Festus Ibidapo Adesanoye & Ors V. Prince Francis Adewole (2003)
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KUMAI BAYANG AKAAHS, J.C.A.
The applicants in this motion are the respondents in the substantive appeal. In their application dated 21/10/2002 filed on the same date, they are asking for leave to raise and argue two points of law which were not taken in the court below namely:-
1. That leg (i) of the amended claim of the plaintiff/appellant on page 120 of the record of appeal is statute barred and consequently leg (ii) cannot be sustained.
2. The legal effect of not pleading and tendering the 1958 Declaration.
The application is brought under Order 6 rules 3(a) and 4(ii) of the Court of Appeal Rules and the inherent jurisdiction of the court. It is supported with an affidavit containing 18 paragraphs and a further and better affidavit of 12paragraphs which were deposed to by Taiwo Ogunmoroti and Bola Aruleba respectively.
The application is being strenuously opposed and to this end the appellant in the substantive appeal deposed to a 15 paragraph counter-affidavit to which was annexed the ruling by Justice D.E. Babalola in suit No HOD/99/91 delivered on 24/5/94.
Mr. A. Akanle, SAN leading B. Udevbure Esq. made oral submission on behalf of the applicants. He contended that the ruling annexed to the counter-affidavit relates to the original claim as can be seen on page 2 of the records containing the writ of summons but his application is in respect of the amended claim at page 120. He submitted that Edict No.2 of 1992 stipulates that any challenge as to approval by the state government of an oba’s appointment must be done within 7 days of the approval. He therefore urge us to allow him raise the issues.
Mr. Thompson, learned counsel who appeared for the 1st respondent in opposing the first leg of the application contended that the issue which learned senior counsel wants to argue in the appeal is res judicata and the lower court made a pronouncement on it since 1994 and is not the subject of appeal and the Supreme Court has made a pronouncement on the matter relied on in Adesanoye v. Adewole (2000) 9 NWLR (Pt.671) 127. He submitted that an amended claim dates back to the date of the original claim. He argued that the approval was given on 17/10/91 before the Edict came into being and urged this court to dismiss the application.
Mr. Akanle, SAN in reply agreed that the approval of the appointment was made on 17/10/91 and Edict No.2 1992 became operative on 23/12/91 but submitted that the case of Adesanoye v. Adewole (supra) is related to the original claim. He argued that ordinarily an amendment will relate to the date of the original claim but if in the amended claim, a fresh claim is made, then that fresh claim must be tested on the alter of limitation; hence the amendment which was made in June, 1992 after the Edict came into being falls into the ambit of the limitation provision contained in the Edict. He placed reliance for this submission on the case of Balogun v. Panalpina W.T (Nig.) Ltd. (1999) 1 NWLR (Pt.585) 66 at 79.
Mr. Salami who appeared for the Attorney-General of Ondo State merely associated himself with the submission of Mr. Akanle – SAN without making any further submissions. It would have been most helpful in the resolution of the application if Mr. Salami had made submissions showing the official stand of the Attorney-General of the promulgation of the Edict and the amendment to the pleadings that was effected thereafter.
It is necessary at this point to set out the facts briefly in order to understand the issue in contention. On 14/10/91, the 1st respondent to this application took out a writ of summons challenging the selection of the 1st applicant as the Osemawe of Ondo which was made by the 2nd, 3rd and 4th respondents who were then defendants.
In the endorsed writ, the 1st respondent as plaintiff claimed against the defendants the following reliefs:-
1. A declaration that the 1st defendant is not qualified to be appointed Osemawe on the ground that his purported appointment is a breach of tradition.
2. A declaration that the purported selection of the 1st defendant by the 2nd, 3rd and 4th defendants is in contravention of the Chiefs Edict 1984.
3. Order directing the 5th defendant not to act or take any further steps on the purported selection by the 2nd, 3rd and 4th defendants.
The statement of claim accompanied the application for the issuance of the writ. The suit was filed apparently with the aim of stopping the eventual appointment of the 1st defendant as Osemawe.
The plaintiff could not arrest the eventual appointment of the 1st defendant as the Osemawe of Ondo since the Executive Council of Ondo State proceeded to approve the selection which was published in the Official Gazette of Ondo State leading to his appointment as the Osemawe. On account of this development, the plaintiff brought an application to amend the pleadings in which he claimed the following reliefs:-
“Whereupon the plaintiff claims as follows –
(i) A declaration that the purported approval of the 1st defendant as Osemawe of Ondo published in the Official Gazette Chief Edict No. 11 of 1984 dated 17th October, 1991 is ultra vires void and of no effect whatsoever.
(ii) A declaration that the purported appointment of the 1st defendant as Osemawe of Ondo is contrary to the custom appertaining to the Chieftaincy void and of no effect.
(iii) Order restraining the 1st defendant from parading himself as Osemawe elect dated 2nd day of June, 1992”.
In paragraphs 4,5,6, 7, 8, 9, 12, 13 and 14 of the affidavit in support which was sworn to by Taiwo Ogunmoroti, he averred as follows:-
“4. That plaintiff/respondent filed his original claim on 14th October, 1991
5. That on or about 8th June, 1992 plaintiff/respondent amended his claim vide pages 114 and 120 of the record of appeal.
6. That first defendant/applicant’s approval as Osemawe was on 17th October, 1991.
7. That leg(i) of the amended claim on the said page 120 of the record of appeal was brought about nine months after the aforesaid approval.
8. That I know that the said leg(i) is not within the time the claim should be made.
9. That I also know that leg(iii) of the said amended claim hangs on leg(i)
12. That in the same way the 1958 Chieftaincy over which a heavy weather was made was not pleaded or tendered by the plaintiff.
