IN THE HIGH COURT OF IMO STATE
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT HIGH COURT OF JUSTICE, OWERRI
ON THE 19TH DAY OF JULY, 2019
BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA
SUIT NO.:- HOW/568/2017
BETWEEN
SIR SHEDRACK ONYEMENANJO AMADI = =PLAINTIFF/APPLICANT
(EZE-ELECT OF OBIBIEZENA AUTONOMOUS COMMUNITY)
AND
- SIR PETER ONYEWUENYI
- THE GOVERNOR OF IMO STATE
- THE MINISTRY OF CHIEFTANCY & COMMUNITY GOVERNMENT COUNCIL, IMO STATE
- THE ATTORNEY GENERAL OF IMO STATE
- TOCHUKWU NNEKE
(CHAIRMAN, AMAORIE GENERAL ASSEMBLY)
- UZOMA EKWUGHA (SECRETARY, AMAORIE GENERAL ASSEMBLY)
- ENGR. UCHE BANNA(PRESIDENT GENERAL, OBIBIEZENA DEVELOPMENT
UNION AND CHAIRMAN STANDING COUNCIL ON EZESHIP IN OBIBIEZENA)
- MR. ADIBE EMENYONU (SECRETARY GENERAL, OBIBIEZENA DEVELOPMENT UNION
AND SECRETARY STANDING COUNCIL ON EZESHIP IN
OBIBIEZENA)
RULING
This MOTION ON NOTICE is said to be BROUGHT PURSUANT TO ORDER 24 RULE 1, 2 AND 3 OF THE HIGH COURT (CIVIL PROCEDURE) RULES 2017 AND THE INHERENT JURISDICTION OF THE HONOURABLE COURT. It prays the court for:
- Leave to further amend the Plaintiff/Applicant’s Statement of Claim in the terms set out and underlined in paragraphs 18, 95 and 97 of the proposed amended statement of claim exhibited to this motion.
- Leave to file further, further witness deposition for Eze-Elect Shedrack Amadi.
- An order deeming the Further Amended Statement of Claim, Further Further witness Deposition of Eze-Elect Shedrack Amadi, filed alongside this motion as properly filed and served the appropriate fees having been paid.
- AND for such further order (s) as the honourable court may deem fit to make in the circumstance.
The application is supported by affidavit deposed to by Agba Victoria, Litigation Secretary of Equity Chambers. She deposed that by virtue of her position she is conversant with the facts of this case and has the consent of their principal in chambers and the Plaintiff/Applicant to depose to this affidavit on his behalf.
The Plaintiff filed this suit against the Defendants on 20/7/17 but while preparing the Plaintiff/Applicant for hearing the Plaintiff pointed out to A.C.Onyeukwu Mrs. of counsel who was preparing him, that there are some facts he had given for the preparation of his statement of claim which are misrepresented and some omitted.
There is need therefore to amend the statement of claim of the Plaintiff to reflect these facts in order to bring out the real issues in controversy. The Proposed Further Amended Statement of Claim is ready and hereto exhibited and marked Exhibits A. The clean copy thereof and the Further, Further witness deposition of Eze-Elect Shedrack Amadi are also filed alongside this motion. The Defendants/Respondents shall not be prejudiced by this application.
The counsel filed a written address and formulated issue for determination as:
Whether the Plaintiff/Applicant made out a case for grant of this application.
It is submitted that it is trite law that the essence of an amendment is to bring before the court the real issues between the parties and for determining the real questions in controversy see Adekeye v. Akin – Olubade (1987) 3 NWLR (Pt. 60) 214, Ratio 1
It is submitted that the rational behind amendment of pleadings, is the recognition of the fallible nature of man who by ‘nature is prone to mistakes, errors, slips or omissions, hence the Supreme Court in the case of Akaninwo v Nsirim (2008) 9 NWLR (Pt. 1093) 439 @ 444 Ratio 4 held thus: “In law, parties to a case in the Superior Courts of record are bound rigidly by their pleadings but in preparation of pleadings counsel are bound to or may be prone to make mistake. A party will not lose his right to have the dispute between him and his adversary decided on the merits simply because a mistake has been made in the preparation of his pleadings. It must always be remembered that the objects of courts is to decide the rights of parties and not to punish them for the mistake which they make in conduct of their cases by deciding otherwise in accordance with their rights. if it is seen that the mistake made in the course of preparing the case of a party to a litigation is not fraudulent, or calculated to overreach the opponent, the court must be ready to correct such a mistake upon an application to it, after al/, courts do not exist for the sake of discipline but for the sake of deciding issues in controversy”
It is submitted that in this case, the Plaintiff did furnish his lawyers with the facts for the preparation of his case but unfortunately, some of the facts were omitted while some were misrepresented. Therefore that this is a classical case in which the courts should grant an application for amendment because the introduction of the facts will bring to fore the real question in controversy between the parties.
