1.mrs. Monilola Afusat Adeniji (Beneficiary Of The Residuary Estate Of Adegbesan A. Adeniji, Deceased)
2. Ms. Oluwatoyin Adeniji
3. Ms. Omobolanle Adeniji
4. Ms. Abisola A. Adeniji
5. Mr. Morounfolu Adeniji
1. Ms. Elizabeth O. Adeniji
2. Ms. Aderenle O. Adeniji
3. Administrator-general & Public
Trustee Of Lagos State Court Of Appeal
Adamu Jauro, J .c.a. (Presided)
Rita Nosakhare Pemu, J .ca
Fatima Omoro Akinbami, J.ca (Read The Leading Judgment)
Wednesday, 20th February 2013
Whether the trial court has the jurisdiction to entertain the l” and 2nd respondents’ amendment; and whether in granting same it did apply the principle governing amendment of pleadings, and whether the trial court exercised its discretion, judicially and judiciously view of the appellants’ statement of defence.
Whether the filing of the motion on notice dated the 17th of April 2007 by the respondents for orders leave to amend; and the amendments themselves, the circumstances, did not constitute a grievous abuse of the court’s process.
Whether failure on the part of the trial court pronounce upon and/or make a determination on the issues of res judicata, want of jurisdiction and manifest abuse of process urged upon it by the appellants by reasons of the amendments sought by the responder and granted by the trial court; had not occasioned miscarriage of justice to the prejudice of the appellant Whether the decision and/or ruling of the trial High Court inclusive of the findings therein granting the respondents’ application for leave to amend and dismissing the appellants notice of preliminary objection thereon in the particular circumstances of this suit, was not perverse and ought to be set aside in their entirety.
The claimants/respondents filed an action against the defendant/appellant in which they claimed for:
“( 1) An order directing the defendants to render accounts of all the properties, corporeal and incorporeal which are part of the estate of Late Chief Adepoju Adeniji placed under her administratorship by the order of court dated 14th May, 2001 from May 2001 till date.
2. An order discharging the order of court dated 14th May, 2001 with respect to the claimants and ordering partition of the estate of Late Chief James Adepoju Adeniji under the supervision of an officer of this court and awarding to the claimants their due shares.
3. Any further order or directives as may be deemed necessary by this honourable court for the purpose of the above.”
In the course of the proceedings, the 2nd – 6th defendants/ appellants were added and joined as parties to the suit following application for joinder. Consequently, the claimants/respondents sought the leave of court to amend their pleadings. The 2nd – 6th defendants/appellants raised an objection to the application for leave to amend.
After hearing parties, the trial court granted the application for leave to amend and dismissed the preliminary objection thereon.
Aggrieved, the appellants appealed to the Court of Appeal.
In determining the application, the Court of Appeal considered the provisions of Order 24 rules 1 and 2 and Order 39 rule 1(1) of the High Court of Lagos State (Civil Procedure) Rules, 2004.
Order 24 rules 1 and 2:
“1. A party may amend his originating process and pleadings at any time before the close of pre-trial conference and not more than twice during the trial but before the close of the case.
2. Application to amend may be made to a Judge. Such application shall be supported by an exhibit of the proposed amendment and may be allowed upon such terms as to cost or otherwise as may be just.”
Order 39 rule 1(1):
“Where by these rules any application is authorised to be made to a Judge, such application shall be made by motion which may be supported by affidavit and shall state under what rule of Court or Law the application is brought”.
Held (Unanimously dismissing the appeal):
1. On Aim of amendment of pleadings –
The aim of amendment is usually to prevent the, manifest justice of the cause from being defeated or delayed by formal slips which arise from the inadvertence of counsel. It will certainly be wrong to visit the inadvertence or mistake of counsel on the litigant. However negligent or careless may have been the slip, however late the proposed amendments, it ought to be allowed if this can be without prejudice to the other side for step taken to ensure justice cannot at the same time and in the same breach be used to perpetuate an injustice on the opposite party. (Pp. 119-120, paras. H-B)
2. On When amendment of pleadings can be made –
An application to amend pleadings can be made any time before judgment. There are certain times when it can be allowed on appeal. There cannot be a better notice of the case a party intends to make than his pleadings. It is a notice and can never be a substitute for evidence required in proof of the facts pleaded. In the High Court, cases are fought on pleadings and parties are bound by their respective pleadings. Thus, the courts has the power to grant an amendment even if the amendment would add to the existing cause of action, substitute therefore a new cause of action, provided the additional or the new cause of action arises out of the same or substantially the same facts as are contained in the pleadings. A court is entitled and also has the duty to make formal amendments. The duty remains whether there is a formal application before the court or not and whether it is in the trial court or any of the appellate courts. [Obimiami Brick & Stone
(Nig.) Ltd v.A.C.B. Ltd. (1992) 3 NWLR (Pt.229) 260
referred to.] (P. 120, paras. B-E)
3. On When amendment of pleadings can be made –
Parties to an action can amend their pleadings during or after trial or even after judgment or on appeal and the court will allow same. [Egwa v. Egwa (2007) 1 NWLR (Pt. 1014) 71 referred to.] (P. 133,
4. On When application for amendment will be refused –
An amendment of pleadings will be refused where if granting it will entail injustice to the respondents or where the applicant is acting mala fide or where by his blunder the application has done some injury to the respondent which cannot be compensated by
costs or otherwise. (P. 133, paras. D-E)
5. On Power of court to grant amendment of pleadings –
Amendment can be effected in proceedings anytime before judgment is delivered. Although the application for an amendment is not the end in itself, but a means to seek the discretion of the trial court. The court is vested with jurisdiction and power which is derived directly from statement of claim, subject matter of the claim before the court, to either grant or refuse amendment sought. (Pp. 12G-121 , paras. G-A)
6. On Principle governing grant or refusal of application for amendment of pleadings –
An application for amendment of pleadings is not granted as a matter of course. The applicant must, as in all other applications, for the exercise of the court’s discretion, establish prima facie by affidavit evidence his entitlement to the prayer sought.
[Mamman v. Salaudeen (2005) 18 NWLR (Pt. 958) 478 referred to.] (P.12G, paras. E-G)
7. On Principles governing amendment of pleading-
By virtue of Order 24 rules 1 and 2, High Court of Lagos State (Civil Procedure) Rules, 2004, a party may amend his originating processes and pleadings at any time before the close of pre- trial conference, and not more than twice during the trial but before the close of the case. Application to amend may be made to a Judge. Such application shall be supported by an exhibit of the proposed amendment and may be allowed upon such terms as to cost or otherwise as may be just. (P. 131, paras. F-H)
8. On Principles governing grant of application for to amend pleading –
Consideration of an application for leave to am pleadings involves the exercise of discretion the court and it is the law that in exercising that discretion, the court must not only act judicially but also judiciously. The discretion is therefore to be exercised so as to do what justice and fair play may require having regards to the facts an circumstances of the particular case. [Mamman Salaudeen (2005) 18 NWLR (Pt. 958) 478 referrence to.] (Pp. 133-134, paras. G-A)
9. On Principle governing grant of application for amendment of pleadings –
Amendment of pleadings is usually allowed in order to allow parties put their cases in proper perspectives and litigants should not suffer from the blunders committed by their counsel. (P. 137, para. H)
10. On Need for particulars to be stated in pleadings where necessary –
By virtue of Order 15 rule 3(1), High Court of Lagos State (Civil Procedure), Rules, 2004, in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default or undue influence and in all other cases in which particular may be necessary particulars (with dates and items if necessary) shall be stated in the pleadings. [Soyanwo v. Akinyemi (2001) 8 NWLR (Pt. 714) 95 referred to.] (Pp. 132-133, paras. G-A)
11. On Requirement for valid plea of res judicata –
One of the pre-conditions for a valid plea of res judicata is that the judgment on which the plea is raised must be final. (P. 122, para. C)
12. On Determination of whether judgment is final for the purpose of res judicata –
The test whether an issue has been finally decided for the purpose of establishing a valid plea of issue res judicata does not necessarily always need to be tied to the question whether or not there has been an adjudication of the substantive suit on the merits.
This is because the question whether or not a court can reopen in a later case or even at a later stage in the same case, a question it has decided on a previous occasion arises in a variety of circumstances, the test most adequate for all occasions is whether the court which gave the decision can vary, reopen or set aside the decision. If it cannot, the decision is final. [Onyeabuchi v. INE.C. (2002) 8 NWLR (Pt. 769) 417 referred to.] (P. 122, paras. C-G)
13. On Whether plea of estoppel per rem judicatam can be raised as a preliminary objection –
There is no specification about the stage in the proceedings at which the plea of res judicata can or must be raised. Whether as a preliminary objection or at the completion of pleadings, everything depends on the facts and circumstances of the case.