13. That the parties and the lower court only touched the matter in passing.
14. That it is necessary proper legal argument should be proffered on it in this court”
The appellant/respondent deposed to a 15 paragraph counter affidavit and averred in paragraphs 5, 6, 7, 8, 10 and 11 of the counter affidavit as follows:-
“5. That during the course of the trial at the lower court the 1st to 4th respondents by motion sought an order striking out the suit on the ground that the plaintiff did not institute the action within seven days of the appointment of the 1st respondent
6. That on the same motion paper the respondents also sought for an order striking out the suit on the ground that the plaintiff has failed to give security for the sum of N25, 000 prior to instituting the suit.
7. That on 24th May, 1994 a considered ruling was given by Babalola J. of the High Court of Ondo State on the prayer sought by the respondents in their motion paper.
8. That in the ruling, a certified copy of which is attached and marked exhibit A the High Court found that the appellant filed his action within 7 days of the appointment of the 1st respondent.
10. That there was no appeal by the respondents challenging the decision of the High Court with regards to its findings in relation to the issues referred to in paragraph 8 above.
11. That the only appeal challenging the ruling of Babalola J. was that filed by the appellant and it only challenged the order striking out the appellant’s suit on the ground that he failed to give security for the sum of N25, 000 prior to instituting the suit.
13. That issue of the relevance of the Ondo Chieftaincy Declaration 1958 to the action was raised at the High Court by respondents’ counsel as recorded in page 222 lines 20 to 30 and on page 223 lines 1 to 13 of the record although there was no decision on that point by the learned trial Judge.”
The further and better affidavit which was deposed to by Bola Aruleba on behalf of the applicant averred in paragraphs 8 and 9 thereof as follows:-
“8. That as regards paragraph 11 of the counter – affidavit both the ruling in exhibit A attached to the counter-affidavit and in the Supreme Court judgment in the matter in S.C. 36/98 and reported in (2000) 9 NWLR (Pt.671) 127 to 176, two points were in issue:-
(a) Whether the present appellant filed his original claim within the time stipulated by Ondo State Edict 2 of 1992?.
(b) Whether the said Edict has retrospective or retroactive effect?.
9. That the issue in the present matter is totally different for it is whether the amended claim of the appellant on page 120 of the record of appeal was brought within the time stipulated in the said Edict.”
As argued by the learned senior counsel and also averred in paragraphs 8 and 9 of the further and better affidavit in support of the motion this application if granted would enable the respondents to the main appeal argue that the amendment to the claim which was made on 8th June, 1992 made the claim to be statute barred since the law stipulated that if a party wants to challenge the approval of a chieftaincy appointment, he should do so within seven days of the appointment. If the application is granted, it will be tantamount to re-opening the arguments which sought for the striking out of the suit on the ground that the plaintiff did not institute the action within seven days of the appointment of the 1st respondent. As rightly argued by Mr. Thompson, learned counsel for the appellant/1st respondent in this application the issue has been decided upon and no appeal was filed against it.
In paragraph 2 at page 16 of the ruling delivered by Babalola J. which was attached and marked exhibit “A” to the counter-affidavit of the appellant/1st respondent, the learned trial Judge said:-
“I also agree with Mr. Thompson that the plaintiff in his writ of summons filed on 14/10/91 challenged the 1st defendant’s appointment. Therefore the plaintiff’s action was instituted within seven days of the date of his appointment which was made on 12/10/91.”
Having instituted his action within the period required by law, he is at liberty to bring as many applications as he wanted to enable him amend the claim. See: U.R.N. Plc. v. Sparkling Breweries Ltd. (1997) 3 NWLR (Pt.491) 29. The duty to allow or refuse the amendment is that of the court. Once an amendment of a court process has been ordered, the effect is that what stood before the amendment is no longer material before the court and no longer defines the issues in contention. See: Amanambu v. Okafor (1966) 1 All NLR 205; Rotimi v. Macgregor (1974) 11 SC 133; Agbabiaka v. Saibu (1998) 10 NWLR (Pt.571) 534.
The aim of an amendment is usually to prevent the manifest justice of a cause being defeated or delayed by formal slips which arise from the inadvertence of counsel. The courts have through the years taken the stand that however late the proposed amendment, it ought to be allowed, if this can be done without injustice to the other side, for a step taken to ensure justice cannot at the same time and in the same breath be used to perpetuate an injustice on the opposite party.
The test as to whether a proposed amendment should be allowed is whether the party applying to amend can do so without placing the opposite party in such a position that compensating him with costs will not be adequate compensation for the amendment granted. See: Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt.60) 214; Ibe v. Onuorah (1998) 7 NWLR (Pt.558) 383.
Learned counsel for the 1st respondent in the application also submitted that the Supreme Court made a pronouncement on the matter. I agree with his submission. When dealing with interpretation of retrospective legislation as it affected section 2(1) of Edict No.2 of 1992 in relation to this matter on providing security of N25,000 to challenge the approval of appointment of an Oba, the Supreme Court held that there is a presumption that the legislature does not intend what is unjust and therefore the courts lean against giving certain statutes retrospective effect.
In the instant case, where the respondent had instituted his action on 14/10/91 but the action was struck out because he had not provided the security of N25, 000 within the time stipulated by the Edict, his appeal to the Court of Appeal was allowed and this decision was affirmed by the Supreme Court on 19/5/2000.
The judgment is reported in (2000) 9 NWLR (Pt.671) 127. The amendment was granted by the High Court after the Supreme Court had given its judgment. The amendment to my mind did not introduce a fresh claim into the matter. The application therefore lacks merit and it is accordingly refused. I make no order on costs.
Other Citations: (2003)LCN/1434(CA)