It is submitted that at this stage the application can be granted in so far as it is not brought in bad faith or to over reach the Defendants. It is trite law that amendments can be allowed even on the date of judgment or on appeal. See Egwa v. Egwa (2007) 3 NWLR (Pt. 1014) @71.
It is submitted that in the final analysis the Plaintiff /Applicant has made out a good case for the grant of the application and the court is urged lord to so hold and grant the application.
The applicant filed a FURTHER AFFIDAVIT IN SUPPORT OF MOTION FOR LEAVE TO AMEND. It is deposed to by Agba Victoria, litigation Secretary of Equity Chambers. By virtue of her position she is conversant with the facts of this case and has the consent of their principal in chambers and the Plaintiff/Applicant to depose to this affidavit in his behalf.
Paragraphs 1 & 2 are matters within the knowledge of the deponent. Paragraphs 3(a) to 3(d) are admitted while paragraphs 3(e) & (f) are false and therefore denied. A. C. Onyeukwu (Mrs.) informed her in Chambers on 2/5/19 at about 5pm and she verily believed her that it is the 1st, 4th and 5th Defendants that are tardy in his case. They were served the motion for amendment in court and rather react, waited till the further adjourned date whereon they started raising viva voce issue of omission of a paragraph in the Plaintiff’s proposed amended statement of claim and after that issue was resolved still waited till the last adjourned date to serve the Plaintiff’s counsel in court with their counter affidavit and written address after a month’s adjournment.
The Defendants/Respondents shall not be prejudiced by this application as hearing has not started in the matter and the 1st, 4th and 5th Defendants/Respondents can make consequential amendment.
The further affidavit is accompanied by PLAINTIFF’S REPLY ON POINTS OF LAW IN SUPPORT OF MOTION FOR AMENDMENT
According to the counsel as a preliminary point it is submitted that the counter affidavit and written address of the 1st, 4th and 5th Defendants are not properly before my lord having been filed out of time. The 1st 4th and 5th Defendants though out of time failed to take the benefit of order 44 of the High Court Rules. Having so failed to do, the processes are incompetent before the court and cannot be countenanced by the court. The necessary implication it is submitted is that there is no opposition to Plaintiffs application for amendment. See SANUSI V AYOOLA (1992) 9 NWLR (PT. 265) 275.
On the Preliminary point raised by learned counsel in paragraph 3.6 of his address that without a specific application by the Plaintiff for renumbering or the paragraphs of the extant Statement of Claim, that application for amendment of paragraph 95 thereof is incompetent and will lead to confusion, it is submitted that there is no law in support of the counsel’s position. In applications for amendment leave of Court is sought and once it is granted anything or adjustment done to the pleading has the blessing of the court already including renumbering and no special leave other than the general leave for amendment ought to be sought.
It is further submitted that it is trite that once an amendment is granted it relates back to the date the 1st pleading was filed and the 1st pleading ceases to control the proceedings therefore the issue of confusion as argued by counsel cannot arise with all due respect.
In reply to the submission of the learned counsel that the plaintiff was trying to withdraw admission by virtue of the amendment it is submitted firstly, that the statement was not an admission but rather a misrepresentation inadvertently made by counsel while preparing the suit. A look at the entirety of the Plaintiff’s case as pleaded in his Statement of claim would reveal that the old paragraph was inconsistent with the general case stated which means that it is obviously a mistake which can be corrected by an amendment and has been so corrected by the new paragraph 18.
It is submitted that even the English case cited by counsel is in agreement that admissions can even be withdrawn by virtue of amendment where it was done inadvertently. Referred to paragraph 3.11 lines 5-7 of learned counsel’s address. It is further submitted that by the definition given to admission by the English court in that case, an admission is a concession by a party of an assertion by the other. In other words, an admission comes later in time to the assertion being admitted but in this case the statement of claim is naturally 1st in time and the base of the case of the Plaintiff nothing can be admitted in it. It is therefore only a fact pleaded in a reply to Statement Defence that can amount to an admission.
