Legalpedia Citation: (2023-12) Legalpedia 50673 (CA)

In the Court of Appeal

Holden At Calabar

Tue Dec 12, 2023

Suit Number: CA/C/176/2019(R)

CORAM

Hamma Akawu Barka Justice, Court of Appeal

Balkisu Bello Aliyu Justice, Court of Appeal

Peter Chudi Obiora Justice, Court of Appeal

PARTIES

1. FRANCIS THOMAS ESSIEN

APPELLANTS

1. ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, AKWA IBOM STATE
2. GOVERNOR OF AKWA IBOM STATE
3. GOVERNMENT OF AKWA IBOM STATE

RESPONDENTS

AREA(S) OF LAW

APPEAL, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The contention is about an application brought praying the Court for leave to amend the 1st-3rd Respondents Brief of Argument and deeming the said Amended Respondents Brief of Argument filed as having been properly filed and served. They claim it is necessary to enable them incorporate some issues while and expunge other issues In opposing the application, the learned appellant’s counsel filed the appellant’s opposition on points of law to the Respondent’s motion for amendment claiming that it is aimed at over-reaching the Appellants as they have been amending their briefs since the Appellants filed their brief of argument.

HELD

Application dismissed

ISSUES

Whether this Court can grant leave to the Respondents to amend their respondents’ brief in the circumstance of the case?

RATIONES DECIDENDI

AMENDMENT – CONDUCT OF COURTS TO APPLICATIONS FOR AMENDMENT – WHEN AN APPLICATION FOR AMENDMENT CAN BE BROUGHT

Now Order 4 R1 provides: –

“In relation to an appeal, the Court shall have all the powers and duties as to amendment and otherwise of the Court below, including without prejudice to the generality of the foregoing words, in civil matters, the powers of the High Court in civil matters to refer any question or issue of fact arising on the appeal for trial before or inquiry and report by an official or special referee. In relation to a reference made to an official or special referee, anything, which can be required or authorised to be done by, to or before the Court below, shall be done by, to, or before the Court.”

Basically, an application for amendment can be brought at any stage of the proceedings before the delivery of judgment so long as it does not entail injustice on the other party. See UBN vs. Lawal (2012) 6NWLR (pt. 1295) 186, CGG (Nig) Ltd vs. Idorenyin (2015) 13NWLR (pt. 1475) 149,Adetutu vs. Aderohunmu(1984) 1SCNLR 515. The rationale behind this is to bring into focus the real issues in controversy for the determination of the Court. Mostly the application of the principle applies, when parties seek to amend their pleadings before judgment, the only caveat being that it does not prejudice the other party by such an amendment. It has been contended that there is no specific provision of the rules that deals with the amendment of addresses, and therefore the instant application unknown to law. Whereas it might be correct asserting that no specific rule of Court can be seen dealing with addresses of counsel, it is trite law that the aim of an amendment ordinarily to prevent the manifest justice of the cause from being defeated. The intendment of the law expressed in the case of Ologun vs. Fatayo (2013) 1NWLR (pt. 1335) 303, Akaninwo vs. Nsirim (2008) 9NWLR (pt. 1093) 439 is the attainment of justice regardless of the length of time taken, or any other considerations, so long as the other party will not be prejudiced, and or that he cannot be compensated as to costs. – Per H. A. Barka, JCA

RULES OF COURT – THE ESSENCE OF RULES OF COURT

It must be borne in mind however, that the grant or exercise of the powers of the Court in that regard is discretionary founded on the well-known principle that the discretionary exercise be exercised judicially and judiciously.

My Lords, the wordings of Order 4 Rule 1, confers upon this Court the powers as to amendment, which power could have been exercised by the lower Court. In other words, if the lower Court had power to grant the application for amendment being sought, then this Court would be imbued with similar power to grant the same. It needs to be pointed out that rules of Court are made for the convenience and order in the hearing of cases in Court. They are made to help and not to suffocate or defeat justice. They are made to aid justice. The cases on this legal principle are so numerous, but includes, Fidelity Bank Plc vs. Monye (2012) 10NWLR (pt. 1307) 1, Odua Investment Co. Ltd vs. Talabi (1997) 10NWLR (pt. 523 1, UTC Nig Ltd vs. Pamotei (1982) 2 NWLR (pt. 103) 244 and Chime vs. Chime (2001) 3NWLR (pt. 701) 527 amongst so many others. – Per H. A. Barka, JCA

ABUSE OF COURT PROCESS – HOW ABUSE OF COURT PROCESS MAY MANIFEST

Truly as stated in the words of the Apex Court through the mouth of Mohammed JSC, the abuse of Court process or abuse of judicial process may manifest in both a proper or improper use of the judicial process in litigation. I believe this is one of such instances of an improper utilisation of the Court process. – Per H. A. Barka, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Court of Appeal Rules 2021
3. Akwa Ibom State High Court (Civil Procedure) Rules 2009

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