Ime Friday Udotim & Anor V. Uyo Udo Idiong & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment)

At the High Court of Akwa Ibom State, holden at Ikot Ekpene, the appellants in this appeal [as plaintiffs] commenced action in a representative capacity against the respondents [as defendants], also, in a representative capacity. That was way back in 1995, eighteen years ago! Subsequently, the original counsel whom the appellants engaged died, necessitating the engagement of another counsel. The numerous applications from both sides occasioned many adjournments in the matter.

At a point, parties were granted the indulgence to attempt an out-of-court settlement. It failed. When the matter resumed in court, pleadings were amended. It would appear that the matter was destined to have a chequered history. The learned trial Judge went on a national assignment that took him away for over eight months.

What prompted the ruling that culminated into this appeal was an application which the appellants’ new counsel filed for leave to amend the pleadings which the previous counsel filed. The respondents, vigorously, opposed the said application. In its ruling of November 15, 2012, the court [hereinafter referred to as “the lower court”] refused to oblige the appellants with their supplication for amendment, pages 90-95 of the record.

Aggrieved by this interlocutory application, wherein the lower court declined to exercise its discretion in their favour, the appellants appealed to this court, vide their Notice and Grounds of Appeal, pages 96-99 of the record. Their appeal was woven around two grounds tagged error in law. Instructively, in appealing against the said interlocutory ruling concerning the lower court’s exercise of discretion, counsel neither sought the leave of the lower court nor that of this court. They formulated two issues for the determination of their appeal. They were couched thus:

ISSUE 1

Whether the trial Court was right in law to have refused applicants’ application to amend?

ISSUE 2

Whether in law it is proper to visit the mistakes of a counsel (sic) on a litigant?

On their part, the respondents set out a sole issue for the resolution of this appeal. It reads thus:

Whether the trial court was right in law to have refused the applicants’ application to amend their pleadings?

In the ordinary course of events, we would have proceeded to the determination of this appeal by considering the effervescent submissions of the appellants’ counsel spanning pages 1-8 [paragraphs 3.01 -5.00] of the appellants’ brief of argument filed on March 22, 2013; their reply brief, pages 4-6 [paragraphs 2.01-3.00] and the arguments of the respondents’ counsel, pages 5-9 [paragraphs 2.04 – 3.00] of their brief filed on April 26, 2013.

However, there is a snag here. As noted above, in appealing against the said interlocutory ruling concerning the lower court’s exercise of discretion, counsel neither sought the leave of the lower court nor that of this court. Expectedly, counsel for the respondents entered a preliminary objection against the appeal for being incompetent. Their terse and pungent submissions in support of the said objection are just in two paragraphs of their brief, [paragraph 101 (sic, 1.01), pages 1-2 of the said brief].

THE RESPONDENTS PRELIMINARY OBJEGTION