The counsel reiterated her submission that it is trite law that the essence of an amendment is to bring before the court the real issues between the parties and for determining the real questions in controversy see Adekeye v. Akin – Olubade (1987) 3 NWLR (Pt. 60)214, Ratio 1.In the case of AKIN OLUGBADE (SUPRA) PAGE 224 thereof the Supreme Court at paragraphs E-G held thus: “The aim of an amendment is usually to prevent the manifest justice of a cause from being defeated or delayed by formal slips which rise from the inadvertence of counsel. It will certainly be wrong to visit the inadvertence of counsel or mistake of counsel on the litigant. The courts have therefore through the years taken a stand that however negligent or careless may have been the slips, however late the proposed amendment it ought to be allowed, if this can be done without injustice to the other side, or a step taken to ensure justice cannot at the same lime and in the same breath be used to perpetuate injustice on the opposite party. The test as to whether a proposed amendment should be allowed is therefore whether or not the party applying to amend can do so wit out placing the opposite party in such a position which cannot be redressed by the panacea which heals every sore in litigation, namely costs. ”
According to the counsel, the question is, what injustice would the 1st 4th and 5th Defendants indeed all the Defendants suffer if this application is granted and can their sore not be healed by damages? In the circumstances of this case, the Defendants can not suffer any injustice by the grant of this application.
It is submitted that the Plaintiff is entitled by the Rules of this court to amend as many times as it pleases him before pretrial and two times before hearing. Hearing has not even commenced in this case. With respect to counsel’s submission in paragraph 3.14 to 3.15 of his address concerning paragraph 95 of the Statement of claim and the comparison with the Instrument for the Establishment of Ezeship in Obibiezena Autonomous Community Revised 1985, it is submitted that the said submission is premature. The said document has not even been tendered yet, the submission is therefore one for final address.
It is submitted in the final analysis that the 1st, 3rd and 4th Defendants’ opposition is without merit and the court is urged to so hold and grant of the application of the Plaintiff.
1ST, 4TH, 5TH DEFENDANTS’ COUNTER AFFIDAVIT IN OPPOSITION
TO THE PLAINTIFF’S MOTION ON NOTICE FILED ON 25/9/2018 is deposed to by Ojiugo Chimezie, Secretary in dawuda Chambers, Solicitors to the 1st 5th and 6th Defendants in this suit.
He has the authority, consent and approval of the 1st, 5th and 6th Defendants to depose to this affidavit on their behalf.
He is informed by his boss A. C. Nwaneri, Esq. in our office dawuda Chambers, No.1 Ikenegbu Road, Owerri – Imo State on Wednesday 27/3/2019 at about 4pm while reviewing this case and he verily believed him that the Plaintiff commenced this sent on 2017/2017; further to the Plaintiff’s motion filed on 13/12/2017 the court allowed the Plaintiffs to amend the Plaintiffs Statement of Claim; by this motion, the Plaintiff seeks to further amend his Statement of Claim; on the face of the proposed amendment there is nothing new which did not exist at the time the suit was filed; the present amendment is an attempt to alter the facts of the case and improve the case already presented by the Plaintiff; and the Plaintiff has been very tardy in the conduct of this case.
The counsel filed a written address and adopted issue for determination submitted by the Pliantiff:
“Whether the Plaintiff/Applicant made out a case for grant of this application”
According to the counsel, the Plaintiff vide the application seeks to further amend paragraphs 18, 95 and 97 of the Statement of Claim. The counsel does not oppose the proposed amendment to paragraph 97 of the Statement of Claim.
According to the counsel, originally the Plaintiff pleaded as follows in paragraph 18 of the Statement of claim: “Between n” January, 2014 to September, 2015, when the people of Amaorie were given the opportunity to select an Eze, the people of Amaorie were unable to select an Eze as the Screening Committee was yet to turn up their report”.
The Plaintiff complemented paragraph 18 as follows in paragraph 19: “They therefore by a report dated 31st of October 2015; addressed to the 1st Defendant herein expressed their inability to select an Eze”
The counsel went on to state that in the instant application the Plaintiff now seeks to plead in paragraph 18 as follows:”Between 11th January, 2014 to September, 2015, when the people of Amaorie were given the opportunity to select an Eze, the people of Amaorie were unable to select an Eze due to the interference and intrigues of the 5th and 6th Defendants whose desire was to enthrone the 1st Defendant, what is more the Screening Committee’s report was denounced by the 5th Defendant working in conjunction with the 6th Defendant and by a report dated the day 31st day October 2015 addressed to the 7th Defendant the 5th Defendant’s stated reason for denouncing the report was because the Chairman of the screening committee sought to read the report before all present without first handing same to the 5th Defendant”.
–thereby expunging paragraph 19 of the extant Statement of Claim without seeking and obtaining the leave of the court so to do.
Accordingly, similarly the Plaintiff originally pleaded in paragraph 96 (erroneously referred to as paragraph 95) of the Statement of Claim as follows: “Thereafter, such a candidate is presented to Nde Oha and General Assembly of Obibiezena people at the Orie Obibiezena Market Square where he is installed at a sacred place called “Iwu Ahia” after which the Standing Council on Ezeship makes an arrangement for the presentation of the selected candidate to the Local Government Chairman and where anyone is presented and coronated at this “Iwu Ahia” no other person can be so coronated to Eze of the community again during the lifetime of the person so coronated”. However, in the instant application the Plaintiff now seeks to plead in paragraph 95 as follows; “Upon being selected the Ezena elect is then presented by the Standing Council to Nde Oha and the General Assembly of Obibiezena people at the Orie Obibiezena Market Square wherein the Oha Obibiezena hall is situate. After the preliminary ceremonies, the Oldest from Amaeze Obibiezena will then cap/crown the Ezena at the Oha hall and thereafter hand him over to the chief priest who shall in turn take the Ezena to the sacred ground called “IWUAHIA” for rituals. The newly crowned Ezena shall then dance to the traditional music of Ogbudu after which other types of music of the festivity shall continue. Thereafter the Standing Council on Ezeship leads the community to the Owerri North Local Government Chairman for the presentation of the Ezena so coronated. Where a person is so coronated and taken to this “Iwu Ahia” for rituals no other person can be so coronated as Ezena of the community again during the lifetime of the person so coronated”.
As a preliminary point, it is submitted that without a specific application by the Plaintiff for renumbering of the paragraphs of the extant Statement of Claim the application for amendment of paragraph 95 of the Statement of Claim as claimed is incompetent as it will only lead to confusion. The court is therefore urged to shun the said invitation to confusion by refusing the application.
On the merits of the application, it is submitted that by the tenor of the existing paragraph 18 of the Statement of Claim the Plaintiff admitted that the failure of the people of Amaorie to select an Eze was that of the people of Amaorie and that of the screening committee which was yet to turn up their report.
According to the Plaintiff to turn round and seek to hold the 5th and 6th Defendants liable for the said failure under any guise amounts to withdrawal of an admission and is overreaching.
It is submitted that the Plaintiff is acting mala fide when he seeks vide the proposed amendment to withdraw the admission that the failure to select an Eze by the people of Amaorie was that of the people of Amaorie. To be allowed to do so and hold the 5th and 6th Defendants liable for the said failure will not only overreach the 5th and 6th Defendants but will cause injustice on them particularly when the have joined issues with the Plaintiff on the same.
The counsel conceded that the principles of law stated in the Plaintiffs written address in support of the application as regards the essence and rationale for amendment represent to correct position of the general principles of law on the said subject. However the said general principles of law are in the counsel’s respectful view inapplicable to the peculiar circumstances of this case. The counsel relied on Hollis v Burton (1892) 3 ch 226, 236 where according to him it was held that amendment is often not granted where an admission is sought to be withdrawn. An admission is a concession by a party of an assertion by the other unless therefore it was made inadvertently, the court may not allow the pleading to be amended by its withdrawal.
The counsel referred to Ojah v Ogboni & Ors (1976) 1 NMLR 95 where according to him, it was held that as a general rule an amendment under the rules will be granted if it is for the purpose of determining in the existing suit the real question or question in controversy between the parties. Amendment should be allowed unless. 1. It is will entail injustice to the respondent 2. The applicant is acting mala fide. The court is urged to refuse the application in respect of paragraph of 18 of the Statement of Claim.
As regards paragraph 95 of the Statement of Claim the court is referred to Item Nos: 10 and 11 of the “Instrument for the Establishment of Ezeship in Obibi-ezena Autonomous Community Revised 1985” front loaded by the Plaintiff. According to the counsel, the said document does not contain the details sought to be introduced vide further amendment. To allow the said amendment is to contradict the Instrument already placed before the court by the Plaintiff.
It is submitted that amendment is not a license for a party to reopen ones case at will neither is mistake of counsel a cure all balm for all purposes. The court is urged in the circumstances to refuse the application and dismiss same with substantial costs.