[Fei Business Enterprises Ltd. v. Credible Finance and Investment Ltd. (2002) 30 WRN 32 referred to.] (P.
126, paras. C-F)
14. On What constitute abuse of judicial process –
Abuse of judicial process involves circumstances and situations of infinite variety and conditions.
Its one common feature is the improper use of the judicial process by a party to interfere with due administration of justice or in litigation. It
may occur in various ways. Such as instituting a multiplicity of action on the same matter between the same parties. It also occurs by instituting different actions between the same parties, simultaneously in different courts even though on different grounds where two similar processes are used in the exercise of the same right; for example a cross appeal and a respondent’s notice. [Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (Pt. 966) 205; Agwasim v. Ojichie (2004)
Pix 22; L-R: Representative of the Chief Justice of Nigeria, Justice Clara Ogunbiyi, Commissioner, Nigerian Law Reform Commission (nlrc), Prof. Cyprian Okonkwo, nlrc’s chairman, Justice Umaru Kalgo, representative of the Minister of Justice, Mr Chigbueze Okorie, representative of the Europian Union, Mr Emmanuel Gorin and former governor of Edo State, Prof. Oserheimen Osunbo, at the national workshop on the unification and reform of the criminal and penal codes (part 3) in Abuja, yesterday. Photo: NAN
Judiciary As Last Hope Of The Common Man
The judiciary is said to be the last hope of the common man. If there is no judiciary or where the judiciary is shut, the hope of the common man is dashed. If the saying is anything to go by, one is shocked that for nearly two months, the last bastion of hope of the masses was shut by striking workers, yet it has been business as usual. Both the government and the workers union are not bothered about the ugly situation.
Judiciary Staff Union of Nigeria (JUSUN) is on indefinite strike nationwide to protest the inability of both the federal and some state governments to grant financial autonomy to the judiciary. The independence of the judiciary is contained in Nigeria’s grundnorm, the Constitution of the Federal Republic of Nigeria 1999 as amended. Just as the positions of President and Governors of states are creations of the constitution, so also is the independence of the judiciary.
The truth of the matter is that JUSUN does not need to go on strike before the two tiers of government can implement the financial autonomy of the judiciary. It is a constitutional provision and political office holders swore to implement the spirit and letters of the Constitution.
Indeed, the judiciary and legislature are supposed to be independent as provided in the Constitution. When the three arms of government are independent, separation of powers is assured. This is because it will prevent fusion of powers which leads to tyranny. Fusion of powers smacks of dictatorship. In many states of the federation, governors have become absolute rulers.
It is becoming common that some state governors find it easy to shut the judiciary in order to have their way when unfavourable conditions tend to persist in their states.
For eight months, Rt. Hon. ChibuikeAmaechi shut the judiciary following an indefinite strike embarked upon by JUSUN. The closure of the courts caused a lot of hardship for both practising lawyers and litigants. Some lawyers who could not make ends meet died as a result. Litigants suffered lack of access to justice.
The indefinite strike embarked upon by JUSUN to demand financial autonomy is commendable because of its insistence on propriety obviously intended to prevent state chief executives from ruling on their whims and caprices.
But pathetically, many governors are unwilling to allow an independent judiciary that they will no longer hoodwink or coerce to do their biddings. The delay in implementing the autonomy is predicated on the fact that most of our leaders are bigger than the country’s institutions.
Hence, we have strong leaders and weak institutions. At the federal and state levels, the suppression of the country’s main institution has aided tyranny.
Consequently, the governors and even the president can afford to do anything unconstitutional and go scot-free with it.
The national and some state Houses of Assembly have become rubber stamps ready for the masters’ use anytime. Therefore, one hardly finds meaningful debates in the legislature except in states that have strong opposition. In the states, where all the members of the legislature come from the ruling party, meaningful debate is moonshine.
The fashionable term is “Carry go”. The term “Carry go” literally means treat as requested. There is obviously no alteration or modification. The application of “Carry go” has continued to worsen the state of our democracy. The governors or the president can afford to do anything he likes without any compunction. Consequently, the masses and indeed the electorate do not have a voice anymore. The voices of the electorate are lost in the legislators’ inefficiency and cowardice.
