Ahmadu Musa & Anor V. Anthony Ehidiamhen (1994)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A. 

By a writ of summons issued in the High Court of Borno State, Konduga Judicial Division holden in Maiduguri the plaintiff sued the defendants claiming for a declaration that the defendants are jointly and severally liable to the plaintiff for all damages suffered by the plaintiff as a result of an accident involving the plaintiff’s Peugeot Saloon car with registration No. BD 8118 JA and the second defendant’s MAN Diesel lorry with registration No. PL 218 J driven by the first defendant for and on behalf of the second defendant which said accident occurred on the 14th December 1987.

Pleadings were ordered, filed and exchanged. By paragraph 17 of the statement of claim the plaintiff claimed as follows:-

“(a) N61,000.00 (Sixty One Thousand Naira) being the pre-accident value of the plaintiff’s Peugeot 505 SR Saloon car with registration No. BD 8118 JA.

(b) As special damages the sum of N1,314,600.00 (One million three hundred and fourteen thousand, six hundred Naira) being the value of one Haemodialysis machinery; one sonicaid ultra sound machine, one passport, children’s clothes and drugs completely destroyed by fire as a result of the accident.

(c) Interest at the court rate of 10% per annum on the above total sum of N1,375,600.00 (One million three hundred and seventy five thousand six hundred Naira) with effect from the date of judgment until liquidation.”

The defendants filed a joint statement of defence. At the trial of the action evidence was led on both sides and after addresses by learned counsel for the parties, the learned trial judge in a reserved judgment found for the plaintiff. In her judgment the trial judge held as follows:-

“On the totality of the matter before the court it is my view that the plaintiff has proved his case as per his paragraph 17 of his statement of claim dated 16th August 1989 and that which should succeed.”

She then awarded the plaintiff the total sum of N1, 375,000.00 (One million three hundred and seventy thousand Naira) plus 10% interest with effect from the date of judgment until liquidation.

The defendants, who I shall henceforth refer to as the appellants, are dissatisfied with this decision. They appealed to this court upon twelve grounds of appeal. Pursuant to the Rules of this court, learned counsel for both appellants and the respondent filed and exchanged their respective briefs of argument. The appellants in their brief formulated issues for determination to wit:-

“(1) Whether having regard to the contents of Exhibit ‘F’ and the oral evidence adduced at the trial, G.B. Ollivant is a part of UAC (Nigeria) Ltd and not a separate entity.

(2) Whether the learned trial judge correctly applied the principles of estoppel and Section 148(d) of the Evidence Act to the evidence before the court.

(3) Whether the refusal of the application by the appellants to amend paragraphs 5 and 16 of the statement of defence as shown in paragraphs 5(a) and 16(a) of the amended statement of defence is justified and did not lead to a miscarriage of justice.

(4) Whether the evaluation of the evidence about the position of the plaintiff’s car at the time of the accident and the goods in the car is supportable and sustainable.”

The respondent in his brief identified three issues for determination. Considering the grounds of appeal filed, it is my opinion that the issues formulated by the appellants are more apt to the determination of this appeal. I will therefore adopt the issues formulated by the appellants for the purpose of this judgment. I will however, state the facts that gave rise to these proceedings albeit briefly.

The facts are that the respondent a businessman resident in Uromi left Benin in his Peugeot 505 Saloon car with registration No. BD 81 18 JA for Maiduguri on 13th December 1987. He was travelling in company of one Mr. Pat Asun an official of Pap Services Company Ltd., a company with whom the respondent used to do business with. They spent the night at Jos and proceeded to Maiduguri the following day i.e. 14th December 1987. Upon reaching Limanti, a village fifty kilometres from Maiduguri, they decided to answer the call of nature. It was about 7.30 p.m. The respondent then parked the car off the highway, and put on the parking lights. They entered the bush to easy themselves. It was at that time the 1st appellant driving a MAN Diesel lorry with registration No. PL 218 J crashed into the respondent’s stationary car from the rear. As a result of the impact caused by the crash, the two vehicles caught fire and the respondent’s car was destroyed. The respondent claimed that at the time of the accident, he was carrying in his car one Heamodialysis kidney machine, one Sonicaid ultra-sound machine, some quantity of drugs and children’s wear altogether valued at N1,314,600.00. All these goods together with other documents were destroyed.

