Hyginus Okechukwu Nnubia V. Inter Continental Bank PLC (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment)

This appeal is against the interlocutory ruling of the Lagos High Court of Justice presided over by JUSTICE J.E. OYEFESO delivered on the 7th day of February, 2012 wherein the court refused leave to the appellant to amend his statement of defence. The appellant, aggrieved with the said ruling, appealed to this court by a Notice of Appeal dated 16th February, 2012 setting out 3 grounds of appeal.

The brief facts of this appeal are that the Respondent by a writ of summons initiated a suit against the appellant and 2 others at the High Court asking for foreclosure of a tripartite mortgage. Judgment was obtained against the 2 other defendants at pretrial stage but the court declined to enter judgment against the appellant because the Respondent failed to exhibit the execution page of the Tripartite Legal Mortgage.

Thereafter, the Respondent sought leave of court to amend its originating processes which was granted on 23rd November, 2010. The Respondent filed additional documents which now exhibited the execution page of the deed of tripartite mortgage. The Appellant changed counsel and thereafter applied to amend his statement of defence by seeking the following orders:

(i) An Order granting the Defendant/applicant leave to amend his statement of defence, list of witnesses, witnesses’ statement on oath, and list of documents to be relied upon at trial all dated 26th day of July, 2010 in the manner shown and underlined in the Proposed Amended Statement of Defence and Proposed Amended Statement on Oath of Mr. Hyginus Nnubia, the defendant attached as bundle and marked Exhibit A; and

(ii) Such further orders as the Honourable Court may deem fit to make in the circumstances.

The application was taken and the Lower Court in a considered ruling refused the application because the amendment will overreach the Respondent and it was changing the nature of the suit. The appellant dissatisfied with the ruling appealed to this court setting out 3 grounds of appeal.

Appellant filed his brief on the 5/6/12 dated same date while the Respondent filed its brief on the 4/7/12 also dated same date and adopted at the hearing of the appeal.

The appellant formulated 3 issues for determination as follows:

(i) Whether the Appellant is entitled to amend his Statement of Defence at any time or at the time the learned trial Judge refused same, judging from all the circumstances of the case, if the answer is in the affirmative, whether the learned trial Judge is justified in law, to refuse the Appellants prayer as done in the present case.

(ii) Whether the learned trial Judge’s denial of the appellant the right to amend his pleadings in accordance with the clear and mandatory provisions of Order 24 Rule 1 and 2 is tantamount to a denial of his constitutional right to fair hearing as enshrined in Section 6(6) of the Constitution of the Federal Republic of Nigeria, 1999 OR: Whether the Appellant was not denied fair hearing by failure of the trial Judge to give adequate considerations to all the issues raised by the Appellant before refusing the Appellant the prayers sought.

(iii) Whether the learned trial Judge followed the reasoning of the legal authorities cited in his ruling or deferred to relevant legal authorities.

The Respondent on its part distilled 2 issues namely:

(i) Whether the Lower Court was not justified in law in refusing the Appellant’s motion on Notice dated 11th day of July 2011 based on facts and circumstances of this case.