Kingson Hart V. Victoria H. Igbi (1998)

LawGlobal-Hub Lead Judgment Report

NSOFOR, J.C.A.

This is an interlocutory appeal from the “decision” of the Port Harcourt High Court (Niki Tobi, J.) (as he then was) on the 15/6/90 in suit No. PHC/300/89. The appellant was the defendant in the suit wherein the claim was for:-

“1. A declaration that the plaintiff is entitled to a customary right of occupancy of a parcel of land used as cemetery at Iloma, for burial of the late founder and his direct descendants.

2. N10,000.00 (Ten thousand naira) being special and general damages for trespass committed on the plaintiff’s land at Iloma, situate at Bonny by the defendant on 13th day of August, 1989, when he the defendant wrongfully dug a grave for the burial of late Samuel Hart on the parcel of land strictly provided for Chief William Ignakorobofori (founder) and his direct descendants.
3. A perpetual injunction restraining the defendant, his agents/servants and or privies or otherwise to desist from committing further acts of trespass on the land,”

After an order for written pleadings was made but before ever any pleadings had been filed the plaintiff brought an application by way of motion on notice. The application was dated the 9th of April, 1990. By the application the applicant prayed the court for:-

“(a) An order or leave to amend the writ of summons (form 1) and the particulars of claim in the manner and to the extent stated in schedule 1 “Particulars of amendment”, and finally incorporated in schedule 2 Amended writ of summons and the same be deemed as having been duly filed and served on the defendant/respondent subject to payment of necessary fees.

(b) Any order or other order as the honourable court may deem fit to make in the circumstance.”

It was expressed on the “notice of motion” the “quo warranto” for the application. It is:-

“Under Order 5, rule 3, Order 3, rule 4(1) (2) and Order 26, rule 1 of the Rules of the High Court. 1987.”

The application was supported by or with an affidavit. It has a total often (10) paragraphs. The plaintiff/applicant swore the affidavit. There was not filed an affidavit in opposition, assume, “argument”?, there be any facts averred in the affidavit which the defendant/respondent intended to contradict or counter. I shall be referring to the affidavit later in the judgment.

The application came on for the hearing on the 104/4/90. It was heard. In a reserved and well considered ruling, the learned trial Judge allowed the motion. He granted the application accordingly. In reaching his conclusion, the learned trial Judge wrote at page 62 of the record inter alias:-

“I am also of the firm view that the amendments are really not material (in) the sense that they are designed to change the character of the suit.”

Continuing, the learned trial Judge expressed himself in page 63 lines 14 to 18 of the record:-

“It looks to me to be genuine desire and intention on the part of the late Chief William Igbinakorobofori family that Mr. Nathan Dagogo-Hart join Victoria Igbi in prosecuting the pending action. I therefore grant the application.”

The defendant/respondent was compensated in costs assessed and fixed at N100.00.

The defendant was not happy with the “decision”. Not satisfied indeed dissatisfied and aggrieved with the “decision” he has naturally and logically appealed from the “decision” to this court on one ground of appeal (copied in pages 66 to 69 of the record).

The ground of appeal, shorn of its “Particulars” (covering pages 67 and 68 of the record), reads:-

“1. The learned trial Judge erred in law when he granted the plaintiff/respondent’s application for leave to amend the writ of summons and particulars of claim when the amendment sought was in substance to change the parties to the suit and the capacity in which the plaintiff had instituted the action.”

Notwithstanding that there was an expression of an intent in paragraph 3 at page 68 to the effect that:-

“3. Further grounds to be filed upon receipt of the records of proceedings”.

I confess I did not see any further grounds or a ground of appeal filed. My attention has not been drawn to any either. None, ex facie, or, “in facie” the record before me, was filed.

Now, it behoves me to state the background or antecedent facts of the case leading to the present appeal. And this opens the doors to the affidavit by Victoria Igbi. The following paragraphs 2 to 9 (hereof are relevant. They read:-

“2. That on the 25th day of August, 1981 my solicitor at the time, Mr. Pikibo Selema of No.19 Station Road, Port Harcourt filed an action on my behalf against the defendant claiming a declaration to a customary right of occupancy over a parcel of land at Iloama in Bonny Local Government Area, N10,000.00 general damages for trespass and an order for perpetual injunction.

