Duty Of Police To Investigate Alibi

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

V.

1. Ms. Elizabeth O. Adeniji

2. Ms. Aderenle O. Adeniji

3. Administrator-general & Public

Trustee Of Lagos State Court Of Appeal

(Lagos Division)

Ca/L/Ss4/08

Adamu Jauro, J .c.a. (Presided)

Rita Nosakhare Pemu, J .ca

Fatima Omoro Akinbami, J.ca (Read The Leading Judgment)

Wednesday, 20th February 2013

Issues:

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.

Facts:

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,

para. D).

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