CORAM
PARTIES
SEGUN LABI APPELLANTS
ALHAJI KAMORU ADEYEMI RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant as Defendant at the lower Court was granted leave to amend his statement of defence which he failed to amend. Thereafter, the Respondent amended his statement of claim pursuant to the leave of court granted him.The Appellant within the time allowed filed a consequential amended statement of defence which was struck out by the court. The Appellant thereafter applied to set aside the order of the Court but the lower Court struck out the motion and held that the Appellant had no defence before the Court and thereby not allowing him to use the existing statement of defence nor the amended statement of defence. Judgment was entered in favour of the Respondent without the Appellant being given an opportunity to be heard. Dissatisfied, the Appellant appealed to this Court.
HELD
Appeal Allowed
ISSUES
Whether upon the amendment of the statement of claim by the Respondent the Appellant was entitled in law to file a consequential amended statement of defence.Whether or not there was an existing pleading made by the Appellant upon which he should have been heard by the Learned Trial Court.Whether or not the failure of the trial court to allow the Appellant to lead evidence before the court delivered her judgment was a breach of his right to be heard and therefore occasioned grave injustice to the appellant.
RATIONES DECIDENDI
FAIR HEARING-ATTRIBUTES OF FAIR HEARING
“Attributes of fair hearing have been listed by the apex court as follows:
“There are certain basic criteria and attributes of fair hearing, some of which are relevant in this case.
(i) That the court shall hear both sides not only but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case.
(ii) That the court or tribunal shall give equal treatment, opportunity and consideration to all concerned on this: Adigun V Attorney General, Oyo State & Ors (1987) 1 NWLR (Pt 53) 678.
(iii) That the proceedings shall be held in public and all concerned shall have access to and be informed of such a place of public hearing; and
(iv) That having regard to all the circumstances, in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done.”
See Baba V N.C.A.T.C. (1991) 5 NWLR (Pt 192) 388 also KOTOYE V CBN (1989) 1 NWLR (Pt 98) 449. PER Y. B. NIMPAR, J.C.A
FAIR HEARING-MEANING OF FAIR HEARING
“It is also settled that fair hearing in essence means giving equal opportunity to the parties to be heard by the court.”PER Y. B. NIMPAR, J.C.A
LEAVE OF COURT -WHETHER FAILURE TO USE LEAVE GRANTED TO A PARTY TO AMEND A PROCESS CAN ATTRACT PUNITIVE ACTIONS FROM THE COURT
“Furthermore, leave granted a party to amend a process and failure to utilize same is not one of the orders that attract punitive action from the court, it is not contempt of the court.”PER Y. B. NIMPAR, J.C.A
FAIR HEARING- TEST OF FAIR HEARING
“The test of fair hearing is the impression of a reasonable man who was present at the trial whether from his observation he would say justice was done.”PER Y. B. NIMPAR, J.C.A
AMENDMENT-WHEN AN AMENDMANT IS SAID TO TAKE EFFECT
“An amendment is known to take effect from the date of the initial process, see the case of Attorney General of Ekiti State & Ors V Victor Adegoke Adewunmi & Anor (2002) 1 S.C. 47 where the apex court held thus:
“The principle 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 which ever nature and at whatever stage it is made. Therefore when a writ of summons is amended, it dates back to the date of the original issue of such writ and consequently the action will continue as if the amendment has been inserted from the beginning.”
See also UBA Plc V Abdullahi (2003) 3 NWLR (Pt 870) 359; Nwosu V Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt 135) 688 and The House Of Representative & Ors V The Shell Petroleum Development Company of Nigeria And Anor (2010) LPELR – 5016 (CA)..” PER Y. B. NIMPAR, J.C.A
LEAVE TO AMEND -EFFECT OF FAILURE TO USE LEAVE TO AMEND
“The legal position is settled that failure to use leave to amend means the original process remains, see Motoh V Motoh (Supra) where the court held as follows:
“It is the law that where leave to amend pleading within a stipulated time is granted to a party and the party fails to file an amended pleading, his case will be considered on the pleading not amended.”
See also Amam (Nig) Ltd V Leventis Motors Ltd (1990) 5 NWLR (Pt 151) 458. ”PER Y. B. NIMPAR, J.C.A
CASES CITED
STATUTES REFERRED TO
Lagos State Civil Procedure Rules
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