The appellants on the other hand alleged that the respondent parked his car negligently in the middle of the road without any parking light. They also alleged that the respondent, at the time of the accident, was not carrying the goods he claimed to be carrying. The 2nd appellant also claimed that it was nota proper party to the case, since it has nothing to do with the 1st appellant.

At the hearing of the appeal, Mr. Ayodele SAN learned counsel for the appellants adopted the arguments contained in the appellant brief and also proferred oral evidence to expatiate issues raised in the said brief. The learned Senior Advocate submitted that having regard to Exh. F. and the oral evidence adduced by the parties it has not been proved that the vehicle with registration No. PL 218 J belonged to UAC (Nigeria) Ltd. He said Exh. F which was heavily relied upon by the Branch Manager of G.B.O. and was signed on behalf of G.B. Ollivant a Division of UAC (Nigeria) Ltd. He further submitted that since the 1st appellant and D.W. 3 testified that they worked for GBO and not UAC, the lower court was wrong to find UAC liable. He submitted that it was the duty of the respondent to establish that the vehicle which allegedly caused the accident belonged to UAC and referred to Onuigbo v. Nwekeson (1993) 3 NWLR (Pt. 283) 533. The respondent must prove the owner of the vehicle: COP. V. Oguntayo (1993) 6 NWLR (Pt. 299) 259. He further submitted that the finding of the trial judge was based on assumption which was not supported by the evidence. He said G.B-O. was not the same person as U.A.C. On the issue of estoppel and S.148(d) of the Evidence Act, the learned Senior Advocate submitted that the findings of the trial judge was a subtle way of shifting onus of proof to the other side. In support he cited the case of Okunzua v. Amosu (1992) 6 NWLR (248) 416. It was the duty of the respondent to prove that the 2nd appellant was employed by the U.A.C. He then submitted that the trial judge erred by applying estoppel on UAC since the representation made in Exh. F ex facie was not made by UAC. There was nothing in Exh. F or oral evidence that the UAC knew anything about the representation. On the refusal of the trial judge to allow the appellants amend their statement of defence, the learned SAN submitted that the judge exercised her discretion wrongly since the appellants did not take any undue advantage.

When called upon to argue the appeal on behalf of the respondent. Mr. Oche asked for adjournment because counsel for the appellants have cited cases which were not listed in the appellant’s brief. This application was refused. The cases refer to the issues already raised in the brief and no new issue was raised. Mr. Oche then adopted the respondent’s brief and further submitted that G.B-O. being a division of the UAC was not a legal person and that the legal person was UAC (Nigeria) Ltd. With regard to S.148(d) he submitted that since the documents in question existed and were not pleaded, it was the appellant who brought their case within the provision of S.148(d). He further submitted that the onus rightly shifted to the appellants.

I will consider the first and second issues together because they all relate to the liability of the 1st appellant. The respondent as plaintiff in his statement of claim averred:-

“(2) The first defendant is Alhaji Ahmadu Musa whose address as known to the plaintiff is No.3 Kirikasama Road. Maiduguri within jurisdiction. The second defendant on the other hand is United African Company of Nigeria Ltd., otherwise known as UAC of (Nig.) Ltd; a Limited liability company incorporated in Nigeria engaged in commerce and industry operating all over Nigeria through its various divisions such as A.J. Seward and G. B. Ollivant (otherwise known as G. B. O). The second defendant’s office within the jurisdiction is situation at No.3 Kirikasema Road Maiduguri.

(3) By a letter dated 4th November 1988 addressed to the plaintiff’s Solicitors by the second defendant Maiduguri Divisional Branch Manager acting in the course of his official duties for and on behalf of the second defendant which is hereby pleaded: it was confirmed inter alia that ” …the vehicle involved in the accident together with the goods being carried therein belong to our company and the said Alhaji Ahmadu Musa was at the time of the accident carrying the goods to our Maiduguri branch,” by virtue of the above the plaintiff avers that at all material times to this action; the second defendant as owners of lorry with registration No. PL 218 J through one of its divisions namely G. B. Ollivant (otherwise known as G. B. O.) engaged the first defendant as its servant, agent or permitted driver to drive the said vehicle to Maiduguri on the said 14th December 1987.”

