Ndubuisi Okeke & Ors V. Engr. Obiukwu Okeke & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment)

This is an interlocutory appeal by the plaintiff/appellants against the decision/Ruling of I. A. Umezulike, the Chief Judge of Enugu State on 10th day of May, 2010 granting an application for Amendment of the Joint Statement of Defence of the defendants/respondents.

The background facts leading to this appeal are that after parties concluded their evidence, the court ordered for written addresses and the matter was adjourned for adoption of written addresses. On the 1st day of March 2010, parties having filed and exchanged final written addresses adopted same whereupon the case was adjourned to the 26th day of April, 2010 for judgment.

On the 4th day of March 2010, the Respondents filed and served on the appellants an application to amend their joint statement of defence by introducing a new paragraph 8(i) paragraph A – L. In reaction to the application, the Appellants filed a counter-affidavit with a supporting written address in opposition thereof dated 15th March, 2010. Arguments by parties on the said application was taken by court and on the 10th May, 2010 delivered its ruling allowing the application of the amendment of the Defendants/Respondents joint statement of Defence.

Being dissatisfied with the decision of the lower court, the appellants lodged an appeal to this court vide Notice of Appeal dated and filed 24/5/2010 containing two grounds of appeal.

In compliance with the rules of court, parties filed and exchanged briefs of argument. Appellants’ brief of

argument settled by Chris O. Ogbu Esq. was dated and filed 29/10/2010. The Respondents’ brief of argument settled by Vincent I. Asika Esq., was dated 26/11/2010 and filed on 29/11/2001. The Appellants’ reply brief was dated 22/02/2011 and filed on 23/02/2011. While the response to the Respondents’ preliminary objection was granted on 13/10/2011.

When the appeal came up for hearing, Respondents’ counsel intimated the court that he filed a notice of preliminary objection on 29/11/2010 and the arguments canvassed in respect of same are embedded in the brief of argument. Counsel then identified pages 2-3 of the Respondents’ brief and adopts the said argument. He urged the court to strike out the appeal. Learned counsel for the Appellants informed the court that the appellants’ response to the preliminary objection is contained in a separate reply brief. He adopts the response and urged the court to discountenance the objection and determine the appeal on merit.

As regards the substantive appeal, learned counsel for the appellants’ adopted the appellants’ brief of argument dated and filed on 29/10/2010 as well as the reply brief and urged the court to allow the appeal. Respondents’ counsel similarly adopted the respondents’ brief of argument as canvassed at pages 4 – 12 of the brief and urged the court to dismiss the appeal as lacking in merit.

Appellants raised a sole issue for determination as follows:-

“Whether it was a judicial and judicious exercise of discretion to have granted the amendment sought at the stage and in the circumstance in which the application was brought”.

The Respondents on their part also raised one issue for determination thus:-

“Whether the learned trial judge acted properly or judiciously and judicially in granting an amendment to the respondents’ joint statement of defence to be in line with the evidence already led at the trial by their witnesses which is on the record at the stage which he did so”.

Before I delve into the merit of the appeal, I find it necessary to first consider the preliminary objection raised by the Respondents against the hearing of this appeal. It is trite law that an objection to the hearing of an appeal must be taken first. See Taiye v. Abioye (2003) 4 NWLR (Pt.810) 397 and Osun State Government vs. Olami (Nig) Ltd. (2003) 7 NWLR (Pt.818) 72.