3. That I subsequently decided to hand over the case to my present solicitors S. E. Charles-Granville and Co. of No.79, Bende Street, Port Harcourt.
4. That I have been told by my solicitors and I verily believe them that there were slight errors in the writ of summons filed by my former solicitor which needed to be corrected.
5. That I have been informed by my solicitors and 1 verily believe that since the subject of my claim i.e. a parcel of land at Iloama as filed by my former solicitor is the property of Late Chief William Igbinakorobofori’s family, the action ought to be by representative capacity.
6. That following the advice of our solicitor a meeting of the members of the Late Chief William Igbinakorobofori’s family was held at the residence of Stephen Hart at Bonny on Saturday the 10th of February, 1990.
7. That at the said meeting, members of the Late Chief William Igbinakorobofori’s family resolved that Mr. Nathan Dagogo Hart an elder member of the family and myself should represent the family as plaintiffs in the action. (Attached is a copy of the resolution marked Exhibit ‘A’).
8. That the particulars of amendment – schedule 11 is herewith attached and marked Exhibit 9. That the amended writ of summons schedule 11 is herewith attached and marked Exhibit C’ “.

Part of Exhibit A. headed:-

“Resolution of members of the family of Late Chief William Igbinakorobofori of Bonny held at the residence of Stephen Hart on Saturday the 10th of February, 1990 (The small letters are mine) read:-

“We, the entire members of the family of Late Chief William Igbinakorobofori of Bonny, having been advised by our solicitors, S. E. Charles-Granville and Co, of the necessity for members of the late Chief William Igbinakorobofori’s family to be the plaintiffs in suit No. PHC/300/89 now pending in High Court 9, Port Harcourt, do hereby resolve as follows:-

1. That Mr. Nathan Dagogo-Hart and Victoria Igbi both members of Late Chief William Igbinakorobofori’ s family are hereby authorized to sue as plaintiffs in the pending land suit No. PHC/300/89 at High Court 9 Port Harcourt since the subject matter of the said suit is a parcel of land belonging to the Late Chief William Igbinakorobofori’s family.

Dated at Bonny this 10th day of February, 1990.

In witness whereof, we the under-signed append our names and designations.

(1) …..?

I shall pause here to note that on the high authority of Adegbite v. Lawal (1948) 12 W.A.C.A 398, the authorization either to sue or to defend in any suit in a representative capacity is given by the other persons represented and interested either in suing or in defending the suit. The question of approval of the authority by court is another matter.

For the purpose of completeness it is desirable to reproduce “Schedule 1 Particulars of Amendment.” It reads in parts thus:-

1. “I. Nathan Dagogo-Hart
2. Victoria Igbi plaintiffs

(For themselves and as representing

the Chief William Igbinakorobofori

family of the Han Major House of

Bonny in the Bonny Local Government

Area of Rivers State)

and

Kingston Hart ” defendant.”

2. To amend paragraph I of the particulars of claim the writ of summons filed on 25th August, 1989 to now read as follows:-

“A declaration that the plaintiffs are the persons entitled to a customary right of occupancy over a piece or parcel of land at Iloama village exclusively preserved for the burial of late Chief William Igbinakorobofori and his descendants.

3. …..?

The appellant has formulated two issues for determination. They are:-

“I. Whether on an application for leave to amend a writ of summons, a High Court can make an order to allow the addition/joinder of person, as plaintiff, who, is not already a party in the action?

2. Whether, in the circumstances of this case, it was proper for the learned trial Judge to have granted the application of the plaintiff when the same amounted not only to an alteration of the plaintiff but also an alteration of the capacity in which the action was brought?

Counsel for the respondent identified one issue for determination. It is:”

Whether the learned trial Judge’s order for amendment of the writ, whereby an additional person is joined as a plaintiff and both to represent the plaintiff’s family has occasioned a miscarriage of justice.”

I have examined the two sets of the formulations of the issues for determination. Concisely stated, the two issues formulated by the appellant may conveniently be condensed into one. But be that as it may, I shall consider and deal with the appeal based on the issues as formulated in the appellant’s brief of argument.

