ALHAJI BELLO BARAU v. CHARLES MAFUA ESQ

CORAM

ITAG. MBABA, JUSTICE COURT OF APPEAL

BABA ALKALI BA?ABA

ABDU ABOKI    JUSTICE, COURT OF APPEAL.

PARTIES

ALHAJI BELLO BARAU   APPELLANTS

CHARLES MAFUA ESQ. RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Plaintiff/Respondent instituted an action against the Defendant/Appellant at the High Court of Kaduna State claiming the sum of N8, 453,727.00 (Eight Million, Four Hundred and Fifty-Three Thousand, Seven Hundred and Twenty-Seven Naira only) being professional fees owed the Plaintiff/Respondent by the Defendant/Appellant  for all the legal services provided by the Plaintiff /Respondent in respect of Suit No. KDH/KAD/728/2003; HC/KD/CS/10/09 and KDH/KAD/387/08 or in the alternative, the payment of such sum as shall be determined by the Court based on the quantum of service provided by the Plaintiff/Respondent to the Defendant/Appellant. The Defendant filed his statement of defence and subsequently filed an application to amend same on grounds that he needs to plead some new facts that came to his knowledge after filing the Statement of Defence. The application was refused by the trial Court on the grounds that it was capable of embarrassing the Plaintiff/Respondent. Dissatisfied with the ruling of the trial Court, the Defendant/Appellant appealed to the Court of Appeal.

HELD

Appeal Allowed

ISSUES

1. Whether the trial court was right in refusing the Defendant’s Amendment as contained in paragraph 15 of his Amended Statement of Defence dated 15th June, 2012 in light of the Plaintiff’s Assertion in paragraph 4(e) of his reply to Statement of Defence dated 16th December, 2010?

RATIONES DECIDENDI

APPEAL – DETERMINATION OF AN APPEAL – FAILURE OF THE RESPONDENT TO FILE ITS BRIEF OF ARGUMENT DOES NOT AUTOMATICALLY ENTITLE THE APPELLANT TO JUDGMENT

“An appeal is determined based on cogent and credible argument supported by evidence. It follows therefore that an Appellant can not be entitled to judgment simply because the Respondent has abandoned his defence by defaulting to file his brief of argument.”PER A.ABOKI, J.C.A

APPLICATION TO AMEND PLEADINGS – NATURE OF AN APPLICATION TO AMEND PLEADINGS

“Now, it is trite that an application to amend pleadings is an appeal to the discretionary jurisdiction of the Court”. PER A. ABIRU, J.C.A

AMENDMENT OF PLEADINGS – AMENDMENT AFTER THE CLOSE OF PLEADINGS REQUIRES A HIGHER QUALITY OF EVIDENCE THAN AMENDMENT BEFORE THE COMMENCEMENT OF TRIAL

“The onus on an application seeking leave to amend is on the party seeking the indulgence to show that the proposed amendment does not run foul of the recognized principles. It commonsensical that the stage of the proceedings at which a court is called upon to exercise its discretion will determine the quality and quantity of materials that an applicant must put before the court to succeed. The quality and quantity of materials needed to sustain an application made at the commencement of trial cannot be the same that will be required for an application made after the close of the case of one of the parties; the latter application requires a much higher quality and quantity of materials. Thus, the courts have held that an application for amendment brought at a late stage of proceedings and which will entail the calling of additional evidence or affect the character of the case will require a higher quality of evidence to sustain than an amendment proposed before the commencement of trial – Laguro Vs Toku(1992) 2 NWLR (Pt.223) 278 and Ita Vs Dadzie(2000) 4 NWLR (Pt.652) 168.” PER A. ABIRU, J.C.A

EXERCISE OF DISCRETION – WHEN AN APPELLATE COURT CAN INTERFERE WITH THE EXERCISE OF DISCRETION BY A LOWER COURT

“An appellate Court does not ordinarily interfere with the exercise of discretion by a lower Court but it will do so where it is evident from the facts as contained in the records of appeal that the lower Court exercised its discretion upon wrong principles of law or improperly, or that a miscarriage of justice resulted or would result therefrom – Integration (Nig) Ltd Vs Zumafon (Nig) Ltd (2014) 4 NWLR (Pt.1398) 479 and Okorocha Vs Peoples Democratic Party (2014) 7 NWLR (Pt.1406) 213”. PER A. ABIRU, J.C.A

INTERFERENCE WITH FINDINGS OF FACTS – WHEN CAN THE COURT OF APPEAL INTERFERE WITH THE FINDINGS OF FACT BY A TRIAL COURT

“This Court can interfere with the findings of fact by a trial Court where such findings are not correct, lawful and just. See; SPDC (Nig) Plc v. Dino (2007) 2 NWLR (Pt.1019) 438.” PER A. ABOKI, J.C.A

COURT – AN APPELLATE COURT HAS THE POWER TO EXAMINE THE RECORD OF APPEAL IN DETERMINING THE ISSUES PLACED BEFORE THE COURT

“In determining the issues placed before the court, this Court has the power to look at every thing contained in the record of appeal before it, in order to enable it arrive at a just decision of the Appeal and to see whether the trial Court exercise its discretion judicially and judiciously. See:- Chevron (Nig) Ltd v. Onwugbelu (1996) 3 NWLR (Pt.437) page 404; First Fuels Ltd Vs NNPC (2007) 2 NWLR (Pt.1018) 276;
Bello Vs Yakubu (2008) 14 NWLR (Pt.1106) 10-4.”. PER A. ABOKI, J.C.A

CASES CITED

STATUTES REFERRED TO

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