Download PDF
REPRESENTATION Chief (Dr) Alfred O. Eghobamien SAN with S I. Ameh SAN for the Claimant Solomon Umoh SAN for the 1st & 3rd Defendants S. A. Mustapha Esq for the 2nd & 4th Defendants R U L I N G The claimant brought a motion on notice to amend her originating motion in line with her proposed Exhibit A and a deeming order and the nature of the amendment is to bring to the court to enable the court determine all the issues involved in the dispute and the claimant sought to add three additional reliefs. 2nd and 4th Respondents filed a 4 paragraph COUNTER AFFIDAVIT on 27th February, 2017 and dated same day, deposed to by Jacinta Anyanwu (Miss). 2ND AND 4TH RESPONDENTS’ WRITTEN ADDRESS ON THE APPLICANT’S MOTION FOR AMENDMENT OF ORIGINATING MOTION ISSUE Whether this HonourabLe Court can grant the amendment without causing injustice to the 2nd and 4th Respondents? Learned Counsel to the 2nd and 4th defendants submitted that the amendment sought in the Proposed Amended Originating Motion is seeking to revive a cause of action which is statute barred by Section 2(a) of the Public Officers Protection Act (POPA); Ajila v. Aihaji Lawal (2005) ALL FWLR (Pt. 278) page 1158 at 1166-1168.He submitted that an amendment that would have the effect of reviving a cause of action that was barred at the time of the amendment would not be granted because it would take away the Defendant’s right which was vested and therefore prejudicial to him and he would be overreached. Hajja Buba & Ors. v. Hajja Bukar (2003) FWLR (Pt. 183) pages 38 - 93 - 94. C.A; UBA PLC v. Aihaji Abdullahi (2003) FWLR (Pt. 182) 1941 at 1954 CA. The 1st and 3rd Respondents filed an 11 paragraph COUNTER — AFFIDAVIT IN OPPOSITION TO THE APPLICANT’S MOTION ON NOTICE FOR AMENDMENT on 28th February, 2017, deposed to by Santos Eneja, Esq. 1ST AND 3RD RESPONDENTS’ WRITTEN ADDRESS IN SUPPORT OF COUNTER AFFIDAVIT. ISSUE Whether or not the respondents will be overreached by the amendment sought by the applicant particularly, the new reliefs introduced, if the amendment sought is granted. Learned Counsel submitted that in determining whether or not to grant application for amendment of processes before the court certain factors must be considered viz: (a) the attitude of the parties in relation to the amendment; (b) the nature of the amendment sought in relation to the suit; (c) the question in controversy; (d) the time when the amendment is sought1†Akaninwo v. Nsirim (2008) All FWLR (pt. 410) 610 at 656 paras. 8-0 And that the same Supreme Court listed certain circumstances when application for amendment cannot be granted as follows: (1) If it will entail injustice to the respondent. (2) If the applicant is acting mala fide. (3) If the application is designed to overreach the respondent. (4) If the blunder of the applicant has done some injury to the respondent which cannot be compensated by cost.†Akaninwo v. Nsirim (supra). He submitted that an amendment that would have the effect of reviving a cause of action that was barred at the time of the amendment would not be granted because it will take away the Defendant’s right which was vested and therefore prejudicial to him and he would be overreached. Hajja Buba & Ors v. Hajja Bukar (2003) FWLR (Pt. 183) pages 38—93 — 94. C.A. UBA PLC v. Aihaji Abdullahi (2003) FWLR (Pt. 182) 1941 at 1954 CA. APPLICANT’S REPLY ON POINTS OF LAW IN OPPOSITION TO 1ST AND 3RD 2nd and 4th RESPONDENTS COUNTER AFFIDAVIT Counsel argued that the grounds provided under the rules of this Court for refusal of application for amendment do not exist in the instant application. On the contention of the 1st and 2nd Respondents citing Akaninwo Vs. Nsirim (2008) All FWLR (Pt. 410) 610 at 650 para B – D, that the amendments sought are overreaching and brought male-fide, counsel submitted that the Supreme Court decision cited by 1st and 3rd Respondents is on all fours with allowing this application in the interest of justice. Furthermore, that the reliefs sought if granted are neither overreaching nor capable of occasioning injustice nor were brought mala-fide since argument in respect of same have already been canvased and exchanged by both the 1st and 3rd, and 2nd and 4th and the Applicant. He