The country is worse for it. What we have in most states of the skewed Nigerian federation are monarchs, who brook no challenges. They rule howsoever they like, for themselves and their various families. They have goons all over their states whose duty it is to defend them. If not for the state of our nation where rust is ripeness, do the President and Governors have no choice in implementing the constitution?
Many state chief executives implement and execute projects that would facilitate corruption yet any project that would better the lot of the people is either treated with levity or left undone. The question that readily comes to the mind is: whose interest are the leaders working for? Is it for themselves or the populace?
By: Chidi Enyie
Elele OSPAC Seeks Govt’s Assistance
Elele Security Planning and Advisory Committee has appealed to the state government to come to their aid.
The local vigilante often called ESPAC said the call became imperative following its key role in sustaining peace in the communities.
In a chat with newsmen in his office yesterday, the commander, Daniel Wosa disclosed the unbearable situation his men faced on daily basis without anything to take home.
Wosa said some of his men had threatened to quit the voluntary job since nobody appreciated them.
The commander expressed regret that ESPAC members had volunteered to sacrifice their lives for the society yet nobody appreciated them.
“Some struggle to feed their families. It is unfair …”
“We appeal to governor Nyesom Wike to consider us because of the key role we have been playing in Rivers state.
“Today communities,road users and business men can attest to our untiring effort since we came on board.”
“No more kidnapping, killing and other vices which threatened the peace of the land,” he noted.
“Boys under me who volunteered to sacrifice for the wellbeing of others need recognition,” he stated.
Wosa said there was no security challenge the group could not contend if only government could give them support.
He specifically commended the executive Chairman, Ikwerre Local Government Area, Hon Samuel Nwanosike for his assistance and said if not Ikwerre Council boss the situation would have degenerated.
Wosa said some time now he had been using his hard-earned money to appease his men.
Wosa said it was on record Elele OSPAC had never been found wanting in the cause of its duty and explained that the group worked in collaboration with the conventional police to achieve desired objective
Meanwhile,a youth leader in Ikwerre Local Government, Comrade Eleonu Chukwuka says Hon Samuel Nwanosike’ s achievement in security has given him the second term ticket.
Comrd Chukwuka said Ikwerre Council Boss had written his name in gold by surmounting the security situation in Ikwerre.
The youth leader while chatting with newsmen said the introduction of OSPAC by Nwanosike led to other infrastructural and human capital development and pointed out that peace was key to development.
It is a thing of joy that farmers can return to farm. Normal life has returned.
It is the greatest achievement which snowballed to what we are seeing today in Ikwerre.
Ikwerre people are proud of him and will back till eternity.
Legal Departments In LGAs And Justice Dispensation
Lawyers at the Local Government (LG) Legal Department would supervise and undertake prosecu-torial activities in magistrate courts, and represent their respective local governments in area courts, Magistrates Courts, High Courts, among others.
They would be on hand to render necessary legal advisory services to their local governments.
They could be in charge of advising their LG Chairmen on legal issues relating to issuance of the Customary Right of Occupancy at the LG level, thereby playing roles similar to those being played by the ministries of Justice and Lands at the State level in the Statutory Right of Occupancy. Section 6 of the Land Use Act, 1978 provides: “It shall be lawful for a Local Government in respect of land not in an urban area. (a) to grant customary rights of occupancy to any person or organi-sation for the use of land in the Local Government areas for agricultural, residential and other purposes. (b) to grant customary right of occupancy to any person or organisation for the use of land for grazing purposes and such other purposes ancillary to agricultural purposes as may be customary in the local government area concerned”.
They could take steps to set up (citizens) ADR/Mediation centres at the LG level, as well as render other legal aid/advisory services aimed at helping the local community or to make justice more affordable and easily accessible by local inhabitants.
Establishing a legal department at the LG level will tremendously reduce the pressure of having all lawyers striving to settle down only in major cities, such as Lagos, Port Harcourt, Kano, Onitsha, Aba, Ibadan, Jos, Abuja, Enugu City, Uyo, Warri, Calabar, Kaduna City, etc; lawyers employed by the various local governments would have to relocate to the local council headquarters where they’d live and operate from, with their families.
Establishing a legal department at the LG Level would bring lawyers and legal services closer to the people at the grass-root; residents of local communities will no longer need/have to travel to the major cities in order to get the services of lawyers to draft their various agreements, contracts, or to render other legal services.
