Chief Chidi Imegwu Jp & Ors V. Risonpalm Ltd. & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISTIFANUS THOMAS J.C.A (Delivering the Leading Judgment)

The interlocutory appeal is against the ruling of the High Court of Rivers state, Port Harcourt Division, delivered on 13th Feb, 1996, by M. R. E. Manuel, (Judge) in which he dismissed the appellant’s application for amendment of their writ of summons and statement of claim with a plan survey on the land in dispute.

Dissatisfied with the ruling, the appellants filed a Notice of Appeal on 24th April, 1996 containing 2 grounds of appeal.

The concise facts of this interlocutory appeal is that, at the lower court, the appellants in a representative capacity for themselves and as representing the entire citizens of Umuagbai Community in Ndoki, Oyingbo Local Government Area of Rivers State, Commenced the action by a writ of summons filed on 2nd June, 1992. The writ was against the respondent, namely Risonpalm Ltd. The appellants as plaintiffs filed their statement of claim.

By a motion on notice, the second sets of defendants, but now 2nd sets of respondents sought the leave of trial court, for an order joining them as the 2nd set of defendants for themselves and as the representatives again, of the entire Umuagbai Community Ndoki (except the plaintiffs) in Oyingbo Local Government Area of Rivers State, and also for leave of court for the 2nd set of defendants, to defend the suit. The above stated application of the 2nd set of defendants was granted at the tower court on the 22nd Sept, 1992.

Still at the lower court, the plaintiffs, now appellants without express leave of the court proceeded and filed their (proposed) amended writ of summons and the statement of claim with the proposed new plan as their reply to the 2nd set of defendant’s counter affidavit. The 2nd set of defendants urged by motion, praying the trial court, to set aside the appellant’s proposed amendments on grounds of irregularity of serving court processes. In a considered ruling, the lower court set aside the plaintiffs’ service of court processes without consent of the court. It was after all this that the plaintiff’s application for leave to amend the writ and statement of claim and the plan was considered by the trial judge and, dismissed the application, hence the appeal.

Based on the two grounds of appeal, the appellants have raised two issues for determination and they read as follows:

1. Whether the lower court was right when it refused the amendment of the capacity in which the plaintiffs/appellants brought this action and other consequential amendment for the purposes of determining the real questions in controversy between the parties.
2. Whether the lower court was right in relying on extraneous and irrelevant matters in coming to its decision to refuse the amendments sought, and whether its conclusion did not prejudge the substantive case before it.

The entire respondent’s brief of argument was fifed and granted on 11th Feb, 2001 by this appellate court.

The respondent’s brief of argument containing two issues for determination is more concise and I will follow same in determining the appeal. The respondents’ two issues are as follows:-

3.01. Whether the rower court’s refusal of the appellant’s amendment of the capacity in which they sought the action was justified in law.

3.02. Whether the rower court relied on extraneous matters in refusing the amendment sought by the appellants and in so doing prejudices the substantive case before it.

In my considered opinion, issues will be arrived at in determining the appeal. In this appeal there is no need for determination of separate issues because the two are interrelated.

The main contention of the appellants is that, the lower court refused to allow them amendment of their writ and statement of claim. That in the first claim, their capacity in the original was for themselves and the entire community of Umuagbai whiles the first respondent was a limited liability company. That the 2nd set of respondents also claimed that their capacity to defend the appellants was based on their behalf and also on behalf of the same entire Umuagbai Community. The appellant is of the view that the respondents in the instant matter would not have suffered no hardship or prejudice as pleadings had not even been completed nor exchanged on all sides.

In my opinion, the appellants have not shown the truth, because they had filed their statement of claim. Not only that the statement of claim is clear at page 3-5 of the record which was filed on 21st July, 1992. Paragraphs 182 of the appellants’ statement of claim is as follows:-