These averments were stoutly denied in the appellant’s statement of defence.

The appellants in their amended statement of defence averred:-

“(2) The defendants deny the ownership of MAN Diesel lorry registration No. PL 218 J referred to in paragraph I of the statement of claim and the defendants aver that that other facts (sic) within the knowledge of the plaintiff.

(3) They deny paragraph 2 of the statement of claim and aver that United African Company of Nigeria Limited is a separate entity and his nothing to do with A. J. Seward and G. B. O., as these are not part of UAC of (Nigeria) Limited. The defendants aver that it has no branch office in Maiduguri. In further reply to paragraph 2 of the statement of claim, the defendants aver that G. B. Ollivant does not exist since its voluntary winding up and published in official Gazette No. 34 Vol. 61 of 27th June 1974 and does not legally exist in its corporate personality and by reason of which G.B.O. cannot be sued or sue except through the liquidator appointed to run its affairs. The second defendant avers that the first defendant is not known to the second defendant nor is he an agent to the second defendant at any time material to this action.

(4) The defendants in reply to paragraph 3 of the statement of claim aver that the alleged branch manager of G.B.O. Maiduguri is not an agent or servant of the second defendant but to the liquidator appointed to run the affairs of G.B.O., the second defendant is not answerable to the official acts of the said G.B.O. Manager, who is not in any way connected with second defendant.”

Both the appellants and the respondent adduced evidence in support of their respective averments. In her judgement, the learned trial judge accepted the evidence adduced by the respondent and held that toe 2nd defendant was a proper party to the suit. This is what she said at page 132 of the record:-

“In other words, GBO is a part of UAC which is the whole, consequently therefore, a part or division cannot be a company on its own and cannot therefore exist on its own as an entity. In the case of Fawehinmi v. NBA supra, the position of the law is that only persons who have legal existence can sue or be sued.”

She continued at page 133:-

“Both D.W. 1 and D.W. 3 in their evidence to prove that G. B. Ollivant is a Company on its own testified that they are employees of the said Company have letters of employments and also that the vehicle No. PL 218 J driven by 1st defendant on the day in question had particulars. The said letters of employment and vehicle particulars were not produced before the court. In my view and in applying Section 148(d) of the Evidence Act the production of such would be detrimental to the defence case, with the existence of Exhibits “F”, “G” and “G1″ whereby the 2nd defendant is held out as a main company to which GBO is a division, they are estopped from denying that the 1st defendant is neither their employer nor is the vehicle their own and also that GBO is their division.”

In view of the above conclusions reached by the learned trial judge, she held that the 2nd defendant UAC (Nig.) Ltd.,was a proper party and that on the provision of the Evidence Act and the authority of Egbe v. Adefarasin ( 1987) 1 NWLR (Pt. 47) 1 they were estopped from denying such.

She then concluded at page 135 of the record thus:-

“From the authorities of Ogunaike v. Ojeremi (supra) and in its application to the case at hand, by exhibits “F.” “G” and ‘G1’ conclusive proof of vicarious liability as rightly argued by Mr. Ngilari, has been made out in my view against the 2nd defendant on the basis of their own admission. Contrary to the arguments by the defence counsel and also the evidence of D.W. 1 and D.W. 3 the second defendant who are the employers of the 2nd defendant and also the owners of vehicle MAN Diesel lorry No. PL 218 J conveying goods at the material time to their Maiduguri office, are vicariously liable for the act and tort of its employee, in this case the 1st defendant.

It could be seen that the trial judge based her decision on a very sound logic that a division being part of a whole, cannot have a separate existence independent of the whole. The decision is also predicated on Exh. F. Exh. F is the reply by D.W. 3 to the letter written to GBO by respondent’s Solicitor. Exh. F was written on a paper with GBO’s logo on it. It is also headed:- “G. B. Ollivant Division of UAC of (Nigeria) Limited”. D.W. 3 concluded Exh. F. thus:-

“Yours faithfully.

For: G.B. Ollivant

Division of UAC of Nig. Ltd.”

It is elementary that only a legal person can sue or be sued. An association devoid of legal personality can neither sue nor be sued. If G.B.O., is not a legal person and it is a division of UAC, it follows that UAC would be liable for the acts of GBO. I will now consider the evidence to determine whether or not GBO is a legal person.

At the court below, the appellants tendered Exh. L which is the Federal Republic of Nigeria Official Gazette No. 34, Volume 61 and dated 27th June 1974.

At page 1050 Public Notice No. 93 was published. Public Notice No. 93 states:-

“G. B. Ollivant (NIGERIA) LIMITED

MEMBERS VOLUNTARY WINDING UP

NOTICE OF APPOINTMENT OF

LIQUIDATOR.

Pursuant to Section 285.

Name of Company:- G.B. Ollivant

(NIGERIA) LIMITED.

Nature of Business:- Manufacturing

Trading and General Merchandising.

Address of Registered Office:- NIGER

HOUSE, 1/5 Odunlami Street, Lagos.

Liquidator’s Name and Address:- David

Maurice Pinder, Niger House 1/5

Odunlami Street, Lagos.

Date of Appointment:- 27th May 1974.

By whom appointed:- Members in general meeting.”

It was signed by D. M. Pinder as Liquidator.

Public Notice No. 93 is a conclusive proof that G. B. Ollivant (Nigeria) Ltd., was an incorporate company because only an incorporated company can be wound up. It is also a conclusive proof that it is under liquidation. I will consider the effect of liquidation of a company later in this judgment. By Public Notice No. 93 contained in Exhibit ‘L’ we have seen that G. B. Ollivant (Nigeria) Ltd., was an incorporated company, it therefore follows that it was a legal person which could sue or be sued. The remaining question is whether or not G. B. Ollivant (Nigeria) Ltd., is one and the same GBO in this appeal. D.W.1 under cross-examination stated:-

“Formerly I was an employee of GBO. At the time of the accident I was conveying goods to Maiduguri. I was bringing the goods to D. M. Pinder a Liquidator to GBO.”

Also D.W. 3, the Branch Manager of GBO Maiduguri stated in his examination in chief that:-

“On the 24th June 1974 the G. B. Ollivant Company was wound up.

Mr. D. M. Pinder controls the management of G. B. Ollivant.”

In Exh. ‘L’ it was stated that Mr. D. M. Pinder has been appointed as Liquidator of G. B. Ollivant (Nigeria) Ltd. D.W. I and D.W. 3 testified that Mr. D. M. Pinder was the liquidator of G.B.O., it could be seen that G. B. Ollivant (Nigeria) Ltd., is one and the same as the GBO we are dealing with. In view of this, I hold that GBO a division of UAC of (Nigeria) Ltd., which is now under voluntary liquidation was an incorporated company and as such has a legal personality of its own distinct from its members. See Solomon v. Solomon & Co. (1897) AC 22. In my opinion when GBO, an incorporated company, is described as a division of the UAC it could only mean that GBO is either a wholly owned subsidiary of the UAC or that UAC has a majority share holding in the company. Even if GBO is a wholly owned subsidiary of the UAC, it still retains its legal personality which is quite distinct, separate and independent of the UAC. A holding company, in this case UAC, cannot be held responsible for the action of its subsidiaries. In Ebbw Vale UDC v. South Wales Traffic Area Licensing Authority (1951) 2 KB 366 Cohen L. J. stated the position succinctly at page 373-374:-

” …a subsidiary company is not an agent of the parent company, but is an entirely different entity. Its acts are not the acts of the parent company and the parent company is not responsible for its acts or default. In the absence of special provisions in some contract between the parties.”

