Mr. Ignatius Nzekwu & Anor V. Mr. Ikem Oranye & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment)

This is an interlocutory Appeal against the Ruling of the Honourable Justice Celine o. Nweke (Administrative Judge) of the Onitsha Judicial Division of the Anambra State High Court of Justice, which Ruling was delivered on the 19th of July 2012, granting the Respondents’ Application for leave to amend their Statement of Defence; an order deeming the Amended Statement of Defence – Exhibit B annexed to the Motion as properly filed and served and leave of the court to file list of additional witnesses as per Exhibit ‘C’ as well as Additional Document and written Statements on Oath – Exhibits ‘D’ ‘E’ ‘F’ and ‘G’.

It would be recalled that the grant of the above prayers was sequel to a Motion on Notice brought pursuant to Order 24 Rules 1 to 5 of the High Court of Anambra State (Civil Procedure) Rules, 2006.

The facts leading to this Appeal as stated by the Appellants are that they instituted an action against the Respondents on the 2nd day of August, 2011 and upon being served with the originating processes, the Respondents filed their Statement of Defence, accompanied by written depositions, List of documents etc, on the 12th of December, 2011. The Appellants also upon receipt of the Statement of Defence and accompanying documents filed their Reply thereto on the 1st day of February, 2012. Pages 1 – 29 of the Records refer.

Upon being served with the Appellants, Reply, the Respondents filed an Application by way of motion as earlier highlighted seeking to amend their statement of Defence but the court, according to the Appellants, refused the Appellants leave to consequentially amend their Reply. Pages 30 – 105, 119 – 122 and 123 – 132 of the Records refer. Being dissatisfied with the Ruling of the learned trial Judge, they have appealed to this Honourable Court by a Notice of Appeal with three Grounds dated and filed on the 1st of August, 2012.

The gravamen of the Appellants’ case is that the Statement of Defence cannot be amended so as to respond to the Reply as the High Court (Civil Procedure). Rules of Anambra State 2006, make no provision for a statement of Defence to answer to a Reply, which was filed, subsequent to it. They (Appellants) therefore posit that the trial Court erred in law in allowing the amendment and further erred, when it refused the Appellants to make a consequential amendment to it.

The case for the Respondents on the other hand, is that in the course of the motion for amendment, the Appellants/Plaintiffs did not file any Counter-affidavit but relied on a Written Address on point of law and urged the Court to refuse the Application as it would amount to a response or Reply to a Reply which is the aspect of the case of the Appellants at the lower court upon which the Appeal is predicated. According to the Respondents, they in their response on point of law relied on Order 15 Rules 15 and 19, order 17 Rule 14 and Order 5 of the Anambra State High Court (Civil Procedure) Rules, 2006 as additional authorities to Order 24 Rules 1 – 5 on which Application for amendment was originally anchored.

One other point that was made by the Respondents on the statement of the facts of the case is that upon the Ruling of the Court on the motion, the Appellants, in the absence of counsel to the Respondents/Defendants made an oral application for leave to file a further Reply but the Court directed that the application should be by way of motion and not that the learned trial Judge refused the Application for consequential amendment as purported by the learned Counsel for the Appellants.

The Record of Appeal having been transmitted hereto and the Appeal entered, the learned counsel for the respective parties exchanged their Briefs of Argument in line with our Rules. In the Brief of Argument settled by Chudi Obieze Esq. on behalf of the Appellants, he distilled a sole Issue as calling for determination couched thus:

“Whether the trial High Court, was right in allowing the amendment of the Statement of Defence, in order to respond to Issues, allegedly newly raised, in the Reply to the Statement of Defence?”

As for the Respondents, Professor C.O. Obiozor of Counsel who settled their Brief of Argument formulated two Issues for determination as follows:-

“1. Whether there was a decision of the lower court on the oral request for leave to file further Reply by Counsel for the Appellants to ground an Appeal.

“2. Whether a Defendant could adduce additional pleadings after Reply by way of amendment of the Statement of Defence and whether such amendment is permissible under Order 24 of Rules 1 – 5, Order 15 – Rule 15; Order 15 Rule 19(2) and Order 17 Rule 14 of the High Court of Anambra State (Civil Procedure) Rules 2006”.

ARGUMENTS OF COUNSEL ON THE ISSUES FORMULATED.