Alsthom S. A. V. Chief Dr. Olusola Saraki (2005)

LAWGLOBAL HUB Lead Judgment Report

ACHIKE, J.S.C.

The appellants/applicants in a motion dated and filed on 19/4/2000 prayed the court that their amended writ of summons and the 2nd further amended statement of claim be amended as follows:

1. That the endorsement in the amended writ of summons and paragraph 17(a) of the 2nd further amended statement of claim be amended to read as follows:

“The plaintiffs claim jointly and severally from the defendant the sum of US $9,747,914.44 (Nine Million Seven Hundred and Forty-Seven Thousand, Nine Hundred and Fourteen US Dollars Forty-Four (cents) being outstanding debt owing to the plaintiffs as a result of a loan granted by the 1st plaintiff to the defendant at his request which debt in the sum of US $9, 747,914.44 (Nine Million Seven Hundred and Forty-Seven Thousand, Nine Hundred and Fourteen US Dollars Forty-Four cents) the Naira equivalent of which was N45,387,204.42k (Forty-five Million Three Hundred and Eighty-Seven Thousand, Two Hundred and Four Naira, Forty- Two Kobo) as at 31st July 1987 converted to Naira at the prevailing exchange rate on 31st August 1987 of US $1.00 to N4.6561”.

2. That the reliefs sought contained in paragraph 4 of the notices of appeal of the 1st and 2nd appellants/applicants be amended to read as follows:

“Allow the appeal, set aside the majority decision, uphold the minority decision giving judgment to the 2nd appellant/applicant with the variation that the judgment of the Honourable Justice A.B. Adeniji in the High Court of Lagos State be varied by substituting the sum of US $9, 747,914.44 (Nine Million Seven Hundred and Forty Seven Thousand, Nine Hundred and Fourteen US Dollars Forty-Four cents) being the outstanding debt owing to the 2nd appellant/applicant or the naira equivalent thereof, for the sum of N45,387,204.42 contained therein”.

In moving the applicants’ motion, their learned counsel H. O. Ajumogobia, Esq., said that the motion is supported by an 18 paragraph affidavit and a further affidavit of eight paragraphs to which are attached exhibits 1 B1, 1 B1A, 1 B2, 1 B3 and 1 B4 as averred in paragraph 5 of the further affidavit. Exhibit 1 B1 is a copy to the writ of summons filed on 2nd September, 1987, Exhibit 1 B1A is a copy of the amended writ of summons, Exhibit 1 B2 is a copy of the 2nd further amended statement of claim filed on 18th March, 1991, Exhibit 1 B3 is a copy of the statement of defence filed by the defendant on 4th December, 1992 and Exhibit 1 B4 is a copy of an excerpt of the record of proceedings at the trial. Paragraph 6 of the further affidavit makes reference to the further writs of summons and proposed amended 2nd further amended statement of claim which are annexed thereto and marked as exhibits SU 1 and 2 respectively.

Counsel submits that the exhibits specially referred to in paragraph 5 of the further affidavit show that the transaction between the parties was in US Dollars. And furthermore, counsel submits that after due trial, the trial court found the claim was one for indebtedness on the denomination of US Dollars in terms of US $9,747,914.46. Counsel also refers to Exhibit 1 B3, i.e. the statement of defence wherein the defendant/respondent raised the plea of illegality in that the loan was illegal and unenforceable being in foreign currency i.e. in US Dollars, contrary to the Exchange Control Act, 1962.

He finally submits that the amendment sought is to bring the pleadings in line with the evidence already adduced, and placed reliance on Okolo & Ors v. Nwamu (1973) 1 All NLR (Pt.1) 124 and Ijebu Ode Local Government v. Adedeji Balogun & Co. (1991) 1 NWLR (Pt.166) 136 at P.157 or (1991) 1 SCNJ 1. He urges the court to grant the application.

Defendant’s/respondent’s learned counsel, Idris Kutigi. Esq., submits that the court, in considering the application, should refer to the proceedings in the High Court and the Court of Appeal in order to ensure that justice is done to either party, and that the motion for amendment should not be treated in isolation. He submits that an application for amendment as in the present case, should be taken at the hearing of the appeal and places reliance on Adekeye v. Akin-Olugbade (1987) Vol. 18 NSCC 865 at 871; (1987) 3 NWLR (pt.60) 214. It is counsel’s further submission that there is no evidence of the mode of repayment of the money nor was the trial court asked to enter judgment in US Dollars. He also contended that if the amendment is granted it will enable the applicant to put in a new issue neither fought in the trial court nor in the Court of Appeal. Finally, counsel submits that the amendment sought is not in line with the evidence led at the trial.

In conclusion, counsel says that he relies on all the paragraphs of the counter affidavit and urges the court to dismiss the application.

Replying, Mr. Ajumogobia submits that the application is not an attempt to raise a fresh point of law for the first time but a mere application for amendment of the writ of summons and paragraph 17(a) of the 2nd further amended statement of claim, as well as the relief sought as set out in paragraph 4 of the appellants/applicants notice of appeal.

I wish first to dispose of the submission by learned counsel for the respondent wherein he contended that the application for amendment, such as in the present case, should be taken together at the hearing of the appeal for which he placed reliance on Adekeye v. Akin-Olugbade (supra). Suffice it to say that such an approach has nothing to commend it. It is clearly neater to dispose of all interlocutory applications in an appeal before seriously embarking on the appeal properly so-called. Be that as it may, the above authority cited in this regard is demonstrably unhelpful to the submission made by learned counsel. The same is accordingly discountenanced.

There is yet another submission by respondent’s learned counsel to the effect that the applicants’ application is a surreptitious ways of raising a fresh or new issue not addressed at the two lower courts which ought not be allowed. I do not accept this submission. The procedure to allow a party to an appeal to canvass a new issue not raised at the lower court is firmly established. The present application is not even remotely similar to it.

Reading the pleadings of the parties as amended from time to time – and the evidence tendered at the trial bearing in mind that the respondent did not field any witness and the judgment of trial High Court, it is beyond dispute that the crux of the controversy between the parties was a claim initiated by the appellants/applicants for the repayment of a loan given by the 1st appellant the respondent at the latter’s request in the sum of US$5,000,000 and the said loan with interest was guaranteed by the 2nd appellant. The striking feature of the parties’ loan agreement is that the loan was given in US Dollars. When the demand was made for the refund of the indebtedness, the respondent, by the letter dated 15th September, 1986, written to 1st appellant did not only acknowledge the loan of US $5,000,000 but unequivocally informed him that I”(meaning the respondent) have instructed my solicitor Chief F.R.A. Williams (SAN) to contact you and arrange settlement for the loan”.

The learned trial Judge, Adeniji, J entered judgment on 30th June, 1993 in favour of the applicants in the following terms: