Union Bank Of Nigeria Plc. V. Alhaji Sadiku Lawal (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A. (Delivering the Lead Ruling)

By a motion on notice dated 29th January, 2010 and filed on 8th February, 2010, the Respondent/Applicant prayed for the following reliefs:

“1. LEAVE to Respondent/Applicant to Amend Respondent’s Brief of Argument dated and filed on 11th January, 2007 in the manner shown in the Amended Respondent’s Brief of Argument attached to this application.

2. AN ORDER deeming the Amended Respondent’s Brief of Argument dated 29th January, 2010, already filed as properly filed and served”.

The grounds upon which this application is anchored are given as:-

“1. To enable the Respondent/Applicant properly respond to all the issues of law and facts raised in the Appellate court.

2. To enable this court determine the appeal on the merit effectively and conclusively”.

In support of the application is a 12 paragraphs affidavit deposed to by one Michael Johnson, a Litigation Manager in Applicant counsel’s Chambers. Attached to the affidavit is one Exhibit marked “Exhibit GFC 1”.

Opposing this application, the Appellant/Respondent filed a counter affidavit of 10 paragraphs deposed to by Adetoyese Latilo, a Legal practitioner in the law firm of Paul Usoro & Co., the firm handling the case of the Appellant/Respondent. One exhibit marked “PUC 1” is annexed to the counter affidavit. The Applicant has filed a reply affidavit of 10 paragraphs.

On 4th October, 2011 when this application came up for hearing, the learned counsel for the Applicant, U. Adindu Esq., moved the application and submitted that courts should approach the issue of amendment liberally particularly when such an amendment will meet the justice of the case. He refers to the case of NDDG v. Precision Associations Ltd. (2006) 16 N.W.L.R. (pt.1006) 507 at 559-9 paras A-B. He submitted further that amendment includes rewriting the entire document citing the case of Owodunmi v.

The Registered Trustees of Celestial Church of Christ & 3 Ors (2000) 10 N.W.L.R. (pt.675) 315 at 353-4 paras A-H; NNB PLC v. Denclag Ltd. (2005) 4 N.W.L.R. (pt.916) 549 at 601 paras C-E; Adewunmi v. Att. Gen. Ekiti State (2002) 2 N.W.L.R. (pt.751) 474 at 507. He urged the court to grant this application.

In her reply, the learned counsel for the Respondent, Ibiyemi Fashina (Miss) relying on all the paragraphs of the counter affidavit already mentioned, submitted that amendment is not made as a matter of course but on presentation of enough materials upon which the court can exercise that discretion, relying on the case of Bamaiyi v. Bamaiyi (2005) 15 N.W.L.R. (pt.948) 334 at 360 para F. That the Applicant has failed to refer to the areas or issues he intends to amend. Secondly, that the amendment sought by the Applicant is made to overreach the Respondent referring to paragraph 7(1) of the affidavit in support of the application wherein the Applicant states that it was after receiving Appellant’s Reply Brief that they discovered that they did not properly address their issues.

Learned counsel further submitted that only issues relating to grounds of appeal in the Notice of Appeal can be addressed in the brief. That since the Applicant by his admission in the supporting affidavit argued issues unrelated to the grounds of appeal, the said brief is incompetent and cannot be amended as you cannot put something on nothing. She cited and relied on these cases: Bob-Manuel v. Briggs (1995) 7 N.W.L.R. (pt.409) 537 at 556 paras G-D; Kode v. Yusuf (2001) 4 N.W.L.R. (pt.703) 392 at 415 para A. She urged the court to refuse this application.

In a brief rejoinder, the learned counsel for the Applicant submitted that the Appellant/Respondent will not be overreached because he has an opportunity to file a reply brief.