CORAM

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CLARA BATA OGUNBIYI    JUSTICE SUPREME COURT

CLARA BATA OGUNBIYI    JUSTICE SUPREME COURT

CLARA BATA OGUNBIYI    JUSTICE SUPREME COURT

WILLIAMS, JUSTICE, SUPREME COURT

KUDIRAT MOTOMMORI OLATOKUNBO KEKERE-EKUN    JUSTICE SUPREME COURT

CLARA BATA OGUNBIYI    JUSTICE SUPREME COURT

WILLIAMS, JUSTICE, SUPREME COURT

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PARTIES

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COMPAGNIE GENERALE DE GEOPHYSIQUE (NIGERIA) LIMITEDSAUVENET JEAN LOUIS   APPELLANTS

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IDORENYIN

RESPONDENTS 

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Defendants/Appellants sought an amendment of statement of defence after the Plaintiff/Respondent had closed its case. Since  the amendment introduced fresh facts which were not in existence as at when the suit commenced, the trial court was of the opinion that the grant of such amendment would overreach and work injustice on the plaintiff, hence the trial Court dismissed the Application. Dissatisfied, with the decision of the High Court, the Defendant/Appellant appealed to the Court of Appeal which affirmed the trial court’s ruling. Dissatisfied, the Defendant/Appellant has further appealed to the Supreme Court.

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HELD

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Appeal Dismissed

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ISSUES

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1. Whether the Court below was correct in affirming the decision of the trial court refusing the amendment sought by the Appellants herein (as defendants) on the basis that the amendment sought was immaterial, sought to introduce fresh facts and was intended to overreach?

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RATIONES DECIDENDI

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AMENDMENT – CIRCUMSTANCES WHERE AN AMENDMENT CAN BE GRANTED

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“An amendment may be granted in order to bring the real issues in controversy between the parties before the court or in order to bring the pleadings in line with evidence already led at the trial”. PER K.M.O.KEKERE –EKUN, J.S.C

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AMENDMENT OF PLEADINGS – WHEN CAN PLEADINGS BE AMENDED

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“Pleadings may be amended at any stage of the proceedings before judgment is delivered upon good and proper reasons shown”. PER K. M.O. KEKERE –EKUN, J.S.C

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AMENDMENT OF PLEADINGS – INSTANCES WHERE AMENDMENT OF PLEADINGS WILL BE REFUSED BY THE COURT

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‘‘As a general rule, an amendment is seldom refused by the Court, however, where taking into consideration the prevailing circumstances of a particular case, the court is of the view that the proposed amendment is fraudulent, intended to overreach or in bad faith, would cause avoidable delay, take the plaintiff by surprise or introduce new matters and generally work injustice against one of the parties in the case…” PER M.U. PETER-ODILI, J.S.C.

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AMENDMENT – AN AMENDMENT IS ALLOWED TO ENABLE THE COURT USE THE EVIDENCE ON RECORD TO SETTLE THE REAL ISSUE IN CONTROVERSY BETWEEN THE PARTIES

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“An amendment should be allowed to enable the court to use the evidence already on record to settle the real issue in controversy between the parties. See Imonike V. Attorney General, Bendel State (1992) NWLR (pt. 248) 396, Asani Taiwo V. Adamo Akinwunmi (1975) 4 SC 102, Adekeye V. Akin-Olugbade (1987) 6 SC 268”.PER J.I.OKORO, J.S.C

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AMENDMENT – AN AMENDMENT WILL NOT BE ALLOWED IF IT WILL CAUSE AN EMBARRASSMENT TO THE OTHER PARTY

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“No amendment in any form should also be allowed if the outcome will entail surprise or cause embarrassment to the other party”. PER C. B. OGUNBIYI, J.S.C.

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AMENDMENT OF PLEADINGS – JUSTIFICATION FOR ALLOWING AMENDMENT OF PLEADINGS AFTER EVIDENCE HAS BEEN CONCLUDED

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“Once the calling of evidence has been concluded, any amendment of the pleadings or claim can only be justified or allowed on the premises that evidence in support of it is already on record, so it is necessary and in the interest of justice to allow the amendment in order to make the pleading or claim accord with the evidence already on record”. PER J.I.OKORO, J.S.C

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CONCURRENT FINDINGS OF THE LOWER COURTS – INSTANCES WHERE AN APPELLATE COURT WOULD INTERFERE WITH THE CONCURRENT FINDINGS OF A LOWER COURT

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“It is to be said that the position of the law with regard to the attitude of an appellate Court such as the Supreme Court to concurrent findings is now well settled or trite. That is to say that unless those findings are found to be perverse or not supported by evidence or were decisions reached from a wrong approach to the evidence or as a result of a wrong application of a principle of substantive or procedural law, then this Court would not interfere with those findings even if wearing the shoes of the Courts below, it would have come to a different conclusion. See Lasisi Adegbesan Abimbola v Saka Abatan (2001) 9 NWLR (Pt. 717) 66; Ifeyinwa Ogoejeofo v Daniel Chiejina Ogoejeofo 3 NWLR (Pt. 966) page 205 at 226.” PER M.U. PETER-ODILI, J.S.C.

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ERROR IN JUDGMENT – NATURE OF ERROR IN JUDGMENT THAT WILL WARRANT AN APPELLATE COURT’S INTERFERENCE

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“It is not every mistake or error in a judgment that will result in the appeal being allowed since it is only that error which is substantial in such a way that it has occasioned a miscarriage of justice that would warrant the appellate Courts interference such as this Court is being called upon to do. I rely on Abimbola v Abatan (2001) 9 NWLR (Pt. 717) 66 at 77”. PER M. U. PETER-ODILI, J.S.C.

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AMENDMENT – DUTY OF THE COURT IN ALLOWING AMENDMENT

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“An amendment that gives an impression of an act in bad faith is not to be entertained and allowed. What is paramount in the mind of a court always is to ensure that justice is served to all parties who should not be allowed to take an undue advantage of the other. The court in checking against any such surreptitious motive will always consider the balance of the convenience between parties of the outcome of the application.” PER C. B. OGUNBIYI, J.S.C.

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AMENDMENT OF PLEADINGS – ATTITUDE OF THE COURT IN AMENDING PLEADINGS TO INTRODUCE FACTS NOT IN EXISTENCE AT THE TIME OF INITIATING THE ACTION

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“The stance of the appellant that the Court has the power to amend pleadings is not situated properly with the facts of the case in hand where the particular issue sought to be introduced was not in existence at the time of the initiation of the action and would clearly change not only the face of the pleadings and proceedings but would lift the carpet off the feet of the Plaintiff unprepared. I refer to the cases of Mobil Oil v Coker (1971) NMLR 56, Rotimi v Macgregor(1974) 11 SC 133 at 153”. PER M.U. PETER-ODILI, J.S.C.

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AMENDMENT – CIRCUMSTANCES WHERE AMENDMENTS ARE GRANTED EASILY

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“Amendments are more easily granted where the grant does not necessitate the calling of additional evidence or changing the character of the case on the ground that no prejudice would result from the amendment. See: Laguro Vs Toku(1992) 2 NWLR (Pt.223) 278 @ 291 H. While the various rules of court provide that an amendment can be made at any stage of the proceeding, different considerations apply depending on the stage at which the amendment is sought”. PER K.M.O.KEKERE –EKUN J.S.C

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AMENDMENT OF PLEADING – APPROPRIATE TIME FOR SEEKING AN AMENDMENT OF PLEADINGS

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“An amendment in a pleading can be sought and made at any stage of a proceeding before judgment. See the old English decision of Cropper V. Smith (1884) 26 ch.D 700 at 710 – 711 where Bowen L J. Observed and said;
“……………….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”. PER C. B. OGUNBIYI, J.S.C.

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AMENDMENT OF PLEADING – PURPOSE FOR ALLOWING AMENDMENT OF PLEADINGS

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“The purpose for allowing such privilege is to enable parties conduct their cases properly by placing before the court all relevant facts necessary for the just determination of disputes between them”. PER C. B. OGUNBIYI, J.S.C.

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AMENDMENT – DUTY OF THE COURT TO EXERCISE ITS DISCRETIONARY POWERS IN GRANTING OR REFUSING AN AMENDMENT

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“An amendment which will enhance the justice of a case will hardly be refused by any court except however, it occurs to the judge in his opinion that the intention is fraudulent and with a hidden agenda, which will generally work injustice against the opponent. The law in such a situation has therefore given the court wide discretionary powers to exercise in the determination of each case, which should be considered always on its own peculiar circumstance, bearing in mind that same sets of cases with similar facts may not necessarily yield the same outcome”. PER C. B. OGUNBIYI, J.S.C.

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AMENDMENT OF PLEADINGS – PURPOSE OF AMENDING PLEADINGS

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“It is trite 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 determination by the court”. PER J.I.OKORO, J.S.C.

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AMENDMENT OF PLEADINGS – AMENDMENTS ARE ALLOWED BEFORE THE CLOSE OF EVIDENCE IN ORDER FOR SUCH EVIDENCE TO BE ADMISSIBLE

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“Before the close of evidence, such amendments are allowed to make such evidence as may be called admissible, as any evidence on an issue which was not pleaded or a claim not on record is clearly inadmissible. SeeAmenieka Emegokwe V. James Okadigbo (1973) 1 ALL NLR (pt. 1) 379 and Obijuru V. Ozimus (1985) 2 NWLR (pt. 6) 167”. PER J.I.OKORO J.S.C.

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AMENDMENT OF PLEADINGS – PURPOSE OF AMENDMENT OF PLEADINGS

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“For a clear view of what amendment of Pleadings portend and the principles applying thereof, the authors of the book, Pleadings: Principles and Practice (Sweet & Maxwell) by Sir Jack Jacob, Qc and Ian S. Goldrein, Barrister at Chapter II of their treatise stated thus:-
“The wide and extensive powers of amendment vested in the Courts are designed to prevent failure of justice due to procedural errors, mistakes and defects and they are exercised to further serve the aims of justice. The powers of amendment are intended to make more effective the function of the Courts to determine the true substantive merits of the case, to have more regard to substance than to form, and thus to free the parties and the court from technicalities or formalities of procedure and to correct errors and defects in the proceedings”. PER M.U. PETER-ODILI, J.S.C.

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AMENDMENT – CIRCUMSTANCES WHERE AN AMENDMENT WILL NOT BE GRANTED

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“An amendment will therefore not be granted where it will entail injustice to the adverse party; where the application is made mala fide or where, by his blunder, the applicant has done some injury to the respondent, which cannot be compensated by costs or otherwise. See: Ojah &Ors Vs Ogboni &Ors. (1976) 1 NMLR 95 @ 99; Cropper Vs Smith (1884) 26 Ch. D 700 @710 – 711; Imonikhe & Anor. Vs A.G. Bendel State &Ors. (1992) 6 NWLR (Pt.248)396; OguntimehinVs Gubere (1964) 1 ALL NLR 176 @ 179 -180”. PER K. M.O.KEKERE –EKUN, J.S.C.

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POWER OF THE COURT TO GRANT AN AMENDMENT – THE COURT WOULD EXERCISE ITS POWERS AND GRANT AN AMENDMENT IN THE INTEREST OF JUSTICE

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“It is within the power of the Court to grant an amendment even if the amendment would add to the existing cause of action or substitute therefore a new cause of action provided that the additional or new cause of action arises out of the same or substantially the same facts as are contained in the pleadings.The key point to be considered is the interest of justice and a situation where the award of costs would not meet that interest of justice.”See Ipadeola v Oshowole (1987) 3 NWLR (Pt. 59) 18 at 33”. PER M.U. PETER-ODILI, J.S.C.

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CASES CITED

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STATUTES REFERRED TO

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None

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