It follows then, the acts of GBO are not acts of UAC and UAC is not responsible for the acts of GBO. GBO also is not the agent of UAC. In the light of the foregoing. Exh. F in which D.W. 3 confirmed that “the vehicle involved in the accident together with the goods being carried therein belong to our company and the said Alhaji Ahmadu Musa was at the time of the accident carrying the goods to our Maiduguri Branch.”

Could only mean that the vehicle and the goods carried therein belonged to GBO and that Alhaji Ahmadu Musa was carrying the goods to GBO’s Maiduguri Branch. It cannot mean that the vehicle belonged to UAC nor that Alhaji Ahmadu Musa was a staff of UAC.

Even though the company was voluntarily wound up or liquidated (the terms are interchangeable) it did not cease to exist completely. The company will finally die after the process of liquidation is completed and the liquidator has submitted his final report, then to the Registrar of Companies and now to the Corporate Affairs Commission. After three months of the receipt of the liquidators final report and accounts, the company shall be deemed to be dissolved. It is only when a company is dissolved that it is dead. This is in contrast to what obtains with a natural person. A person must die before an administrator is appointed to administer his estate whereas, with a company a liquidator must be appointed before it dies.

In Gower’s “Principles of Modern Company Law”, Fourth Edition, the learned authors clearly stated the position at page 719:-

“The liquidation or winding up (the two terms are used indiscriminately) of a company is a process whereby its life is ended and its property administered for the benefit of its creditors and members.

The closest analogy to what occurs is afforded by the administration of a deceased’s estate; an administrator called a liquidator, is appointed and he takes control of the company, collects its assets, pay its debts and finally distributes any surplus among the members in accordance with their rights. But the process differs from the administration of a deceased’s estate in that the estate being administered is that of a person still living. Only at the end of the winding up will the company be dissolved; administration precedes death, not vice verse.”

The property of a company under liquidation does not vest in the liquidator.

The liquidator only assumes the function of the directors and is subject to the duty to deal with its assets under the Statutory Scheme laid down in the Companies and Allied Matters Decree, 1990.

I have considered the effect of liquidation in order to show that a company under liquidation, voluntary or compulsory, is still a living legal person until it is dissolved. In the present appeal, when the suit was instituted, GBO was still under liquidation. It has not been dissolved. It still retained its legal personality which was separate and distinct from that of the UAC. In the circumstances, I hold that UAC is not a proper party to these proceedings and it is hereby struck off. I now come to the third issue i.e. whether the refusal of the learned trial judge to allow the appellants to amend their statement of defence did not lead to a miscarriage of justice. It was submitted in the appellant’s brief that the amendment sought in para. 16(a) should have been granted as a matter of course because the letter pleaded in the proposed amendment was already in evidence. It was a letter whose reply has already been admitted as Exh. “F’. It was also submitted since the letter was written by the respondent himself and he gave evidence about the said, letter, it would not take him by surprise, neither over-reach or embarrass him. With regards to the proposed paragraph 5(a) it was submitted that it dealt with the existence or non-existence of Pap Services (Nigeria) Ltd., the Company from which the respondent said he bought the goods destroyed in his vehicle. Since the respondent and P.WA have testified to the existence of the company, it would not be introducing a new issue for the appellants to show that the company did not exist.

Moreover, it was submitted, since issues were joined on the respondent’s assertion about the company, the proposed amendment was merely descending into specifics.

The proposed amendment did not introduce new facts or new issues. It was further submitted that the trial judge ought to have followed the principles laid down by the Supreme Court in the following cases:- Oguntimehin v. Gubere (1964) 1 All NLR 176 and Ojah v. Ogboni (1976)4 S.C. 69. It was submitted that the trial judge ought to have exercised her discretion in order to do what justice and fair play demanded in the circumstance as stated by the Supreme Court in Adetutu v. Aderohunmu (1984) SCNLR 515 at 523. It was contended that had the trial judge looked into the specifics of the amendment sought, it would have been clear to her that it was only just and fair to allow the appellants to amend their pleadings to enable them adduce evidence which would bring about a just and full determination of the merits of the matters in issue between the parties. It was also submitted that failure to allow the appellants to amend their pleadings led to a miscarriage of justice in that the appellants have been prevented from presenting their defence fully to enable the trial court determine the case on its merits.

