Honey Crown Products Limited V. Shell Electric Manufacturing (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment)

This is an Appeal brought by the Defendant/Appellant against the decision of Archibong J. Of Federal High Court, Lagos delivered on the 6th day of November, 2008 refusing to grant the prayers contained in the two Motions on Notice dated 26th September, 2008, for leave to amend its Statement of Defence and to recall PW1 for continuation of cross examination.

The substantive case is a consolidated suit for trade mark infringement and passing off instituted by the Respondent/Plaintiff by a writ of summons dated 17th September, 2001. The Respondent/Plaintiff, in its amended statement of claim, dated 26th January, 2002, prayed the Honourable Court inter alia for injunctive reliefs and general damages of One Million Naira. The Appellant/Defendant subsequently filed their statement of Defence and other processes. On the 12th day of June, 2008, trial commenced with the evidence in Chief of PW1. At the end of his testimony, the Defence Counsel requested for an adjournment.

The suit was adjourned to 13th June, 2008. When the matter came up on 13th June, 2008 the Defence Counsel requested for another date to prepare for his case (see pages 39 and 40 of the Record of Appeal). Despite objection from Plaintiff’s counsel that the Defendant had enough time to prosecute its case and the age of the suits, the Honourable Court still obliged the Defendant another adjournment to 18th June, 2008. At the commencement of the matter on 18th June, 2008, the Defendant’s Counsel informed the Court that he was ready for cross examination (see page 41 of the Records of Appeal). Having gone far into his cross examination the Defendant’s counsel again requested for another adjournment “in order to do proper justice to the case”.

When the court did not give heed to the request, the said Counsel then said that the reason for the request for another adjournment was that he was considering amending the Statement of Defence (page 43 of the Records) the Court refused to grant this third request for adjournment on the ground that an adjournment cannot be granted on the basis of an intention. The Honourable Court then foreclosed the Defendant’s cross examination and called on the Plaintiff’s Counsel to proceed with re-examination; at the end of which, the court adjourned the matter for the defence of the Defendant. When the matter again came up on 6th November, 2008 the Defendant’s counsel informed the court that he had two applications dated 26th September, 2006, one seeking leave to amend Statement of Defence and the other to recall PW1.

The Plaintiff’s counsel on being called upon by the learned trial judge for his reaction stated that he is opposing the applications. The record of appeal at page 98 shows that the defendant’s counsel then stated that he moved the applications in the interest of justice. The Honourable court thereupon ruled denying the applications in the interest of speedy administration of justice. Aggrieved by the decision of the trial court, the defendant filed a notice of appeal with two grounds of appeal, out of which he distilled two issues for determination. The issues are:

1. Whether the learned trial Judge erred in law when it failed to consider and determine on merit the two separate applications brought by Motions on Notice both dated 26 September, 2009.
2. Whether the failure to consider and determine the said applications on merit amounts to denial of the fundamental right to fair hearing guaranteed under Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria.

The plaintiff now Respondent in his brief formulated a single issue for determination:

Whether the learned trial Judge properly exercised his discretion when he refused the Defendant/Appellant’s two applications dated 26th September, 2008 for the amendment of Statement of Defence and recall of PW1.

The appeal was heard on the 28n day of November, 2012. The appellant was not represented but there was evidence on record that hearing notice was duly served on his counsel. Mr. Olubor of counsel for the respondent adopted and relied on the respondent’s brief and urged the court to dismiss the appeal. Pursuant to Order 18 rule 9(a) Court of Appeal Rules, the appellant’s brief was deemed duly argued.

I shall adopt the appellant’s two issues in the determination of this appeal.

APPELLANT’S ARGUMENTS

Learned Counsel for the appellant in his brief submitted that it is trite principle of law that an application for amendment of pleadings calls for the exercise of the court’s discretionary power which must be exercised judiciously and judicially. Relying on the case of MELIFONWU V. EGBUNIKE (2001) 1 NWLR (PT. 694) 271 @ 280 A – B, counsel submitted that an Appellate court will intervene where it is shown that the trial court did not exercise its discretion properly. Learned counsel argued that the above stated principle of law applies to every other interlocutory application before the Court, including an application to re-call a witness for the purpose of putting the real issues in a case before the court, and giving a party an opportunity to properly ventilate its case before a court of justice.

Counsel cited of OGBONNA V. UKAEGBU (2005) 17 NWLR (PT. 954) 432 @ 443 C – D. Counsel further submitted that a determination of an interlocutory application by a court without due consideration of the relevant facts and adherence to relevant principles and provision of the law, will amount to a wrong exercise of judicial discretion. Counsel contended that it amounts to abuse of discretion for a Judge to suo motu raise an issue and rely on it as the basis of its ruling in a pending application without hearing the parties in respect of the issue. UGO V. OBIEKWE & ANR. (1989) 7 NSCC 296 @ 306.

Counsel submitted that in the instant case, the Appellant in paragraphs 4, 5, and 6 of the affidavit in support of the Motion for amendment at page 88 of the record of appeal, as well as in paragraphs 4, 5, and 6 of the affidavit in support of motion to re-call PW1 at pages 96 and 97 of the record of appeal, deposed to facts upon which its two applications were based; but instead of determining the Defendant’s motions based on the facts, evidence and issues before the court as contained in the Applications and supporting affidavits, the trial court on its own raised the issue of speedy dispensation of justice and age of the case, and thereupon predicated his ruling on it at page 98 of the Record of Appeal in the following words: “And I deny both applications in the interest of speedy administration of justice…” Counsel submitted that this is a wrong exercise of judicial discretion. NORWOOD (NIGERIA) LTD & ORS V. STAHLBUA GMBH & CO. LTD., (1989) 2 NSCC PAGE 411 @ 420.