Chief Odira Ezezue V. Unudike Property Limited (2007)

LawGlobal-Hub Lead Judgment Report

ISTIFANUS THOMAS, J.C.A.

The interlocutory appeal is against the Ruling of Nosike [J] delivered on 6th May 2005 at Enugu High Court.

The main plank of the appellant can be ascertained from, the brief facts in respect of proceedings at the lower court. During the course of hearing the matter, the then plaintiff but, to be referred to as the respondent, had applied and was granted leave to amend his statement of claim. After the respondent had closed his case, the defendant, but now simply to be referred to as appellant, also applied for leave to a mend his statement of defence, which the lower court judge refused to grant, hence the appeal.

By leave of this Court, appellant’s amended briefs of argument was granted and deemed filed on 23/11/2006 in which he distilled sole issue that reads:

“Whether the trial judge exercised its discretion judicially in not allowing the amendments.”

In likewise, the respondent framed identical issue as follows:-

“Whether the trial court exercised its discretion judicially and judiciously in refusing the amendment.”

In my considered opinion, it is not in dispute that, the respondent had sought and was granted leave to amend his statement of claim. This grant was in compliance with the inherent discretion of the trial judge under Order 18 Rule 1 of Anambra State High Court Rules, 1988 applicable to Enugu State High Court. There is an adage that, what is good for the goose is also good for the gander. It is therefore not surprising that the appellant has challenged the ruling which denied him his right to further amend his amended statement of defence.

Order 18 Rule 1 Anambra State High Court Rules 1988 applicable to Enugu State High Court states:-

“The court may at any state of the proceedings, either of its own motion or on the application of either party, order any proceeding to be amended, whether the defect or error be that of the party applying to amend or not; and all such amendments as may be necessary or proper for the purpose of eliminating all amendments which may tend to prejudice, embarrass, or delay the fair trial of the suit, and for the purpose of determining in the existing suit the real questions or question in controversy between the parties, shall be so made.

Every such order shall be made upon such terms as to costs or otherwise as shall seem just.”

The above provisions have been forcefully supported by the Supreme Court and this Court which are to the effect that pleadings ought to be allowed to amend or even further amend, before or after completion of trial before delivery of judgment. See Okafor v. Ikeanyi (1979) 3 & 4 SC 99; Ewarami v. A.C.B. (1978) 4 SC 99; and S.P.D.C. v. Kwameh Ambah (1999) 3 NWLR (Pt-593) 1. In The S.P.D.C. v. Kwameh Ambah (supra) at page 10, the apex court granted an amendment which was sought to fall in line with the evidence already adduced.

In the instant matter at the lower court the respondent had through its witness PW1, at page 65 of the record, tendered Exhibit B, which contained the “Power of Attorney”. Admission of Exh. B was without objection by the appellant. I have read the words “Power of Attorney” which is contained at page 85 of the record. At page 75 of the record, respondent’s witness PW1 was under cross-examination and he said therein as follows:-

“… The deed of assignment in Exh. B is 23/5/83. I as the holder of Power of Attorney … Power of Attorney donated to me was for valuable consideration. The Ogui Nike Community gave to me only one Power of Attorney, which was duly registered. I see Exh. B, the Power of Attorney given to me was extended in its tenure registered as 98/98/906. I can not remember the dated of the Power of Attorney.”