It was submitted in the respondent’s brief that granting an amendment is not a matter of course, that the court in exercising its discretion as to whether or not to grant an amendment must have regard to the substance and whether or not the amendments was for determining the real issues in controversy between the parties. The court must look at the materiality of the proposed amendment before making an order. It was submitted that whether Pap Services (Nigeria) Ltd., was not a company known to the Company Registry was not a relevant issue before the court. The case for the respondent was that he bought the goods destroyed in the fire as a result of the accident, in Benin City. The appellants in their defence denied that there were any medical equipment in the respondent’s car when the car caught fire. It was submitted that the issue for determination was whether or not there were such equipments during the accident. It was stated that the respondent testified that he physically went to the premises of Pap Services (Nigeria) Ltd., where he bought the goods. This evidence was corroborated by PW 4 an official of Pap Services. Receipts of the purchases were admitted in evidence without objection. It was then contended that it was not usually that certain person carry on business under the cover of a company which on the face of it appears to be a registered company whereas in actual fact the said company may not be a registered company. It was submitted that such practice attracts penal sanction under S.389 of the Companies Decree 1968 and that the provision could only be invoked against the company and not the customers. It was then submitted that the appellant by the proposed amendment were for the first time raising the issue of illegality at too late a stage which could not be permitted. In support of this submission the following cases were cited:- Obinyiriuka v. Aliche (1991) 4 NWLR (Pt. 183) 87 at 89: Abimbola v. Dominion Flow: Mills Ltd. (1963) All NLR 71; and Adetutu v. Aderohunmu (1984) 1 SCNLR 515 at 523.

It was contended that introducing the issue of illegality would require the respondent to amend his statement of claim, recall his witnesses, move the court to Benin City which would entail delay and prolong the case. This would not only overreach but prejudiced the plaintiff. The cases of Nwafornso v. Taibu (1992) 1NWLR (Pt. 219) 619 at 628 and Willoughby v. J.M.B. Ltd. (1987) 1 NWLR (Pt. 48) 105 at 119 were referred to. It was submitted that the trial judge was right in refusing the amendment if for nothing at least for the fact that the appellants were indolent. J.B.J. Bros. v. Daewoo Ind. Co. Ltd. (1986) 1 NWLR (Pt.16) 352. With regards to the amendment sought in para 16(a), it was submitted that the amendment was not necessary because it was covered in paragraph 16. The proposed amendment was useless and immaterial because the appellants did not show that the letter they sought to plead would have altered their defence. The following authorities were relied upon: Monier Construction Co. Ltd. v. Azubike (1990) 3 NWLR (Pt. 136) 74 at 86 and Adetutu v. Aderohunmu (supra). It was also submitted that Grounds 10 and 11 which are challenging the exercise of the lower court’s discretion do not raise any substantial issues which affects the justice of the case: University of Lagos v. Olaniyan (1985) 1 NWLR (Pt.1) 156; (1985) All NLR 122 at 128: Unegbu v. Medland Enterprises Ltd. (1990) 6 NWLR (Pt. 156) 306 at 316 and Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130.

At the lower court the respondent closed his case on 20/2/90. On 24/4/90, before opening their defence, the appellants sought to move a motion on notice they filed that day to amend their statement of defence. Counsel for the respondent objected to moving the motion that day because he has just been served with same but agreed that the motion could be moved later. In the said motion, the appellants were asking for the following reliefs:-

“(1) An order granting leave to the defendants/applicants to amend their statement of defence, by adding paragraphs 5(a), 16(a) and 21(a) as in the proposed amended statement of defence.

(2) An order to delete paragraph 23 of the statement of defence and substitute same with another paragraph 23 as in proposed amended statement of defence.

(3) An order deeming the proposed amended statement of defence as duly filed and served as the necessary fees had already been paid.

(4) And for any further order or orders as this Honourable Court may deem fit to make in the circumstances of this case.”