In arguing issue No.1, counsel has contended in the appellant’s brief that the whole of what was sought for by the respondents was an “amendment” and for that purpose resort ought to be had to Order 26, rule 1 of the Rivers State High Court (Civil Procedure) Rules (hereinafter to be referred to, simply, as the Rules, for short). It was argued that while the intendment of Order 26, rule 1ofthe Rules was to enable the court to correct any defect or error in any proceedings in order to determine the real question in controversy between panics, the respondent’s application transcended the scope and intendment of Order 26, rule 1 of the Rules. The joinder of Nathan Dagogo-Hart as a plaintiff-party does not come within the purview of Order 26, rule 1. Different principles of law govern and regulate questions of “Joinder” of parties to an action. Counsel referred to Order 11 of the Rules. He cited Adeleke v. Awoliyi (1962) 1 SCNLR 401 at 402-403; (1962) All NLR (Pt.1) 260 at 262 and Wimpey Nigeria Ltd. v. Balogun (1986) 3 NWLR (Pt.28) 324, 333 (E-H). In conclusion counsel urged us to allow the appeal on that issue. Counsel’s argument in support of issue No.2 went this way. The land in dispute was late Chief William Igbinakorobofori family land. When the respondent took out the writ originally, she had no authority to claim the land for herself or, on behalf of the family. The family authorization was procured six months later. It was the further contention by the counsel in the brief that application altered not only the parties but also the capacity in which the action was brought. Relying on the Order 11 rule 8, it was submitted that the respondent failed to comply with the pre-conditions immanent in the Order and rule. For support and in support of the contention, counsel had cited an avalanche of cases including (a) Ikpuku & Ors v. Ikpuku & Ors (1991) 5 NWLR (Pt.193) 571, 583 (b) Afisi & Ors v. Lawal & Ors (1992) 1 NWLR (Pt.217) 350, 362 (D – F). Finally, counsel contended that the application ought not to have been granted so as to “create” a suit for the late Chief William Igbinakorobofori family where there was none.

Counsel for the respondent in the respondent’s brief justified the order made by the court below pursuant to Order 26, rule 1 of the Rules. It was argued that a plaintiff may by way of an application seek to amend the capacity in which the action was brought from “personal”‘ to “representative” capacity, there being no rule of law requiring that the authorization by those to be represented shall first be obtained before the writ is taken out or filed. For support, the case of Amadi vs. Thomas Aplin & Co. Ltd. (1972) 1 All N.L.R. (Pt. 1) 409, 416 was cited and relied on.

Counsel, however, conceded that an application for “joinder” may be a more appropriate procedure to adopt for a joinder than an action for “Amendment”. But the procedural error in adopting an application for “Amendment” rather than for “joinder” would not vitiate the trial and the appellate court would not interfere provided no prejudice was caused to the other party or no miscarriage of justice is occasioned. He prayed in aid of Chief Kufaru Ofe v. Chief Ganiyu Babalola (1991) 4 NWLR (Pt.185) 267 at 282C. In conclusion, counsel urged us to dismiss the appeal.

A good starting point for me is, firstly, to remind myself of what principle to guide me in reaching my conclusion. It is my confirmed view that the courts exist to do justice and nor to supervise a game of forensic dialectics or to punish litigants for the errors of their solicitors or counsel. And this brings me to examine and consider the term of word “Amendment”. Counsel, it would appeal to me, have over laboured the word and restricted its meaning so as to limit it within the context to the Rules to Order 26 of the High Court (Civil Procedure) Rules, 1987.

The question I incline to ask becomes this. Was the action by the respondent, qua applicant in the court below, [and a motion is an action see Kiwi Polish Co. v. Kempthome (1922) NZLR 177) to “amend” the writ of summons in the context of the reliefs sought or, for a “joinder” simpliciter, anything other than an action for an amendment? The word or term, “amendment” is a simple English word. It is in the noun form. In its verb-form, it is “to amend.” It derives from the Latin words “e” or, “ex” (out) and, “mendum” (fault). Hence, the verb “entendare” meaning, “to free from error or fault,” “to correct”. “to improve” or, “to alter”. But see the Chambers Twentieth Century Dictionary page 39. In the context of the application, “sese ipse “, the affidavit in support of it, was all the respondent, qua applicant, seeking for from the court below any thing other than “to improve” or, “to correct” or, “to free from fault” the writ of summons after it had been issued? Speaking for myself, I know of no error or blunders which if not fraudulent or intended to over-reach, the court ought not to correct provided it can be done without prejudice to the other party. And in my view of the application, and the affidavit in support thereof, the applicant need not be visited with the error or mistake of her former solicitors, so that any error of theirs in commencing the action by way of the writ of summons issued, becomes incurable.

Of course, I had referred to the “quo warranto” for the application. But the Rules are only but a hand-maid to the law. They assist the court to achieve justice, substantial justice between the parties. They are not there to hamper justice or to clog the wheels of justice. Therefore, in my view, provided there exists in the Rules a power, the court cannot be hamstrung in their duty to do justice merely because a particular Order of the Rules is not mentioned, “eo nomine” on the notice of motion by the applicant. Of course, too, a party seeking the discretionary power of the court to be exercised in its favour needs to bring itself within the provision of the Order and rule it seeks to rely on. But this, in my opinion, does not mean that the “hands” of the court are “tied” to the “quo warranto” expressed on the notice of motion.

