General Yakubu Gowon Vs. Mrs. Edith I. Ike-okongwu (2003)

LAWGLOBAL HUB Lead Judgment Report

I. KATSINA-ALU, J.S.C. 

This is an appeal from the judgment of the Lagos Division of the Court of Appeal delivered on 10th August, 1993. The appeal arises out of an action which was brought by Mrs. Edith I.Ike-Okongwu and Mr. Musa Gowon against the defendant, General Yakubu Gowon in which they claimed as follows:

“1. DECLARATION that the 2nd plaintiff’s paternity has been acknowledged by the defendant in accordance with the Native Practice in Nigeria and/or practice under Native Law and Custom of Pankshin people of Pankshin Local Government Area where the defendant comes from.

2. DECLARATION that the statement contained in letter dated 16th day of October, 1987 written at the instance of the defendant (by his solicitors) to the Editor of Prime People Magazine is untrue.
3. DECLARATION that the defendant is estopped from denying paternity of the 2nd plaintiff whose paternity he has acknowledged in accordance with Native law and custom of Pankshin people of Pankshin Local Government area.
4. ORDER for payment by the defendant to the 1st plaintiff of the sum of N10,000,000.00 being damages for libel contained in a letter dated 16th October, 1987 published by the defendant through his Solicitor to the Editor of Prime People.
5. ORDER for payment by the defendant to the 2nd plaintiff of the sum of N20,000.00 being damages for libel contained in a letter dated 16th October, 1987 published by the defendant through his Solicitor to the Editor of Prime People.
6. AN ORDER for the payment of N280,000 being money spent for the Education and upkeep of the 2nd plaintiff as befit his status as the 1st son of a former Nigerian Head of State.
7. ORDER that the defendant should maintain and pay the school fees of the 2nd plaintiff from the date of judgment.
8. AN ORDER OF INJUNCTION restraining the defendant by himself or by his servants or agents from further writing or otherwise publishing of the plaintiffs the said or similar libel.”

In his reaction the defendant filed a statement of defence. On 5 February, 1991, the defendant again filed a motion seeking leave to amend the statement of defence, enlargement of time within which to file a counter-claim and deeming the amended statement of defence containing the counter-claim already filed as duly filed and served.

The motion was argued and on 15 March, 1991 the learned trial Judge struck out both the amended statement of defence and the counter-claim. The defendant’s appeal to the Court of Appeal was dismissed. The defendant has further appealed to this court. The defendant, as appellant, raised three issues for determination in this appeal. They read:

“1. Whether the Court of Appeal was right in holding that the lower court was not in error refusing the application to amend the statement of defence, when the parties were still in the process of settling pleadings and before the action was set down for trial.

2. Whether the Court of Appeal was right in holding that the learned trial Judge was not in error in refusing the application for extension of time to file a counter-claim because the cause of action occurred to the defendant after he had filed a statement of defence.
3. Whether the Court of Appeal was right in holding that there was no appeal filed by the Appellant against the exercise of discretion by the lower court.”

For their part, the plaintiffs submitted two issues for determination in their respondents’ brief of argument. These are:

“1. Whether or not the Court of Appeal misdirected itself on the facts and the law in the appeal before it as a result of which it came to a wrong decision in the appeal.

2. Was the Court of Appeal right when it held that the appellant’s appeal was not against the wrong or injudicious exercise of the discretion of the trial Judge in his decision from which the appellant’s interlocutory appeal emanated.”

As I have already stated, three issues have been taken by the defendant here, and the short point upon which I decide this appeal is whether the Court of Appeal was right in holding that the learned trial Judge was not in error in refusing the application for extension of time within which to file a counter-claim on the ground that the cause of action occurred to the defendant after he had filed his statement of defence.

The plaintiffs in the original action claim that the defendant, General Yakubu Gowon, is the father of the 2nd plaintiff, Musa Gowon. They also claim damages of the sum of N10,000,000.00 for alleged libel contained in a letter published by the defendant through his solicitors to the Editor of a monthly magazine “The Prime People.” Also claimed is the payment of N280,000.00 being money expended for the education and upkeep of the 2nd plaintiff. Also that the defendant should maintain and pay the school fees of the 2nd plaintiff from the date of judgment. Lastly the plaintiffs seek an injunction to restrain the continued libel complained of.

As I have already stated, the defendant denied liability and filed his statement of defence, on 5 February, 1991. It was after this that he brought a motion seeking leave to file an amended statement of defence by the inclusion of a counter-claim. It is important to mention here that the parties to the counter-claim are General Yakubu Gowon as the plaintiff and Mrs. Edith I. Ike-Okongwu, True Tales Publications Limited and Kayode Ajala as the defendants. The subject of the counter-claim was an alleged libellous article in two publications of the magazine called “HINTS – True Life Romances.” These publications of the magazine were made after the plaintiffs had filed their amended statement of claim and after the defendant had also filed his statement of defence. In other words the cause of action arose after the parties had filed their pleadings in the original action.

In its judgment the Court of Appeal held that:

“It is the law that an amendment relates back to the original pleading and the amendment sought to be filed in this case seeks to incorporate a cause of action which arose after the statement of defence was filed did not exist. Such an amendment, generally, should not be allowed……………………………..

If an amendment is to the effect that it would bring into an action an entirely fresh cause of action arising after the action had been started, such an amendment may not be allowed. The amendment in such a case should not be entertained in as much as it related to a cause of action which did not exist at the time when the writ was issued. To bring in such a cause of action does not seem to me to be amending the proceedings at all; it is starting a new cause of action, and one which could not have been sued upon at the time the action was commenced.”