Chief Reuben. O. Ozigbo V. The Registered Trustees of Ezi-oganiru Social Club of Nigeria (2008)

LawGlobal-Hub Lead Judgment Report

DALHATU ADAMU, J.C.A.

This appeal is against the ruling of the High Court of Lagos State, Ikeja Judicial Division (Per K.O. Alogba J) delivered on 22nd day of December, 2004 in suit No. ID/319/1998. In the said ruling the learned trial judge refused to grant the appellants application (dated 10/3/04) seeking the following reliefs: –

“(1) Leave of this Honourable Court to amend the Statement of Defence dated 8th April, 1998.

(2) An order of this Han. Court deeming the Amended Statement of Defence and counter claim dated 24th February, 2004 as having been properly filed and served on the plaintiff /respondent herein.

(3) And for such further order or other orders as this Honourable Court may deem fit to make in the circumstances.

Being aggrieved by the trial Courts refusal to grant his above reliefs and the resultant dismissal of his application he appellant filed his present interlocutory appeal against its ruling in this Court. In his notice of Appeal dated 4/1/05, the appellant filed two (2) grounds of appeal (with their particulars). Out of his two grounds of appeal, the appellant in his brief of argument dated and filed in this Court (on 5/4/07) initially formulated three (3) issues for determination, which are not shown to be related to the grounds. However at the hearing of the appeal the appellant in his attempt to relate the issues to the grounds informed the Court of his abandonment or withdrawal of his 3rd and last issue for determination which was accordingly struck out by this Court on 14/4/08.

The surviving two issues of the appellant after the striking out of the 3rd issue are as follows: –

” A. whether having regard to the mandatory provision of order 19 rule 9 of the High Court of Lagos State (Civil Procedure) Rules 2004, the learned trial judge in the Court below denied the Defendant/appellant his right to fair hearing when he refused to grant the Defendant/Appellant leave to amend his statement of Defence and incorporate his counter-claim.

B. Whether it was proper for the learned trial judge in his ruling dated 22nd December, 2004 to make pronouncements on substantive issues before the Court below, based on the Defendant/Appellants interlocutory Application, amounting to prejudgment on substantive issues yet to be tried by the Court below.”

As stated above, the learned counsel for the appellant related his above reproduced two (2) surviving issues respectively to his two grounds of appeal. Thus issue A is said to be related to ground A while issue B is related to ground B of the notice of Appeal. It is pertinent also to observe at this stage that the learned Counsel for the appellant had applied to this Court before the hearing of the appeal for the appeal to be heard on the appellants brief alone due to the respondents failure to file the respondents brief of argument. The application was heard and granted on 6/3/08.

Consequently the appeal was heard on the appellant’s brief alone and without any brief by the respondent who did not file any. Under the rule of brief writing as applicabie to this Court and the Supreme Court, the respondents failure to file a brief, will make this Court to deem him as admitting the truth of every thing stated in the appellants brief in so far as such is borne out by the records. In other words it is not automatic for this Court to deem what is stated by the appellant (in his brief) as the truth by the constructive admission of the respondent. The appellant still has the duty or obligation to succeed or fail on his said brief vis a vis the confirmation of the facts from the records -see JOHN HOLT VENTURES LTD VS. OPUTA (1996) 9 NWLR (PT. 470) 101; ONYEJEKWE VS. THE NIGERIAN POLICE COUNCIL (1996) 7 NWLR (PT. 463) 704; WAZIRI VS. WAZIRI (1998) 1 NWLR (PT.533) 322; UBA PLC VS. AJILEYE (1999) 13 NWLR (PT.653) 116; AND UNITY BANK PLC VS. BOUARI (2008) 7 NWLR (PT. 1086) 372 AT 403 AND 408;

I now proceed to consider the submissions of the appellant under issue I in the light of the above principle on brief writing.

The appellants appeal in the present case is hinged on the refusal of the learned trial judge to grant him leave to amend his statement of defence. The motion seeking the amendment was filed on 10/3/2004 while the writ and the endorsed statement of claim were originally filed on 10/2/98. Thus the motion for amendment was brought by the defendant/appellant about six years after the original statement of claim sought to be amended see that judgment at page 35 and 36 of the record.

Moreover, the reason or ground for the proposed amendment as stated by the appellant in paragraph 2 (a) of the affidavit in support was because some new facts had emerged which necessitated the amendment in order to include a counter-claim and assert his ownership of the land in dispute contrary to his earlier admissions (in his original statement of defence) that the respondent was the true owner of the land to whom he (as a tenant) was paying rent. It is also pertinent as observed by the learned trial judge (at page 36 of the records) that the appellant in his application for leave to amend did not exhibit the proposed amended statement of defence and counter – claim. This was however later condoned by the learned trial judge who relied on the copy attached to the supporting affidavit.