The motion was supported by a 7 paragraphs affidavit. The respondent filed a 10 paragraphs counter-affidavit in opposition. At the hearing of the motion counsel for the respondent objected to the proposed amendment partially. He objected to the addition of paragraphs 5(a) and 16(a) but did not object to the addition of paragraph 21 (a) nor to the substitution of paragraph 23. In a reserved ruling the learned trial judge considered the submission of both counsel and the affidavits and after discussing extensively the principles guiding the court whether or not to grant an amendment, held as follows:-

“From all indications and circumstances of the application under reference particularly having regard to the facts of the case issues joined between parties as against the amendment sought for in the light of the authorities (supra). I hold the view that as rightly argued by learned Mr. Ngilari the exercise of discretion in favour of this application will be against all principles of the cases cited because it will not only be embarrassing to the plaintiff but also inequitable, overreach the plaintiff as well as to take him by surprise, with the fault being that of the defendants for failure to make the document available despite the fact that it was on the plaintiff whom I hold that cannot be compensated for by costs. In other words, it would not be appropriate at this stage to allow the defendant introduce the said proposed paragraphs 5(a) and 16(a) as the same would amount to an introduction of new facts giving rise to injustice being occasioned to the plaintiff who cannot he adequately compensated for by costs, Accordingly, while the defendants is allowed leave in respect of paragraphs 2(a) and 23 leave for amendment in respect of paragraphs 5(a) and 16(a) as sought for is refused. Application allowed in part.

The defendants are therefore allowed fifteen days within which to file their amended statement of defence.”

Where an amendment is relevant to the just decision of a cause and that substantial justice can be secured by an amendment of pleadings and such an amendment would enable a court to completely and effectually determine the issues before the court, such an amendment should be allowed, In Clarapede Commercial Union Association 32 W.R. 263 Brett M. R. said:-

“However negligent or careless may have been the first omission, and however late the proposed amendment the amendment should be allowed if it can be made without injustice to other side. There is no injustice if the other side can be compensated by costs.”

This Statement was adopted by the Supreme Court in the case of Bata Nigeria (Sales) Ltd v. Brigadia Martin Adamu (1976) 6 S.C. 135 at 141-142. In Adetutu v. Aderohunmu (1984) SCNLR 515. Bello J.S.C. (as he then was) stated the principles that should guide a court in deciding whether or not to grant an amendment. At page 523 he said:-

“Generally an amendment of pleadings for the purpose of determining the real controversy between the parties ought to be allowed at any stage of the proceedings unless such an amendment will entail injustice or surprise or embarrassment to the other part or the applicant is acting mala fide or by his blunder the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise. In otherwords, the discretion ought to be exercised so as to do what justice and fair play may require in the particular case.”

It could be seen from the above that the overriding issue is justice and fair play. As long as injustice would not be done to the other side, no matter how indolent the applicant has been, the amendment should be allowed while the other side should he compensated by costs.

The learned trial judge refused the application on the grounds that:-

“…it will not only be embarrassing to the plaintiff but also inequitable, overreach the plaintiff as well as to take him by surprise … In other words it would not be appropriate at this stage to allow the defendant introduce the said proposed paragraphs 5(a) and 16(a) as the same would amount to an introduction of new facts giving rise to injustice being occasioned to the plaintiff who cannot be adequately compensated for by costs.”

To allow or refuse an application to amend his pleadings is the discretion of the lower court and an appeal court will not normally interfere with the exercise of such discretion as long as the court exercised the discretion judicially and judiciously. The Appeal Court will only interfere where the trial judge misapprehended the facts or failed to consider the correct principles or wrongly applied the principles to the facts of the case.