submitted that the Supreme Court in Akaninwo Vs. Nsirim ( Supra) at p. 659 para D - F on meaning of overreaching, held as follows; “Overreach means to circumvent, outwit or get the better of by cunning or artifice; that is by a clever trick. In the context of amendment of pleadings, it connotes or conveys a situation where a party fully aware of the case of the adverse party, applies to amend his pleadings with trick or craftiness, to put the respondent or adverse party in a state of hopelessness helplessness that he cannot meaningfully respond for the good of his caseâ€. It is counsel’s submission that where the wordings of a statute is clear and unambiguous, the Court ‘in interpreting ought to accord the statute the Literal and ordinary meaning. Also, that, in interpreting the provisions of a statute, judges can ascertain the mischief the Law makers sought to cure vide an enactment. PDP & Anor vs. INEC & Ors (2001)1 WRN I at 40. He argued that to hold otherwise would be to read into section 2(a) of Public Officers Protection Act words and meanings outside the purview and the genera[ intendment of the Act and that the attitude of Court in interpreting statutes that outs its jurisdiction is to construct same strictly. Okara vs. Ndili: (1989)4 NWLR (Pt. 118) 700 at 711. Counsel contended that to hold otherwise would be tantamount to using Section 2(a) of Public Officers Protection Act to crystalize an originating process into a rock of Gibraltar that cannot be moved by an amendment. That it would be tantamount to reading into section 2(a) of Public Officers Protection Act words which are not found there. NEPA VS. ATUK PER (2001)1 NWLR (PT. 693) 96 AT 108- 109. On the 15th March 2017 parties adopted their respective written addresses, and adumbrated their respective positions accordingly Court’s Decision Having carefully summarized the position of all sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of all the parties and their written submission are herewith incorporated in this ruling and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether the court can grant the Applicant’s application for amendment having regard to the position of the law and in the circumstances of this suit. The Applicant by a motion on notice is seeking an order of this court to amend her Originating Motion in order to harmonize all the processes filed in the suit and include some additional reliefs to ensure that the Court has a full grasp of all the issues in controversy between the parties. To wit the Applicant in her proposed amendment added three additional reliefs and modified one existing relief. The 2nd and 4th defendant and 1st and 3rd defendants both filed independently Counter affidavits opposing the application To the 1st and 3rd defendants the Applicant’s application for amendment infringes on the statutory provisions and bound to over reach if allowed, contending that the applicant is introducing the reliefs outside the 3 month statutory period and in consequence evoking the doctrine of relating back theory. Urging the court to refuse the application in the interest of justice. To the 1st and 3rd Relies, the amendment would in effect revive a cause of action which is statute barred And that an amendment that would have the effect of reviving a cause of action that was barred at the time of the amendment should not be granted because it would take away the Defendant’s right which was vested and therefore prejudicial to him and he would be overreached. Urging the court to uphold the provision of Order 26 (2)(d). The position of the law as regard amendment is that “a court is bound to grant leave to amend a pleading If the amendment becomes necessary for the purpose of determining the real question or questions in controversy between the parties, unless where the applicant is acting malafide or where by his blunder, he has done some injury to the respondent which cannot be compensated for by costs or otherwise. In other words, the discretion ought to be exercised so as to do what justice and fair play may require in the particular case. NIGERIAN DYNAMIC LTD. V. DUMBAI (2002) 15 NWLR (PT. 789) 139 AT 154, PARAS. C-D, per Obadina, JCA The case went on “An