Noticeably, the “quo warranto” as expressed on the notice of motion does not mention Order 5 of the Rules. The Order is headed “Writ of Summons”. The relief No. (a) sought for employed the conjunction “and” more than twice. There is a provision in the Rules that all persons having an interest in the subject matter of litigation ought to be parties or plaintiffs. And a writ of summons once issued, no corrections or amendment thereto would be valid unless made with leave of court. Neither would the capacity endorsed on the writ in which the action is brought be changed or corrected save by the order of court. And that will be, in my view, an “amendment” in that regard. This becomes significantly so because Order 5, rule 1 of the Rules provides:-

“1. Before a writ is issued it should be endorsed –

(a) where the plaintiff sues in a representative capacity with a statement of the capacity in which he sues and

(b) ……

Now. the question arises:-

Q(1):- Does Order 5 in any of its sub-rules expressly provide for an amendment to the endorsements on the writ after it has been issued?

Q.(2):- Where, as in the present application, the plaintiff/applicant wishes to prosecute the action in a capacity other than in a personal capacity, after the writ has been issued, does such a party sit down, fold its hands and do nothing to invoke the power of the court to free the writ from the error of faults or, to improve it?

Q.(3):- And if as it is obviously that Order 5 contains no amendment provision in itself and by itself, would the court also fold its hands on an application thereto to amend the writ?

Clearly, from the nature of the application and the affidavit evidence in support of it, the family of the late Chief William Igbinakorobofori family to which both the respondent and Mr. Nathan Dagogo-Hart belong, is desirous of prosecuting the action already filed by the plaintiff. And it is this, the family wants to do through its representatives. Mr. Nathan Dagogo-Hart and the respondent herein. The above opens the doors to me to look at an existing Order and rule of the Rules. This is Order 11, rule I, of the Rules. It reads:-

“All persons may be joined in one action as plaintiffs in whom any right to relief (in respect of or arising out of the same transaction or in a series of transactions) is alleged to exist whether jointly …..

In the absence of any amendment provision to a writ of summons, there is section 2 of the Rivers State Edict No.3 of 1987. The Rivers State High Court (Civil Procedure) Rules 1987 are made under the enabling Edict No.3 of 1987. Section 2 reads:-

“Where a matter arises in respect of which no provisions or no adequate provisions are made in the Rules, the court shall adopt such procedure as will, in its view, do substantial justice between the parties concerned.”

In the face of the application, the reliefs therein sought for and the affidavit evidence, unchallenged, would the court fold its hands, reject the application merely because Order 26 of the Rules headed “Amendmentâ€? relied on, does not talk of amendments to a writ of summons or endorsements thereon? So to hold would be to fetter justice and make the Rules the “master” of the law.

Section 2 of Edict No.3 apart, there, however, exists Order 47 of the Rules. Rule 1 to Order 47 reads:

“The court may in all causes and matters make any order which it considers necessary for doing justice whether the order has been expressly asked for by the person entitled to the benefit of the order or not.”

In my view of section 2 of Edict No.3 of 1987 (supra) and Order 47 of the Rules there is inherent in the court below that power or discretion to do justice in any deserving case. This power, in my respectful opinion, cannot exclude a power to amend the writ in the terms of the reliefs sought for by the application of the plaintiff/applicant. To hold the court restricted to Order 26, rule 1 of the Rules would be, in my view, to hold both court and justice hostage in all the circumstances of the application. That ought not to be.

The contention of the appellant constitutes, in my view, a challenge to the H exercise of the court below of its discretion in granting the reliefs sought for. What afterwards is discretion, but “Legalis discretio est scire per legem quid sit justum”, a legal discretion to do what is just, judicious and judicial. Normally the appellate court is usually reluctant to interfere with the exercise of its discretion by the court below. But an appellate court has a right and a duty to inquire whether or not the discretion of the lower court was rightly exercised. And a judicial discretion ought to be founded upon the facts and circumstances from which it must draw a conclusion governed by the rules to do justice in any given case. The facts do exist in this particular case giving rise to the appeal.

In the particular circumstance of this case, I have unsuccessfully searched for any justifiable reason for this court to interfere with the “decision” by the court below. I do not find any merit in the present appeal. The issues as formulated by the appellant ought to be resolved, each, against the appellant and. eo ipso, in favour of the respondent. I do so resolve the issues. The ground of appeal from the issues as distilled therefore fails. It is dismissed.

The appeal is dismissed accordingly. There shall be costs in favour of the respondent against the appellant assessed and fixed at N2000.00.

Other Citations: (1998)LCN/0363(CA)