Patrick Izuagbe Okolo & Anor. V. Union Bank Of Nigeria Limited (1999)

LAWGLOBAL HUB Lead Judgment Report

O. EJIWUNMI J.S.C.

The unique question raised by this application is whether it is proper to allow the applicants to further amend their pleadings before the main appeal is heard in this court.

By a Motion on Notice dated 4th day of November, 1998 and filed in this Court on the 19th November, 1998, the applicants are asking for the following order or Orders:-

1. “Granting Leave to further amend the Amended Statement of Claim filed in this case in line with evidence already led and contained in the records of Appeal as underlined in Red herein.
2. Deeming the attached proposed further amended Statement of Claim attached to the supporting affidavit herein and marked as Exhibit ‘P10′ as duly filed and amended; the appropriate filing fees have been paid.
3. Directing the said pleadings to be part of the Records of appeal herein in place of the existing amended Statement of Claim at pages 42A-42G and for such further Order or Orders as this Honourable Court may deem just and expedient to make in the circumstances.”

In support of this Motion, the applicants filed a seven paragraphed affidavit deposed to by one James Ukpanya, a litigation Clerk in the firm of Okiemute Mudiaga Odje & Co., who are the applicant’s Solicitors. As I consider that paragraphs 2, 3, 4, 5, & 6 of the said affidavit are relevant, they are reproduced as follows:-

2. “The appellants/applicants were unsuccessful at the Court of Appeal, Benin-City and expediently sought and successfully obtained the leave of that Court to appeal against that judgment of which Records of Appeal the parties herein diligently assembled and had same transmitted to this Honourable Court.
3. Going through the said Records of Appeal, the Head Counsel of the said appellants/applicant’s Solicitors, Okiemute Mudiaga Odje Esquire has informed me and I verily believe him, that there is an imperative need to further amend the (sic) Statement of Claim filed in this case in order to bring it in line with (sic) the evidence already contained in the Record of Appeal particularly the evidence of the 1st Appellant/Applicant at pages 50-60 of the said Records of Appeal.
4. I am still informed as aforesaid and I verily believe the same, that this Appeal can only be effectually and properly presented with full force and steam if the proposed amendment for which no further evidence is required is granted by this Honourable Appellate Apexian Court. I attach hereto and mark as Exhibit “P10″ a copy of the proposed further amended Statement of Claim.
5. I am still further informed as aforesaid and I verily believe that having regard to the evidence on record for which this amendment is brought in line with, the Cross-Appellant/Respondent will suffer no injustice whatsoever and can always be assuaged in costs to enable this last Court completely, effectually and fully adjudicate upon the Real and Live issues in this appeal.
6. The 1st appellant/applicant has informed me and I really believe him that the appellants/applicants are anxious, enthusiastic, willing and able to pursue this appeal to its logical conclusion of this appeal if and when this Honourable Apexian Court grants the order humbly sought on the attached motion paper.”

Before I refer to the proposed amendment, it is necessary to set down the relevant paragraphs of the Counter Affidavit filed in opposition to this application. This Counter-Affidavit was deposed to by one F.I. Agboroh Esq, Legal Practitioner in the law firm of E.L. Akpofure (SAN) & Co. Solicitors to the Cross-appellant/Respondent. The relevant paragraph of the said Counter-Affidavit reads thus:-

“(3) That my principal in Chambers, Chief E.L. Akpofure SAN, had gone through the entire record and has informed me and I verily believe that:-

(a) The amendment sought is over reaching.

(b) The cross-appellants/respondents will be prejudiced if this application is granted.

(c) The cross-appellants/respondents herein shall be duty bound to lead evidence to controvert or challenge the new averments and the new reliefs sought to be amended by the appellants.

(d) That the said amendment is an attempt to rewrite both the judgments of the trial Court and the Court of Appeal.

(e) That the amendment sought in the proposed amended Statement of Claim at this stage is not in line with evidence as claimed by the appellant.

(f) That the gravity of the said application will automatically lead to the respondent herein amending their own Statement of defence, and thereafter calling oral evidence.

(g) It will be in the interest of justice for this application to be refused at this stage.”

At the hearing of the application, E.L. Akpofure Esq. SAN for the respondent opened his argument by referring to the Counter-Affidavit he had filed on behalf of the respondent to oppose the application. The learned Senior Advocate for the respondents then referred the Court to paragraphs 13. 18(j), 21(d), of the amended Statement of Claim to support his submission that by those paragraphs, the applicants had pleaded and given evidence on the suspense account which they were operating with the respondent. (See page 42 at lines 6-27 of the Record of Proceedings).