Lawyers in the LG Legal Departments will, apart from attending to the legal needs of the local government councils, assist in prosecution of some cases, especially in courts located within the local council areas. This will minimise involvement of law prosecutors in criminal prosecution. Lay police officers‘ and non-lawyers’ continued involvement in criminal prosecution in Nigeria, is partly responsible for the worsening cases of awaiting trial cases and prison congestion in the country.
This is because of their professional limitations in this area, so many of the so-called police prosecutors are not able to match or withstand the legal firework of professionally qualified lawyers who act as defence counsel in courts during criminal prosecutions; these lay police officers and non-lawyers hardly understand the intricacies of formal courtroom proceedings and trial procedure, and more often than not, have very little or no preparation prior to their court appearances.
It may therefore be seen that the clamour for extrication of lay policemen from criminal prosecution is primarily not targeted at creating more jobs for lawyers, but rather at leaving criminal prosecution in the hands of qualified personnel (lawyers) who alone understand the law and are well able to match the expertise of defence counsel in court, in order to ensure that justice was dispensed in good time and more effectively.
Gradually, from among these lawyers, who are LG legal officers, some magistrates or even judges are appointed, just as it is done at the state level.
Establishing a legal department at the LG level would provide huge job/employment opportunities for lawyers in Nigeria.
Imagine, if all the 774 local government areas in Nigeria could create and have legal departments, and each local government (depending on capacity) employs an average of 10-20 lawyers in its legal department, we’d have at least 7,740 to 15,480 lawyers or much more immediately gainfully employed at the local government level.
Establishing a legal department at the LG level would redress the existing inequity and unfairness at the local government level. The following departments already exist in all the LGAs in Nigeria: Education, Health, Agriculture, Finance, Information, and Works. It’s gross marginalisation against the legal profession that there’s not yet a legal department in all LGAs in Nigeria. This obvious anomaly, which has wreaked huge havoc, considering the undeniable importance of law and lawyers in society, needs to be be urgently corrected to provide the needed balance that would make lawyers more relevant to society and move society forward.
B) Stakeholders To Make This All-Important Project A Reality:
The Nigerian Bar Association (NBA) at both the National and Branch levels: NBA has responsibility to set the ball rolling. Indeed, if the NBA does nothing, nothing happens.
The Attorney-General of the Federation of Nigeria, considering that he is the Chief Law officer of the Federation.
Attorneys-General of the various states in Nigeria.
The Chief Justice of Nigeria.
The President of the Court of Appeal.
The Chief Judge of the Federal High Court and the President of the National Industrial Court of Nigeria.
The Chief Judge of the Federal capital High Court and the High Courts of the various States in Nigeria.
The House of Assembly of the various States in Nigeria.
The Nigerian Governors‘ Forum and the Governors of the various States in Nigeria.
The Body of Senior Advocates of Nigeria (BOSAN), the Egbe Amofin Lawyers, the Body of Benchers (BOB), the Eastern Bar Forum (EBF), the Muslim Lawyers’ Association of Nigeria (MULAN), the Mid-West Bar Forum (MBF), the Christian Lawyers’Association of Nigeria (CLASFON), the National Association of Catholic Lawyers (NACL), etc.
C) Conclusion: What Does This Take As A First Step?
It starts with an amendment to the Local Government Law of each State, to create a legal department in the LGAs in the state.
This is long overdue. Provision of necessary logistics and support infrastructure would then follow.
This writer believes that there would be business enough for lawyers in Nigeria, only if the lawyers could, by themselves and working hand in hand with their Bar Associations, put their acts together and stand up to do something concrete and constructive for themselves and their profession.
Time for action is now; there is no time to wait or waste, because time will never be right. Barack Obama said, “the change we desire will not come if we wait for some other person or some other time. We are the ones we’ve been waiting for. We are the change that we seek. A stitch in time saves nine.”
It would be recalled that lawyers under the employment of Local Government Authorities in Rivers state, penultimate week, demonstrated for full recognition and salary increment to match that of their counterparts in the employment of the State Government, while the Authorities are against such on the ground that they (lawyers), are first and foremost, not employed as lawyers by the authorities, thus, may be making an unlawful request.
Udemezue is of the Civil Litigation Department with the Nigeria Law School.
By: Sylvester Udemezue with reports from King Onunwor
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