Resolution of matter:
I have listened to the submission of the parties. The issue that calls for determination is whether in the circumstances of the case the reliefs for amendment sought by the Plaintiff can be granted.
Now Order 24 Rule 1 provided that A party may amend hios Originating Process and Pleadings at any time before the close of Pretrial Conference and not more than twice during the trial before judgment.
By the Rules of the Court the party is granted an opportunity to amend his processes two times after pretrial and within the trial before judgment. The emphasis seems to be on number of times and not the stages. It only recognizes two stages. Before the close of pretrial it could be any number of times. After pretrial and before judgment it could be for only two times. so as far as the Rules is concerned it is irrelevant whether it is after the close of the Plaintiff’s case or after the close of defendant’s case but when and whether it is Plaintiff or defendant it must be two time.
See OBIALOR & ANOR V. UCHENDU & ORS (2013) LPELR-22048(CA). In ADUN & ORS V. ALILE & ORS (2017) LPELR-42501(CA) the court stated:
“The Learned Counsel for the Appellants relied on Order 24 Rule 1 of the Edo State High Court (Civil Procedure) Rules 2012 and argued that the above Rule gives room to a party to amend his/her originating processes twice before the close of the case and there must be an exceptional circumstances that will allow the Court to grant amendment after close of the case. I do not agree with Counsel for the Appellants in that regard because there is nowhere in Order 24 Rule 1 (Supra) set out earlier in this Judgment, where it is provided that amendment cannot be granted after a case had been adjourned for Judgment. The Appellants argument tends to overstretch the bounds of the said Order 24 Rule 1 in its purport and intendment. See the following cases:-
– NWAMARA v. OKEAHIALAM (Supra); – OKEAHIALAM v. NWAMARA (2003) 12 NWLR (Pt. 835) Page 597 at 600 661 Paragraphs F B; – AKINNUBI v. AKINNUBI (supra) Pages 156 157 paragraphs H D
It is does appear that the 1st 5th and 6th Defendants are not contending the stage at which this amendment is sought or that the Plaintiff has exceeded the number of times permitted by the Rules in seeking for an amendment.
Rather contended that there is an admission which the Plaintiff sought to withdraw by this amendment.
I have observed that the 5th Defendant was sued as Chairman Amaori General Assembly and the 6th Defendant sued as Secretary Amaori General Assembly. I do not think that amendment sought drastically changed the case of the Plaintiff.
Again the 1st, 5th and 6th Defendants did not indicate which paragraph of their defence that the Plaintiff admitted initially which it now seeks to rescind by amendment. The 1st, 5th, and 6th Defendants only referred to the averments in the Pleadings sought to be amended and the Further Amendment.
I do not think at the stage of pleading a party can be stopped from pleading any document or frontloading same. Since it is only the facts that are pleaded and not the evidence in support of the facts
The granting of leave to amend pleadings is at the discretion of the Court to which the application is made and just like other discretionary powers of Court, the exercise of the discretion must be shown to have been judicial and judicious having regard to the presented facts and circumstances of each particular case, the main effect of which is, to do substantial justice. In BARAU v. MAFUA (2014) LPELR-23962(CA), it is stated:
“Now, it is trite that an application to amend pleadings is an appeal to the discretionary jurisdiction of the Court.” Per ABIRU, J.C.A. (P. 18, paras. F-G)
The primary object of the rule is that the Courts should try the case based on the merits and should subsequently allow the amendments which are must for assessing the real controversy between the parties. This ensures that the injustice is not caused to the either side based on minute omissions by the parties. In the very old case of CROPPER VS. SMITH (1884) 29 CH D 700 Bowen, L.J,
“Now, I think it is a well-established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding maters in controversy, and I do not regard such amendment as a matter of favor or of grace.”
It is not in doubt this suit is in its initial stage and no or little evidence had been led when the application for amendment was filed and this amendment would only facilitate the trial Court to decide the controversy in issue. The amendment would help the Court to come to a correct conclusion.
In the circumstances of this case the application succeeds:
- The Plaintiff is granted Leave to further amend the Plaintiff/Applicant’s Statement of Claim in the terms set out and underlined in paragraphs 18, 95 and 97 of the proposed amended statement of claim exhibited to this motion.
- The plaintiff is granted Leave to file further, further witness deposition for Eze-Elect Shedrack Amadi.
- An order is made deeming the Further Amended Statement of Claim, Further Further witness Deposition of Eze-Elect Shedrack Amadi, filed alongside this motion as properly filed and served the appropriate fees having been paid.
I so hold.
I.M.Njaka
Judge