Nze Benson Obialor & Anor V. Josiah Uchendu & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A (Delivering the Leading Judgment)

The Appellants commenced this suit at the lower court on 28/5/10 with their writ of summons, statement of claim, written deposition of Nze Benson Obialor and list of witnesses. By a motion dated 20/8/10 but filed on 23/8/10, the Appellants applied to amend their statement of claim by bringing in a 3rd claimant and other amendments. By a ruling made on 11/10/10, the learned trial judge granted the amendment of the statement of claim save the request to bring in a 3rd claimant.

Again, by a motion on notice dated the 21st October, 2011 and filed on 26th October, 2011, the Appellants sought to further amend their statement of claim. The further amendment is to bring in a witness and a document annexed to the affidavit in support said to be a judgment of the District Court of Isuikwuato as well as new facts which emerged after the 1st Claimant had testified.

The said motion on notice was argued on 9th December, 2011 and the Respondents opposed the said application having filed a counter affidavit to that effect. The learned trial judge, after hearing both parties on the motion, made an instant ruling refusing the application for lacking in merit. The said Ruling was delivered on 9th December, 2011 as contained on pages 70 -71 of the record of appeal.

Dissatisfied with the said Ruling, the Appellant filed notice of appeal on 16th December, 2011. The notice of appeal alluded to above contains five (5) grounds of appeal out of which the learned counsel for the Appellants, Chief Nnamdi D. Uchendu has distilled three issues for the determination of this appeal. The five issues are contained on page 2 of the brief of the Appellants which was adopted by learned counsel for the Appellants on 8/4/13 when the appeal was heard. They are:

“(a) Whether the Learned Trial Judge was right in refusing the Appellants’ application to further amend their statement of claim on the ground that the Appellants ought to have determined from the onset what to aver in their pleadings and nor to omit facts and later seek to bring them in by an amendment and turn the Court’s Record into a patch work. (Ground 1)

(b) Whether the learned trial judge was right to refuse the Appellants’ application to further amend their statement of claim on the ground that the Appellants had previously been granted leave to amend their statement of claim relating to the Traditional History of the Appellants’ People. (Ground 2).

(c) Whether the learned trial judge was right not to look at the document sought to be introduced by the further amendment of the statement of claim and to base his decision to refuse the amendment sought on the conjecture that the said document was the same as the document previously sought unsuccessfully to be tendered in the course of proceedings by the Appellants. (Ground 5).”

In the brief settled on behalf of the Respondents by Chika Odoemenam Esq, two issues are distilled. The issues are as follows:

“i) whether the appellants’ interlocutory appeal, as constituted, is not incompetent for want of leave to appeal.

ii) whether the appellants have adduced enough grounds to justify this Honourable Court to interfere with the exercise of discretion of the trial court refusing the application of (sic) amendment.

Before I take any further step in this appeal, I wish to observe that the learned counsel for the Respondents has formulated two issues which I cannot find expression on any ground of appeal contained in the notice of appeal. And for the avoidance of doubt, I hereby reproduce the five grounds of appeal, without their particulars. They are:

“GROUND 1

That the learned trial judge erred in law when he held that a party to a suit must from the onset, determine what to aver in his pleadings and not to omit facts and later seek to bring them in by an amendment which may turn the court’s record into a patch work by which holding the learned trial judge came to a wrong decision of refusing Appellants’ application to further amend their statement of claim.