amendment of pleading for the purpose of determining the real question in controversy between the parties ought to be allowed at any stage of the proceedings unless such amendment will: Entail injustice or surprise or embarrassment to the other party; or The applicant is acting malafide; or By his blunder, the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise. In other words, the discretion ought to be exercised so as to do what justice and fair play may require in the particular case. ADETUTU V. ADEROHUNMU (1984)1 SCNLR 515 (P.153, PARAS. F-G) Looking at the proposed reliefs I am satisfied that the intended proposed reliefs create new causes of action to which the defendants have contended that the theory of relating back would occasion them hardship and loss of an statutory defence. It is the law that no amendment is permitted by a court that would deny a party its statutory right Additionally, in DR ANDY UBA V. (PRINCE) HON. NICHOLAS UKACHUKWU & ANOR [2013] LPELR-22045(CA), Okoro, JCA (as he then was) held that it is trite that an amendment of a writ of summons or pleadings which will have the effect of reviving a cause of action which is barred by statute of limitation at the time of the amendment is not permissible because it has the tendency of taking away the defendant’s right which has vested in him and would be prejudicial to him. The law is that as relates to joinder of parties or joinder of causes of action, Courts apply the “The No Useful Purpose Theoryâ€, which is to the effect that no useful purpose would be served by relating back the date of the joinder to the date of commencement of the substantive action (‘The Relation Back Theory’). This is because to hold otherwise would deprive a party of a vested right of a defence based on a statute of limitation. See the Court of Appeal decision in ALHAJI M. BALOGUN V. PANALPINA WORLD TRANSPORT (NIG.) LTD & ANOR [1999] 1 NWLR (PT. 585) 66 AY 77 – 84. This rule finds support in another Court of Appeal decision in ASHIMIYU ODUOLA & ORS V. CHIEF A. B. OGUNJOBI [1986] 2 NWLR (PT. 23) 508 AT 509 where it was held as follows – The Court has always refused to allow a party or a cause of action to be added where, if it were allowed, the defence of the Statute of Limitations would be defeated. The court has never treated it as just to deprive a defendant of a legal defence. If the facts show either that the particular plaintiff or the new cause of action sought to be added are barred, it is impossible for the Court to disregard the statute. Further support for this principle of law can be found in the English decisions in MABRO V. EAGLE STAR AND BRITISH DOMINIONS INSURANCE COMPANY LTD [1932] ALL REPRINT 411 AT 412 – 413 and LIFE V. PEASLEY [1980] 1 ALL ER 623 AT 640 – 643. SEE ALSO THIS COURT’S DECISION IN HON. PETER EKUN & ORS V. AKOKO-EDO LOCAL GOVERNMENT, EDO STATE & ANOR UNREPORTED SUIT NO. NIC/LA/34/2011 the ruling of which was delivered on July 9, 2013. These authorities especially ASHIMIYU ODUOLA & ORS V. CHIEF A. B. OGUNJOBI Supra support the stance that causes of action can be severed for purposes of determining whether they are caught up by the limitation laws. The test of if the amendment of a writ of summons or pleadings in a pending case would revive a cause of action that is statute-barred at the time of the amendment is if the claimant were to file the reliefs as a new suit would they not be caught up by the limitation law. See Unreported SUIT NO. NICN/LA/89/2014 ISAAC OGHUVBU VS. CHEVRON TEXACO CORPORATION delivered May 18th 2016 I therefore hold that this application would deny the defendants a statutory defence thereby occasioning in justice against the defendant and is overreaching. Therefore on the authority of the following decisions ASHIMIYU ODUOLA & ORS V. CHIEF A. B. OGUNJOBI Supra HON. PETER EKUN & ORS V. AKOKO-EDO LOCAL GOVERNMENT, EDO STATE & ANOR UNREPORTED SUIT NO. NIC/LA/34/2011 and unreported SUIT NO. NIC/LA/626/2013 MR. ADEOLA AYOOLA SOSANWO VS. CONPETRO SERVICES LIMITED & 3 ORS. December 17, 2014 This application is hereby refused and is accordingly dismissed. I make no order as to cost. Ruling is entered accordingly. …………………………………… Hon. Justice E. N. Agbakoba Judge