Smart Okundaye V. Osadebamwen Moses (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A (Delivering the Lead Ruling)

On the 18th February, 2013 when this matter was called up for hearing of the Motion on Notice dated and filed 11th April 2012, the learned counsel E.U. Etukudo, Esquire represented the Respondent/Applicant, while O.I. Usunobun Esquire represented the Appellant/Respondent.

The three (3) reliefs sought on the motion paper are as follows:

(1) An order granting leave to the Respondent/Appellant to amend his statement of claim contained at page 4, 5 and 6 of the Record of Appeal in the manner formulated and underline in red in the proposed Amended statement of claim annexed to the affidavit in support of this motion as Exhibit A.

(2) An order enlarging the time within which the Respondent may file Respondents brief of argument annexed as Exhibit B to the affidavit in support of this motion, the time allowed by rules of court having expired.

(3) An order deeming as properly filed and served the said proposed Amended statement of claim and Respondent brief of argument, the appropriate filing fees having been paid.

The Grounds for the Reliefs sought:

GROUNDS FOR RELIEF ONE

1. By the provision of order 4 rules 1 of the Court of Appeal Rules 2011, this Court has power to amend the Statement of Claim to meet the justice of the case.
2. The Record of Appeal is now before this Court.
3. The amendment is to bring Respondent Statement of Claim in line with the evidence giving by PW2 at the hearing as contained at page 19 line 9 to 10 of the Record of Appeal, where he said ‘The cost of the bleached artificial teeth is N50.000.00 per one. The total will cost N250,000.00, and page 15 line 28 to page 17 lines 1 and 2 of the said record where he said ‘I pray that the court to ask the defendant to pay me as paragraph 18 of my statement of claim to pay the expenses of my treatment …’
4. In the case of LAGURO V. TOKU (1992) 2 NWLR (PT 223) page 278 at 294 para. H the court held,

‘Justice demands that in order to determine the real matter in controversy, pleadings may be amended at any stage of the proceedings even in the Court of Appeal or this court to brine them in line with the evidence already adduced provided the amendment is not intended to over reach and the other party is not taken by surprise and the claim and the defence of the other party would not have been different had the amendment been averred when the pleading was first filed.’

5. In ALSTHOM S.A. V. SARAKI (2004) 14 NWLR (PT 687) 415 at 428 C-D Achike JSC said:

‘leave to amend may be made and granted at any stage of the proceedings. It is however important to seek such leave as soon as the defect in the proceedings is detected. Notwithstanding this guide, an amendment may be sought and if appropriate granted on appeal if it is to amend the record of the trial court in line with facts proved before the trial court and the decision.’

6. The amendment sought does not require further evidence to prove the said amendment.
7. The application if granted would not over reach the Appellant as it is intended to utilize the evidence of PW2 giving during trial without more.

GROUND FOR RELIEF 2

1. Paragraph 2 sub paragraphs (h) to (L) of the Respondent/Applicant affidavit in support of this application stated facts for the default in filing Respondent brief within time.
2. The said default was not in any way occasioned by the Respondent/Applicant.

GROUND FOR RELIEF 3

1. The fees having been paid, it will be in the interest of justice if the Amended Statement of Claim and the Respondent brief are deemed as properly filed and served, to avoid further delay in the hearing of this case.
2. Deeming the Amended statement of Claim and the Respondent Brief of argument as properly filed and served will not occasioned any injustice to the Appellant.

The said motion was supported by an affidavit of three (3) paragraphs.

In arguing the motion learned counsel to the Respondent/Applicant, on the first ground submitted that by the provision of Order 4 Rule 1 of the Court of Appeal Rules 2011, this court has power to amend the statement of claim to meet the justice of the case as Record of Appeal is now before this court. The amendment is not to introduce new evidence but is merely to bring Respondents Statement of Claim in line with the evidence given by PW2 and PW4 during the trial at the High Court.