and signed all the receipts aforesaid in that name or capacity; and as such, the Appellant is estopped from asserting the contrary, as he cannot renege. Based on the foregoing, this Appeal fails and it is accordingly dismissed. Consequently, the judgment of the Court below delivered on the 26th day of February, 2014 is hereby affirmed. There shall be cost of N200,000.00 in favour of the Respondent against the Appellant.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the advantage of reading in draft a copy of the leading judgment prepared by my learned brother, F. O. OHO, JCA. I agree that the appeal should be dismissed and I endorse the order as to costs made by Oho, JCA, in the leading judgment.

PATRICIA AJUMA MAHMOUD, J.C.A.: I have read the judgment of my learned brother, FREDERICK OHO, JCA in this appeal. I am in complete agreement with the reasoning and conclusion that this appeal lacks merit and should be dismissed. I also will and hereby dismiss the appeal. The judgment of the lower Court is hereby affirmed. The Appellant should pay N200,000 as costs to the Respondent.