I will now consider the facts to determine whether or not the trial judge was right in refusing the appellants to amend their statement of defence. The respondent by paragraph 4 of his statement of claim averred that he purchased one Haemodialysis Kidney Machine, one Sonicaid Ultra-Sound Machine, at Benin from Pap Services Company Ltd. At the trial he gave evidence to that effect and tendered the receipt for the purchase. PW 4 an official of Pap Services also testified that the respondent bought the said machines from their Company. The appellants on the other hand by paragraph 5 of their statement of defence averred that paragraph 4 of the statement of claim was full of false statements that the respondent had no money to purchase such machines and that immediately after the accident, there were no such items in the respondent’s car. The 1st appellant at the trial gave evidence that, he looked into the respondent’s car before it caught fire and there was nothing in the car. D. W. 2 also gave evidence to that effect. Issues were clearly joined by the parties as to the existence of the equipments. The appellants sought to amend their defence by pleading a letter they received from the Companies Registry in respect of the existence or otherwise of Pap Services Co. Ltd. This amendment sought, is said to overreach the respondent, take him by surprise, introduce new issues and would give rise to injustice to the respondent.

It is my considered opinion that the amendment sought would not take the respondent by surprise. The respondent, in his pleadings and oral testimony, said he personally bought the equipments from Pap Services Co. Ltd., and called a witness who testified that the respondent bought the equipments from Pap Services Co. Ltd. The appellants denied all these and averred that the respondent’s pleading was false and that there were no equipments in the car at the time of the accident. In my view, where a person claims that he was carrying some goods and that he bought the goods from X Ltd., and this was denied alleging that the person who said he was carrying the goods has no money to purchase such goods, an attempt by the person denying the existence of the goods, to show that X Ltd from whom the goods were said to be purchased does not exist, will not be introducing new issues. The amendment will not overreach, nor occasion miscarriage of justice. Indeed it is the refusal to allow the amendment that would occasion miscarriage of justice. Since issues have been joined parties should be afforded opportunity to present their cases. To allow the amendment will not be introducing the issue of illegality. Pap Services Co. Ltd., is not a party to the suit, but where a party alleged that he bought some goods from Pap Services and the other party tried to prove that Pap Services does not even exist, will not be introducing illegality. The learned trial judge, in my opinion, is wrong to refuse the amendment sought.

With regards to the second amendment sought i.e. paragraph 16(a) – it was sought to plead a letter written on behalf of the respondent himself to the appellants.

In paragraph 3 of the respondent’s statement of claim he averred that:-

“By a letter dated 14th November 1988 addressed to the plaintiff’s Solicitors by the second defendant’s Maiduguri Divisional Branch Manager acting in the course of his official duties for and on behalf of the second defendant which is hereby pleaded; it was confirmed inter alia that…”

In his oral testimony the respondent said:-

“In October 1988 I instructed my Solicitors to write to the branch manager of the 2nd defendant to get some information for my Insurance Company. My Solicitors wrote. I went to the branch office personally to collect the reply on 4th November 1988.”

The reply collected by the respondent was tendered and admitted into evidence as Exh. F. The amendment sought was to plead the letter which the respondent himself instructed his Solicitor to write to the 2nd appellant, the reply to which was admitted into evidence. Could a letter written on the instructions of the respondent take the respondent by surprise? He gave evidence to the existence of the letter himself. Could it be said that the letter would embarrass or overreach him?

Would it occasion miscarriage of justice to the respondent if the appellants were allowed to plead the said letter? My answers to the above questions are in the negative. At worst, it could be said that the appellants were indolent. But indolence without more cannot be a ground for refusing an application to amend pleadings.

It is therefore my opinion that the learned trial judge was wrong in refusing the appellants the opportunity to plead the respondent’s letter.

The learned trial judge should have allowed the amendment, which is relevant to determining the real questions in controversy between the parties. As stated in The Alert (1985) 72 L.T. 124:-

“Where you can see your way, without risk of failure of justice, to allow the case to be decided on its full merits, every court of just ice is bound to do so. I see no reason why this case should not be heard and the real merits of it adjudicated upon.”

I will therefore answer the third issue in the positive. The appellants were not allowed to fully pursue their case which is tantamount to a denial of fair hearing occasioning miscarriage of justice.

In the circumstance, the appeal succeeds. The 2nd appellant is struck out.

The judgment of the lower court is set aside. The case is remitted to the lower court for rehearing. The parties are at liberty to amend their pleadings if they so wish. I make no order as to costs.

Other Citations: (1994)LCN/0193(CA)