Dr. Michael Asuen & Anor V. Lucky Omoregie (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Lead Ruling)

The Applicants are the Appellants before this court. In their application, the Applicants are seeking the following orders, which are predicated upon a sole ground:

1. An order granting leave to the Defendant/Appellant/Applicants to further amend paragraphs 2 and 3 of their Amended Joint Statement of Defence which can be found at pages 44 – 47 of the record in the manner formulated in the schedule attached to the affidavit in support of the motion and marked as exhibit A.
2. An order deeming the said schedule as being paragraphs 2 and 3 of the Amended Joint Statement of Defence and also forming part of the record of appeal.

AND for such further order or other orders as this Honourable Court may deem fit to make in the circumstances of this case.

GROUND UPON WHICH THIS APPLICATION IS MADE:

By virtue of Section 15 of the Court of Appeal Act, 2004 and Order 4 Rule 1 of the Court of Appeal

Rules, 2007, the Applicants can amend their Joint Statement of Defence in line with the evidence on record.

In support of the application is an affidavit of eighteen (18) paragraphs deposed to by Mr. Benjamin Ojumah, a legal practitioner in the law firm of the Applicants’ senior counsel. The relevant paragraphs of the affidavit are hereunder reproduced for easy reference as follows:

3. On the 31st day of May, 2001 the Plaintiff/Respondent filed at the Registry of the trial court his statement of claim dated 31/05/2001.

The statement of claim can be found at pages 3 – 5 of the record.

4. On the 18th of October 2001, the Defendants/Appellants/Applicants filed at the Registry of the trial court their joint statement of defence dated 18/06/2001 which can be found at pages 7 – 10 of the record.
5. In paragraph 2 of the said joint statement of defence dated 18/06/2001, the applicants admitted paragraphs 14 of the Plaintiff/Respondent’s statement of claim dated 31/05/2001.
6. After the Defendants/Appellants/Applicants filed their joint statement of defence referred to above, Plaintiff/Respondent thereafter further amended his statement of claim. The further amended statement of claim is dated 17/1/2006 it can be found at pages 38 – 40 of the record. The amendment altered the numbering of the Plaintiff/respondent’s earlier statement of claim; and this made the averments in the paragraphs different from the averment in the paragraphs of the earlier statement of claim. Paragraph 14 of the earlier statement of claim which the Applicant had earlier admitted changed and the averments in the current paragraph 14 of the amended statement of claim became different from the averments in paragraph 14 of the earlier statement of claim.
7. The defence Counsel to the Applicants amended the applicants’ Joint Statement of Defence. The Amended Joint Statement of Defence is dated 10/5/2006; and in that amendment, they inadvertently retained the admission in paragraph 2 of the said earlier Joint Statement of Defence dated 18/6/2001 wherein they admitted paragraph 14 of the respondent’s statement of claim dated 31/5/2001. The amended statement of defence can be found at pages 44 – 47 of the record.
8. The Applicants at the trial court led evidence in denial averment of the current paragraph 14 of the respondent’s amended statement of claim dated 17/1/2006.
9. When the learned trial Judge delivered his judgment on the 27th day of February, 2007 the applicants were shocked to discover from the judgment that they admitted paragraph 14 of the said Further Amended Statement of Claim in paragraph 2 of the said Amended Statement of Defence.
10. The applicants never intended to admit paragraph 14 of the respondents’ further amended statement of claim but the error which is that of the counsel arose because of their failure to take into congnizance the re-numbering of the respondent’s statement of claim in the further amended statement of claim. This assertion is in line with the Defendants/Appellants/Applicants’ evidence on record.
11. In order to put the record straight and in line with the evidence on record hence this application.
12. The applicant will not lead additional evidence in support of the amendment as same is already in evidence.
13. It is erroneous admission that the learned trial Judge based his judgment upon.
14. The issue as to whether there was an admission of the fact contained in paragraph 14 of the further amended statement of claim was never raised at the trial Court otherwise applicant would have amended the joint statement of defence before the learned trial Judge delivered his judgment. The learned trial Judge raised the issue “suo motu” without calling on Counsel to address him on same.
15. The amendment sought to be made is contained in the schedule attached herewith and marked as exhibit A.
16. That it is in the interest of justice to grant this application.
17. The Respondent will not be prejudiced.

Attached to the supporting affidavit is an exhibit marked “A”, which is the schedule of the proposed amendment.

In response to the counter-affidavit of the Respondent, the Applicants filed a further affidavit of five (5) paragraphs deposed to by the 2nd Applicant, Mr. Samuel Asuen. The relevant portions of the further affidavit are as follows:

1. That as the 2nd Appellant/Applicant in this suit I have the consent and authority of 1st Appellant/Applicant to depose to this affidavit.
2. That on the 22nd day of January 2008, I filed a motion before this Honourable Court to further amend paragraphs 2 and 3 of our joint amended statement of defence in this suit.
3. That my Counsel inadvertently faited to exhibit the amended joint statement of defence which we are now to amend. A certified true copy of the amended joint statement of defence dated 10th day of May, 2006 is hereby attached and marked as exhibit B.
4. That I attached herewith the proposed further amended joint statement of defence marked as exhibit C.

Attached to the further affidavit are two (2) exhibits, marked “B” and “C”.

Exhibit B is the, Amended Joint Statement of Defence, dated and filed on 10th May, 2006, at the trial court. Exhibit C is, the proposed Further Amended Joint Statement of Defence of the Applicants.

In opposition to this application, the Respondent through one Ogbeide Jeffrey swore to a counter affidavit of four (4) paragraphs. The relevant paragraphs of the counter affidavit are as follows:

2. That I have the authority and consent of the Respondent/Respondent to depose to this affidavit on his behalf.

That I am informed by O.A. Lawani Esq., of Counsel to the Respondent in the Law Firm of Osagie Obayuwana & Co. at about 2.00 pm on 2/2/10 and I verily believe him as follows: